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Full text of "A digest of reported cases in the Supreme Court, Court of Insolvency, and the Courts of Mines and Vice-Admiralty of the colony of Victoria, from 1861 to 1885"

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. </. Jones 347 

Derham, In re 5S7 

. Desailly v. Ham 1229, 1230 

De Saxeu. Schlesinger 419, 737 

Detheridge v. Detheridge 523 

Devaney, In re 348, 492 

Dewhurst, in the Will of 1 503 

Dick v. Dick 1162 



COL. 

Dickason's Trusts, In re 534, 535, 826, 

1458 
Dickson, In re 616, 617, 651 

In the goods of 1538 

v. Cane 567 

v. Western Freehold Gold 

Mining Co 1208 

Diggins, Ex parte, in re Sweeney 

381, 64«, 647, 664 

Dignan, In the Will of 1507 

Dight, In re.. 558 

v. Mackay 18, 235 

Dill, In re 175, 176, 1371 

i'. Murphy 176, 177 

Dillon v. Matthews 995 

v. M'Leod 1464, 1469 

Dingsdale, Ex parte Eeg. v. M'Dou- 

gall 227 

Dines v. Parringdon 875, 1093 

Ditchburne, In re 699 

Dixie's Estate, In re 333 

Dixon, In re 692, 695, 698 

v.Perkins 186 

Dobbs v. Bromfield 1133 

Dobson v Lyons 492 

v. Sinclair 258, 274, 1115, 

1301 

Docker v. The Queen 1284, 1285 

Dodd, In the Will of 1555 

Dodds, Ex parte 172 

v. Foxton 169 

Dodgshun v. Moss 1246 

Dodgson v. Clare 12, 549, 550 

v. Ginn 1183, 1197 

Dogherty, In the Estate of 1554 

Dohrmann, In the Will of 1511 

Dolan, Ex parte 1309 

Donald, In the Estate of 1525 

Donaldson, v. Couche 1303, 1304 

v. Hutchins 338 

v. Llanberis Co 924 

v. Vine 1325 

v. Woolcott 257 

Donegan, In the Will of 1513, 1514 

Donnelly v. Graves 842, 1427 

Doolan, In the Will of 1498 

u.Hill 1419 

Doria v. Bank of Victoria 82 

Dougharty, Ex parte, in re Trans- 
fer of Land Stat. ...1305, 

1306, 1310 

— v Dougharty 1219 

— '■ v. London Guarantee 

Society 490, 1247 

Douglas v. Lewis 537 

o. MIntyre 234,477 

v. Eeynolds 1153 

Douglass v. Simson 109, 631, 632, 

1364 

Doull, In the Estate of 864, 865, 

1550 

Dowling, In re 65 

v. Dowling , 517, 524 

Downey, Ex parte, in re Shire of 

Alexandria 214 

In the Estate of 1550 

Downie v. Graham 474 

and Murphy, In re 613 

Downing, In the Estate of 23 

In the Will of 1575 

Dowsettu. Smith 1089, 1316 



XXI. 



TABLE OF CASES 



xxn. 



COL. 

Downton, Ex parte, in re * Licensing 

Act, 1876" 5 829 

Doyle, Ex parte Reg. v. Clark 1316 

In re 613,614 

f. Sparling 835 

v. Vance 28 

Dredge v. Blackham 1296 

v. Matheson 17,1446 

Dreher, Ex parte Reg. v. Miller ... 1117 

783 

Dron v. The Queen 327 

Drevermann u. Doherty 1311, 1312, 

1475 

Droop v. Colonial Bank 78, 232, 436, 

473, 560, 1071, 1073, 

1406, 1407 

Droscher, Ex parte Keg. v. Orme 883, 

953 

Drought r. Schonfieldt 863 

Drouhet, In re 593 

Drummond, Ex parte Beg. v. 

Gaunt , 1381 

' v. Drummond 510 

Dryden, In re 67 

v. Dryden 15, 17, 19, 41, 45, 

245, 408, 417, 461, 

503, 847, 1431 

Drysdale, In re 590, 591, 600 

v. Johnston 808 

Duckett v. Belgian Export Co. ... 1293 

Duffy, Ex parte 1331 

In re 88, 89 

v. Tait 928 

Dugdale v. Martin 1382 

Duggan v. Duggari 513 

Duhig v. Shannon 1197 

Dunphy, In re 670, 674, 679 

Dummelow v. Mayor of St. Kilda 859, 

860 

Dumont v. Miller 1419 

Dunoyer, In the Estate of 1540 

Dunbar, Ex parte, in re Drummond 937 

In the Estate of 1542, 1555 

Duncan, Ex parte Eeg. v. Moore... 1110 

and Morrison, In re 702 

v. Shrigley 1580 

Dunlop v. London Chartered Bank 85 

v. Tutty 108,109,759 

Dunn, In re 1530 

— — u.Dunn 511 

v. Hoyt, In re " The Albion" 1318, 

1327, 1328 

v. Lynch 842 

v. Walduck 239 

v. Wilson 1316 

Dunne, In rn 606 

Dunstan v. Stewart 905 

Durant v. Jackson 938, 943, 952 

Durbridge, In re 908,1434 

v. Seholes 179 

Dwight, In re 1377, 1378 

Dwyer.Inre 586,675, 692, 

694, 696 

v. Macartney 366 

Dyer, In the Estate of 1502 

In the Will of 1516, 1558 ' 

Dyke, Ex parte Beg v. Badke 208, 

1139, 1140 

Dykes, Ex parte 1326 

Dyson v. Union Bank 337, 338, 1089 

Dyte, In re '. 693, 697, 715 



E. 



Eaglehawk, Mayor of v. Wadding- 
ton 1492, 1493 

Eagles v. Blain 1470, 1471 

Early v. Barker 979, 988, 998, 1000 

Easby, The, In re 1323 

Eastwood, In re 596 

In the Will of 1525 

v. Bullock 423 

v. Scott 480 

Ebsworth, In the Estate of 1559 

Ecroyd v. Bennetto 1045 

v. Davis 71 

Eddy v. Working Miners' Gold 

Mining Co 152,433,733 

Eden, The, In re 1323 

Edgertonw. Snowball 255 

Edlin, Ex parte Eeg. v. Justices of 

Eichmond 561,776, 782 

Edmonds, Ex parte Eeg. v. Panton 75 
Edmondson v. Macan...l2, 39S, 453, 487 
Edwards, Ex parte Eeg. v. Cleve- 
land 811,812 

In re 1459 

v, Graham 386, 432 

Egan, Ex parte, in re Cope 850 

In the Will of 1560 

Egdin v. Horner.. .1087, 1088, 1096, 1097 

Elliott, Inre 1502 

Ellis, In re 623 

In the goods of 1543, 1545 

v. Geach 1139 

Ellis' Settled Estates, In re... 1310, 1440 

Trusts, Inre... 1564 

Ellison, Ex parte, in re Transfer of 

Land Stat 791,1408 

Elms v. M. and H.B.U. Eailway 

Co 1216 

Eltham, Shire of v. The Queen ... 831 
Embling v. M'Ewan 1249 

v. Whitchell 1472, 1473, 1479 

Emerald Hill, Mayor of u. Eord ... 860 
Emmott, Ex parte Eeg. v. Woods 496, 

778 
England, Ex parte Beg.i). Temple- 
ton 1267 

v. M. and H.B.U. Eailway 

Co 1216 

v. Moore 63, 64, 655, 711, 

1131, 1176 

English, In re 609 

v. English 206,538 

v. White 273, 1047, 1048 

E.S. and A.C. Bank v. Adcock, 239, 1238 

v. Lavars 99 

v. Levinger ... 86, 

839 

Enwright v Macaw 1479 

Equitable Life Association Co., Ex 

parte, in re Martin 207, 208 

Essendon and Plemington, Mayor 

of, Ex parte Eeg. v. Cope ...126, 128, 

129 
Essendon and Flemington, Mayor 

of v. Blackwood 1261 

Essendon and Plemington, Mayor 

oft;. Ninnis 1589, 1590 

Ettershank v. Curr 100 

v. Dunne 724, 1370 

v. The Queen 325, 484, 792, 

793, 794 



xxm. 



TABLE OP CASES. 



XXIV. 



COL. 

Ettershank v. Russell 1230, 1231, 

1275, 1276 

v. Zeal .414, 1273 

Eureka Extended Co. v. Allen.;. ... 906 

Evans, In re 89,1549 

v. Board of Land and Works 49 

v. Guthridge 3, 4, 6, 64, 65, 

279,464,562,570,1123, 1193, 

1194, 1202, 1435, 1436 

u.Martin 1077 

v. Nicholson 1042,1043 

v. The Queen.. .67, 787, 789, 794, 

1582 

v. Stevenson 197, 724 

Everingham o. Waddell...245, 216, 1248 
Ewart, Ex parte Beg. v. Adams... 750 

Ewing, In the Estate of 1536, 1555 

Extended Cross Reef Co. v. Creaver 956, 

974 
Extended Hustler's Freehold Co. 
v. Moores Hustler's Freehold 
Co 33, 34, 914, 967 



F. 



Fagan, In the "Will of 1553 

Fahey v. Ivey 240 

v. Koh-i-noor Co 943, 947, 

956, 964, 1001 

Fairbairn v. Clarke 13, 653, 659 

•• u. Monaghan 397 

Falla,Inre 706 

Fallu,Inre 706 

Fancy v. Billing 938, 947, 948 

v. North Hurdsfield Gold 

Mining Co 656, 947 

Fanning v. London Guarantee and 

Accident Co 490 

Faram v. Kerr 1293 

Farie, In the Will of 1546 

v. Frost 405 

Farley, In the Willof 1521, 1538 

Farham v. Thomas 1122 

Farquhar, Ex parte Reg. v. Webster 775 

Farran v. Bowman 1021 

Farrell, Ex parte Reg. v. King 283 

In re 661, 662, 674, 698, 

699 

v. Evans 14,436 

v. Imperial Fire Assurance 

Co 49 

Fat Tack, Ex parte 1118, 1146 

Fattorini v. Band and Albion Con- 
sols 965, 1001 

Fattorini v. Clemence 197 

v. Fattorini 739 

Faussett, Ex parte Reg. v. Mol- 

lison 1336 

Fawcett, In re 604 

Fawknerz/. Fawkner 1171, 1190 

Fearnley, In re caveat of, and In re 
Transfer of Land Stat. 1210, 1410, 1411 

Feehan, In re 867 

Fellows, In the Will of 441, 807 

v. Board of Land and 

> 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 

;;<Eisher 535 

Tatham v. M'Gill 993 

Tattersallu. Slater 238 

Taylor, Ex parte 803, 804 

Beg. v. Templeton 836 

• In re. ..345, 665, 1527, 1548, 1556 

IntheWillof 1158 

D.Patterson 1268 

w. Phelan 1109 

v. Plumpton 350 

v. Port 263,264, 1230 

v. The Queen 802 

v. Bobinson 1281, 1282 

v. Southwood 5, 6, 42, 406 

v. Stubbs 987 

Toague w. Earrell 102, 428 

Teeee, In re 870, 874 

Tennant v. Bell 539, 540 



Tennent v. Ritchie, Inre 550 

Terry v. Strachan 1131, 1132 

v. Terry.. .505, 506, 509, 511, 512, 

523, 527, 528 

Thackwray v. Winter 1585, 1587 

Thomas and Cowie, In re.. .619, 736, 588 

Ex parte Beg. w. Medical 

Board 898 

Inre 29,671,672,690 

IntheWillof 1569 

v. Goldsbrough 4 

v. Kinnear 921, 1003 

w.Marks 1292, 1293 

Thomas's Will, In re 45,46, 1377 

Thompson, In re.. 117, 180, 181, 493, 606 

W. B., Inre 650 

v. Begg...933, 982, 989, 990, 

1007, 1008 

w.James 1023 

w. Land 921, 922 

v. Marshall 336, 1294 

v. Mayor of Pitzroy ... 857 

v. Rowe 268, 276 

. v. Tullidge 234, 1168 

Thomson, Ex parte Reg. v. Call... 749 

w. Pohlman 129, 

272, 882 

Inre 612, 645 

IntheWillof 1506 

v. Andrew 262, 265, 275 

v. Cunningham e 1435 

Thorburn v. Buchanan ...483, 791, 792, 

813 

Thorn, In the Will of 1541 

Thornhill, In re 1450 

Thornley, In the goods of 1542 

Thurling w. North Cornish Quartz 

Mining Co 880, 881 

Thui low v. Perks 400, 432 

Tidymanv. Collins 114, 115 

Tiernan v. Nolan 1187 

Tierney v. Halfpenny ...387, 406, 1403, 
1404, 1429, 1430 

Time well v. Virgoe 47 

Tobias, Ex parte 458, 459 

Tobin w. Mayor of Melbourne 1217, 1222, 

1424 

Toe u.Day 804 

Tognini, Ex parte Beg. w. Taylor 836 
Tolstrup, Ex parte Beg. v. Leech... 126, 

1029, 1030 

Tomkins v. Cunningham 47, 48 

v. Fleming 791 

Tommy Dodd Co. v. M'Clure 1017, 

1018, 1020, 1366 

v. Patrick 277, 1028, 1368 

Toohey v. Steaines 477 

Topham v. Christie 1076 

Topper, Exparte. in re Smith 222 

Torrance, Ex parte Beg. w. Bobin- 
son 224, 1255 

Tozeri). Somerville 799, 1354 

Tracy v. Luke... 367, 368, 369, 427, 1088 

Trader's Co. v. Sutton 1229 

Trail, In the Estate of 1530 

Trainor v. Council of Kilmore ...41, 230, 

1475, 1476 

Treacey v. Balderson Ill 

Treacyu. Treacy 511,519 

w. Watson 71, 131, 132, 1171 

Treen v. Cameron 369 



lxix. 



TABLE OF CASES. 



lxx. 



COL. 

Tregurtha, In the Will of ...1499, 1553 

Trenery v. Stewart 1284, 1368, 1370 

Trengrove v. Trengrove 532 

Trestrailu. Trestrail 508, 519, 520 

Trethowan, In re 1502 

Trevarrow, In re 608, 619 

Trevascus, Ex parte, in re Com- 
panies' Act 156 

Trewhella v. Willison 549 

Tribble, Ex parte 833 

Troedel v. Colonial Bank 80 

Trotman v. Shankland 1113 

Trudgeon, Ex parte Eeg. v. Wal- 
ker 776 

Trump, In re 662, 712 

Trust and Agency Co. «. Greene... 1245 
Trustees, Executors and Agency 

Co. zz.Eoy 1565. 1568 

Truswell v. Powning 937, 938, 942 

Tubby, Ex parte Eeg. v. Benson 

779, 1112, 1117, 1299, 1300 
Tucker v. Allen 809, 810 

In re 1545 

Tuckett v. Alexander 6,623, 1065 

Tulk v. Davies 94 

Tullaroop, Shire of, Ex parte Ee>_'. 

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<L 
advance, andajso lending a sum to enable them 
to pay the composition to the other creditors. 
The wool shipped had been sold, and, as plain- 
tiffs believed, had realised a large profit over 
their debt to the defendants. They therefore 
sought for an account. The defence was that 
the defendants obtained the wool not merely as 
security, but that it had been actually assigned 
to them. There was some evidence of such an 
arrangement, but not enough to. prove a con- 
cluded bargain to that effect. Accounts ordered 
— the defendants to be charged with interest 
upon the balance in their hands after satisfac- 
tion of the sum of ,£694 18s. 9d., at the same 
rate as they were entitled to interest upon 
such sum. Thomas v. Goldsborough, 1 A.J.B. 
113. 

2. Reopening Settled Accounts. 

Upon what Terms granted.] — Where a defend- 
ant through poverty is unable to attend in the 
Master's office when accounts are taken against 
him, this is no ground for permitting Mm to 
reopen those accounts, and if relief be given 
him it will only be upon payment both of the 
costs of the account and of the application. 
Kendell v. Thomson, 1 W.W. and a'B. (E v ) 141. 

What are, and what are not, Settled Accounts- 
Course of Dealing between Trustees and. their 
Agent.] — A testator, after expressing his confi- 
dence in M., directed his trustees, ijo. employ 
him as their agent and solicitor. M. was so 
employed> 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. 
<E.,) 241. 

"Permanent or for Life.] — A. by deed poll exe- 
cuted a declaration of trust, : stating he held 
certain property upon trust inter alia to pay 
~B. "a sum of .filOO per annum," and by will 
lie confirmed this deed poll. Held that B. took 
a perpetual annuity of J3100 per year. McKinnon 
«. Mclvm.es, 3 V.L.E. (E.,) 253. 



Annuity for Maintenance of Children during 
Infancy held to be an Annuity for Life of Annuitant 
— On what Property Chargeable.] — See Westwood 
*>. 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. 
<E.,) 166. 

Taking Bond for Security off File.] — A plaintiff 
•obtained leave to appeal to the Privy Council 
•on the usual terms as to security for costs, &c, 
and allowed two years to elapse without moving 
in the appeal. He applied to take off the file 
-a bond which he had given as security for the 
repayment of costs. Held that the Court had 
no power to grant the application, the case 
being no longer in the Court, or within its 
jurisdiction. Goldsbrough v. McCulloch, 1 V.E. 
(L.,) 192; 2 A.J.B., 1. 

6. Practice. 
Leave to Appeal — Bond for Performance of Terms 
—Alteration in — Time for taking Objection — Power 
■of Supreme Court to Rectify.]— Where a rule for 
leave was obtained to appeal to the Privy 
Council on certain terms, and two sureties 
entered into a bond for the due performance of 



those terms by the appellant ; and where the 
rule and bond were subsequently, without the 
knowledge or consent of the sureties, but with 
the knowledge of the appellant's attorney, 
drawn up with an additional provision extend- 
ing the liability of the sureties, and the bond 
was executed by them under the impression 
that it was in accordance with their original 
undertaking, and no notice or knowledge of the 
alteration reached the sureties till notification 
of the result of the appeal arrived in Victoria ; 
Held that the time within which the sureties 
could take objection to the alteration should 
be considered to run from the time when the 
news of the result of the appeal reached Vic- 
toria ; and that there was power in the Court 
to rectify the mistake by ordering the bond to 
be cancelled on payment of the amount for 
which the rule ought properly to have been 
drawn up. Bateman v. Moffatt, Moffatt v. 
Hearn, 1 V.E. (L.,) 107 ; 1 A. J.E., 97. 

I Making Privy Council Order as to Costs an Order 
| of Court — Notice to Respondent.] — Motions by 
petitioners (all similar in effect) that order of 
Privy Council as to costs may be made an 
order of Supreme Court. Held it was necessary 
to serve respondent with notice of motion and 
it would be better to move for taxation of 
costs. On application being renewed Ordered 
that order of Privy Council be made an order 
of Court, and that costs of appeal be referred 
to be taxed. McMillan v. The Queen, Winter 
v The Queen, 1 V.L.E. (E.,) 253. 

Costs of Preparing Transcript — Jurisdiction of 
Court.] — The costs of an appeal to the Privy 
Council, up to the order for leave to appeal are 
in the cognizance of the Court, and should be 
taxed by the Master. All subsequent costs, 
inclusive of the costs of preparing the transcript 
of the case for transmission to the Privy 
Council are, if not beyond the jurisdiction of 
the Court, certainly not within the scope of the 
present (April 16th, 1878,) rules of Court. 
Blackwood v. Mayor, fyc, of Essendon and 
Flemington, 4 V.L.E. (L.,) 99. 

Costs — Taxation— Costs Prior to Transmission of 
Case — Leave to Appeal.] — The costs prior to the 
transmission of a case for appeal to the Privy 
Council may be taxed on the rule giving leave 
to appeal. XJrquhart v. McPherson, 4 V.L.E. 
(L.,) 290. 

Summons in Chambers — 15 Vic, No. 10, Sec. 19 — 
Bight to Eegin.] — The party supporting the 
summons has a right to begin on a summons 
in Chambers under the Act 15 Vic., No. 10, 
Sec. 19. Be Duffett, ex parte McEvoy, 8 V.L.E. 
(L.,) 160. 



(7) Other Points. 
Rule to Rescind Order for Leave to Appeal.] — 
Where defendants had obtained liberty for leave 
to appeal, and had paid the .£500 required into 
Court, on rule nisi by defendants to rescind 
the order, Held that Court had no jurisdiction, 
and rule discharged. Byrnes v. Clough, 
2 W. W. & a'B. (L.,) 17. 



39 



APPEAL. 



40. 



Adding Costs of Appeal to Judgment of Supreme 
Court.] — Allowing the successful party to a 
petition against the Crown, which has gone on 
appeal to the Privy Council, to add the costs of 
the appeal awarded by the Privy Council to 
his final judgment, is not a violation of the 
principle restraining the Supreme Court of 
Victoria from interfering with a case after an 
appeal to the Privy Council, since that would 
be the most efficacious mode of giving effect to 
the judgment on appeal. Regina v. Dallimore, 
3W. W. & a'B. (L.,) 131. 

Two Orders.] — Leave was given under 15 Vic, 
Wo. 10, to appeal and the security was per- 
fected, and the appellants moved for leave to 
appeal, having given the security required in 
the former order. Molesworth, J., made the 
second order, intimating that his granting the 
order did not prove that it was necessary. In 
re Armyiage, 3 V.L.E. (I. P. & M.,) 41. 

II. To Pull Court. 

(1) Jurisdiction and Powers of the Court. 

Except by consent the Court will not hear 
an appeal from a decree unless the decree be 
drawn up. Waddell v. Patterson, 1 W. & W. 
(E.,) 43. 

Objections to Form of an Appeal.] — Objections to 
form of an appeal should be he^rd by Pull 
Court and not by Primary Judge. Harrison 
v Smith, 6 W. W. & a'B. (E.,) 182. 

The Pull Court will in certain instances con- 
trol the exercise of discretion by the Primary 
Judge. Learmonih v. Bailey, 1 V.L.E. (E.,) 
191. 

For Facts— See S.C. under Practice and 
Pleadings — Bill. 

Will — Mental Capacity— Questions of Fact.] — In 
an appeal from a judgment of Molesworth, J., 
in which he decided that there was not suffi- 
cient evidence to show that a testator knew 
what he was doing, and that the will was in- 
valid, Held that the Full Court in a case of 
this nature, in which the principles of law are 
very intelligible, and in which the real question 
is one of fact, will not disturb the judgment 
of the Primary Judge unless it is manifestly 
and unquestionably wrong. In the will of 
Wolff, 1 V.L.E. (I. P. & M.,) 21. 

Equity Appeal Sittings — Court cannot take General 
Business.] — The Full Court sitting for the 
hearing of Equity appeals will not entertain 
any other business than such appeals, and 
consequently will not hear a motion to turn 
over a prisoner in the sheriff's custody for 
contempt. Sturgeon v. Murray, 8 V.L.E. 
(E ,) 41. 

Appeal from Discretion of Judge — When Court will 
Disturb.]— The Appellate Court retain a con- 
trolling power in all cases in which a Judge 
has . a discretion vested, in him by a statute 
which does not declare Tiis decision tq, be. final. 
The Court "will not exert that power, and over- 



rule the Judge's decision, merely because it 
does not agree with him in opinion as to the 
grounds on which his discretion has been exer- 
cised, unless there is no evidence to support 
his decision ; or it appears that the Judge has 
been misled by false evidence ; or that injustice 
will be done through the mistaken exercise of 
his discretion. Merry v. The Queen, 10 V.L.E. 
(E.,) 135. 

Where the defendants desired to have a 
commission to examine a person who was a 
most important witness for the defence, and no- 
other witness could serve as a substitute for 
him upon certain questions on which the 
defence mainly rested, and there were no means 
by which such person could be compelled to- 
come to Victoria and submit himself for exami- 
nation there ; Held that the case came within 
the third of the above exceptions, and an order 
refusing a commission was reversed on appeal, . 
although a former commission obtained by 
some co-defendants, employing the same solici- 
tor, had been allowed to expire without any 
evidence being taken under it. Ibid. S.C. 
6 A.L.T., 14. 

(2) When Appeal lies. 

From Judge in Chambers— 19 Vic.N 0.13, Sec. 4.] — 
An appeal lies to the Full Court from an order 
of a Judge sitting in Chambers, the functions ■ 
of the single Judge being by the Act subject 
to an appeal to the Pull Court. In re Kingsland, . 
6 W. W. & a'B. (I. E. & M.) 10, 13; N.C., 33. 

From Exercise of Discretion of Primary Judge.] — 
In a suit by an assignee of plaintiff's rights- 
under a decree, the plaintiff having refused to ■ 
prosecute the suit, the assignee moved, upon 
notice to the plaintiff and the defendants, for 
conduct of the suit and for an order on the- 
plaintiff to attend in the Master's office for 
taking accounts. The Primary Judge refused 
the application. On appeal, Held that in the 
absence of precedent, and upon a mere matter 
of practice, the discretion of the Primary Judge- 
would not be revised on appeal, and appeal 
dismissed with costs. Watson v. Kyte, 2 V.E.. 
(E.,j 61 ; 2 A.J.E., 6, 41. 

Opinion Given by Judge under Sec. 61 of Statute 
of Trusts.] — An appeal does not lie against the- 
opinion of a judge given under Sec. 61 of 
"Statute of Trusts 1864" No. 234. In re 
Isaac Folk, 3 V.L E. (E.,) 55. 

From Order upon Further Directions.]— An 
order on further directions declared debts, 
legacies, funeral and testamentary expenses, 
&c, payable proportionately but of reversionary 
realty and personalty; and gave liberty to the 
trustees to sell the reversions, subject" to the' 
life estates. The trustees declined to exercise 
the liberty, and a subsequent order was made 
directing an absolute sale forthwith. From 
this, second order the trustees appealed. 
Held, that the, appeal, was too late; it, should, 
have been brought against the order on further 
directions. Attorney -General v. M'Pherson, 4« 
V.L.E. (F.,) 51. 



41 



■APPEAL. 



42 



For Costs.] — As a general ru i 6j an a pp ea l f or 

• costs will not lie; yet, where in a suit, in sub- 
stance for redemption, but in form charging 
the mortgagee with improper dealings with 
the mortgaged property, with a fraudulent 
disposition of it, and retention of the proceeds, 
the mortgagee had been decreed to pay the 
costs ; Held that such mortgagee was, under the 
special circumstances of the case, justified in 
appealing. The question of costs, as considered 
by the Court of Appeal, must be considered as a 

■ question of principle and not of discretion, 
and the Court of Appeal will not interfere 
-with decision of Primary Judge in matters 
of costs, except under peculiar circumstances. 
United Hand in Hand fyc, Company v. National 
Bank of Australasia, 4 V.L.E. (B.,) 173, 191. 

See also Dryden v. Dryden, 8 V.L.E. (E.,) 
177, 181 ; 4 A.L.T., 25, under heading Costs— 
-Of and against particular persons. 

Costs — Discretion of Primary Judge.] — An 
. appeal will not lie from the discretion of the 
Primary Judge in allowing or disallowing costs 
out of the estate to a person unsuccessfully 
-attempting to obtain probate. In the Will of 
Abel, 4 A.L.T., 92. 

For costs.] — Where an executor, who was 
-nominally a defendant, acted with the plain- 
tiffs, and was virtually a co-plaintiff, and the 
plaintiff failed in the object of the suit, Held 
per the Full Court, that he was not entitled to 
appeal on the ground that his costs were not 
.allowed him out of the estate, unless he 
appealed from the whole decree made, and 
succeeded in- establishing that he had been 
right throughout in his view. Leahy v. Light- 
Joot, 8 V.L.E. (E.,) 344 ; 4 A.L.T., 109. 

Judge in Chambers — Refusal to grant Commission 
— 19 Vic, No. 13, Sec. 5 ] — An appeallies, under 
;Sec. 5 of 19 Vic, No. 13, to the Pull Court 
from a decision in Equity of a Judge in 
-Chambers, refusing to grant a commission to 
-examine witnesses abroad. Merry v. The Queen, 
10 V.L.E. (E.,) 135. 

(3) Notice and Grounds of Appeal. 

Semble. — That the mere fact of any particular 
ground of appeal being included in the notice 
-of appeal is not to bind the Court to take 
notice of it, if it be not opened or alluded to in 
.argument. Travnor v. the Municipal Council 
■ifKUmore, 1 W. & W. (E.,) 293, 307. 

" Opposite Party" — 'Who is ] — A co-defendant 
is not an " opposite party," so as to render it 
necessary to serve him with notice of appeal, 

• especially when he has not appeared at the 
hearing. London and Australian Agency Com- 
pany Limited, v. Duff, 5 W.W. & a'B. (E.,) 19, 
.26. 

What Grounds Sufficient.] — Where a bill has 
'been dismissed with costs, a notice of appeal, 
stating as the only ground — that the Judge 
dismissed the bill, with costs, whereas he 
•ought, having regard to the evidence, to have 
:made a decree, as prayed— is sufficient. The 
ddreswicJc Grand Trunk Gold Mining Company, 



Registered, v. Hassall, 5 W.W. & a'B. (E.,) 
49, 75. 

" Notiqe of intention " without word "desire."] — 
The Act 19 Vic, No. 13, Sec. 5, prescribes 
no particular form of notice of appeal, and 
"Notice of intention," without using the word 
" desire," is sufficient. Harrison v. Smith, 6 
W.W. & a'B. (E.J 182 ; 1 A.J.E., 78. 

A notice of appeal where deposit money was 
not paid, and case not set down for hearing,was 
set aside on motion for irregularity. Patent 
Composition Pavement Company v. Mayor, 8[c., 
of Richmond, 1 V.L.E. (E.,) 50, 55. 

Notice of Appeal — Signature —Corporation.] — A 
notice of appeal is sufficiently " signed hj the 
person giving the same," if it be under the 
seal of a corporation appealing. Melbourne 
and H.B.U.R. Company v. Town of Richmond 
and Borough of Sandridge, 4 V.L.E. t (L.,) 81. 

A notice of appeal given by a corporation, 
was sealed with the corporation seal, but the 
seal was not attested by the secretary and 
directors. There was an express provision in 
the Articles of the Association that proceedings 
requiring signing should be signed. Held that 
the notice was sufficient. Victoria Sugar 
Company v. Borough of Sandridge, 4 V.L.E. 
(L.,) 83. 

(4) Time for Appeal and Payment of Deposit. 

Eight of Appeal when it runs from — Death of 
Party before Judgment.] — Where a party to a suit 
dies after judgment reserved, and the decree 
is subsequently made, the right of appeal runs 
from the date of the Court pronouncing the 
decree, and the court will not ante-date it. 
Colonial Bank of Australasia v. Pie, 6 V.L.E. 
(E.,) 186. 

Deposit — Consolidation of Appeals.] — Where a 
decree has been made on further directions, 
and an order overruling exceptions to Master's 
Eeport, on motion for leave to appeal froni 
both without payment of second deposit, Held 
that the Court had no power to waive the 
condition precedent as to the deposit for the 
second appeal. Australian Trust Company v. 
Webster, 2 W. & W. (E.,) 99. 

" Semble the acceptance of a cheque for the 
.£50 deposit money is a sufficient compliance 
with the Act 19 Vic, .No. 13; if the clerk 
accepts the cheque he does it at his own peril 
to make it good." Harrison v. Smith, 6 W.W. 
&a'B. (E.,) 182; 1 A.J.E 78. 

Two Defendants Answering Separately Joining on 
Appeal — One Deposit. — 19 Vic, Ho. 13, Sec. 5.] — 
Where two defendants, who have answered 
separately, join on an appeal, under Sec 5 Of 
the Act 19 Vic, No. 1 3, only one deposit of 
,£50 is necessary. Merry v. The Queen, 10 
V.L.E. (E.,) 135, 139. 

(5) The Hearing. 

In appeals, it is the practice in the Supreme 
Court that the appellant should begin. Taylor 
v. Southwood, 1 W. & W. (E.,) 29, 32. 



43 



APPEAL. 



44 



Where no Appearance for Appellant.] — In an 
appeal in Equity where there was no appear- 
ance for appellant, the Court dismissed the 
appeal, so as to obviate any difficulty which 
might arise in the event of an appeal to the 
Privy Council, and held that it was not proper 
in such a case merely to strike out the appeal. 
Graham v. Graham, 3 A.J.K., 89. 

(6) Security for Costs of Appeal. 

Bet urn of Deposit.] — Where there was no 
appearance for the respondent upon an appeal, 
and the appeal was dismissed, order made that 
the .£50 deposit should be returned to the 
appellant. Leahy v. Lightfoot, 8 V.L.E. (E.,) 
344, 355 ; 4 A.L.T., 109. 

(7 ) Staying Proceedings pending Appeal. 
Staying Proceedings Pending a Judgment Re- 
served.]— An appeal to the Full Court having 
been heard, and judgment reserved, Held by 
the Full Court (dissentiente Molesworth, J.) 
that proceedings for recovery of costs under 
the decree be stayed pending the delivery of 
judgment, notwithstanding that there was no 
notice given of the motion for such order. 
Larnach v. Alleyne, 2 W.W. & a'B. (E.,) 39. 

How far a Stay to Proceedings — Further Direc- 
tions.] — An appeal to the Full Court against a 
decree confirming Master's Eeports was 
pending when suit came on for hearing on 
further directions. Held that it was no bar to 
the hearing and case heard. The Attorney- 
General v. Boyd, 3 A.J.E., 127. 

Order rescinding an Order of Full Court.] — 
Where the Full Court had made an order in an 
application in the cause, and had directed 
certain issues to be sent to a jury, which were 
found in favour of the plaintiffs, and the 
Primary Judge had made an order rescinding 
the order of the Full Court so far as it related 
to the impounding of certain proceeds of a 
mine, the plaintiffs intending to appeal from 
the order of the Primary Judge, moved for a 
stay of proceedings on the order of the Full 
Court, Held that on the point submitted to the 
jury their finding was conclusive for the pur- 
poses of the interlocutory applications, and 
motion for stay of proceedings refused. 
Learmonthv. Bailey, 2 V.L.E. (E.,) 85. Affirmed 
on appeal, Ibid, 239. 

Appeal from Order directing Issues — Issues to be 
tried before Appeal could be heard.] — At the hear- 
ing of a case an objection for want of parties 
was overruled, and order made directing issues 
to be tried at the next sittings at nisi prius, on 
August 2nd. The defendants lodged appeals, 
on the grounds that the objection for want of 
parties was improperly overruled ; that plaintiff 
nad no ground for relief in Equity ; and that 
no issues ought to have been directed, or, if 
any, that they should have been in the form of 
the issues presented in the bill and answers. 
The next sittings to hear Equity appeals was 
not till September 1st. Mr. Justice Molesworth, 
■while holding that the objection for want of 
parties was good, and that though issues should 
have been directed it was doubtful if they had 



been presented in the proper form, nevertheless 
refused to allow a stay of proceedings, on the* 
ground that, inasmuch as if the appeal were 
successful the trial would go for nothing; he 
would not prevent the plaintiff from going on 
at his own risk, if he were desirous. White v- 
Hoddle, 1 A.L.T., 203. 

(8) Costs of Appeal. 

Usual Eule at Law — Departure.] — A suit in a 
Court of Mines for defining boundaries at the 
hearing turned out not to be a case for 
defining boundaries, but one in which one- 
party denied the other's right in toto, and 
should therefore have been dismissed. The- 
Judge did not dismiss it, and a question of 
fact having arisen, which was deemed material, 
and could only be determined by an issue, an 
issue was framed, and tendered in a form which 
could decide nothing conclusively on the poinb- 
No objection to the form of the issue was made- 
by the Judge, but he rejected it as if no issue 
at all would avail, and dismissed the suit. The 
Judge's direction was wrong as to the question 
of fact. Upon appeal to the Full Court, Held,. 
that though the suit might have been dismissed- 
by the Judge of the Court of Mines as wrongly 
framed, yet as the ease had miscarried on two 
other points which arose, but were not argued, 
the appeal should be dismissed; but being- 
dealt with not on the points principally dealt 
with in the case, but on the other points appear- 
ing but not argued, the usual rule of dismissing; 
an appeal with costs should be departed from, 
and no costs allowed. Banks v. Granville, 1 
W. & W. (L.,) 158. 

The general rule is that the successful 
appellant is entitled to his costs, unless there, 
are special circumstances to deprive him of 
them. Solomon v. Miller, 2 W.W. & a'B. 
(E.,) 135. 

Where an appellant is partly successful the- 
rule in the above case holds good. Learmonth 
I, 1 V.L.E. (E.,) 34. 



When a bill has, on the ground of the 
misconduct of the defendant, been properly 
dismissed without costs, if the plaintiff appeal 
and fail, the appeal will be dismissed with- 
costs. Mogg v. Lord Raglan and St. Amaud G. 
M. Company, 4 V.L.E. (E.,) 138. 

Demurrer — Overruled by Straining of Pleading.}-, 
— Where a demurrer is overruled and equity 
discovered by straining the pleading, in such a 
case the general rule that a successful party 
on an appeal is entitled to his costs will not be 
followed, and order will be made without costs.. 
United Hand and Band Company v. National 
Bank of Australasia, 5 V.L.E., (E.,) 74. 

Appeal Partly Successful. — Where in an appeal 
against an order of the Primary Judge upon, 
exceptions to Master's Eeport, the appellant 
succeeded on one ground only out of four,, 
each party had to abide his own costs. 
Attorney-General v. Huon, 7 V.LE. (E,) 30,, 
46. 



45 



APPRENTICE. 



46 



(9.) Cross Appeal and other Points. 

When necessary.]— Where a plaintiff had 
succeeded upon one branch of a motion, but 
had failed on the other, and the defendant 
appealed from that part of the motion upon 
■which Plaintiff had succeeded, eld, that to 
enable the Court to entertain the question as 
to the plaintiff's rights upon the part of the 
motion upon which he had failed, it was not 
necessary for. him to lodge a cross appeal. 
Wolfe v. Bart, 4 V.L E. (E.,) 125. 

Variation — How Obtained.] — A respondent may, 
without lodging a cross appeal, ask to have the 
decree altered. On an appeal the whole decree 
is open. Attorney- General v. Lansell, 8 V-L B. 
(E.,) 155, 169. 

Appeal on Facts.] — Per Holroy d, J. The reason 
of the rule against appeals on facts does not 
apply to a case where one of the appellate 
Judges has, as Primary Judge, taken the 
evidence, though the case is heard by another. 
McClwre v. Marshall, 9 V.L.E. (E.,) 84, 92. 

III. From Master in Equity. 

Evidence — Demeanour of Witnesses.] — Upon 
appeals from the Master to the Primary Judge, 
or from the Primary Judge to the Pull Court, 
on questions of fact, the appellate Court should 
not regard the prior tribunal as having any 
larger means of information by observing the 
deportment of witnesses or the like. But, per 
Barry, J. (in the Pull Court,) where the Master, 
having seen the witnesses and attached weight 
to their demeanour, has found upon a question 
of fact, there must be a strong case made out 
by the other side to warrant a reversal of the 
finding, and his decision should not be dis- 
turbed on mere inference. Dryden v. Dryden, 
4 V.L.E. (E.,) 148. 



APPEARANCE. 

See PBACTICE AND PLEADING. 



APPORTIONMENT. 

Bent Due at Date of Death — Sot Apportionable.] 
— A testatrix left all her property to trustees 
upon trust to receive the rents and profits of 
two houses and to pay thereout to A. an annuity, 
and left the residue to B. for life. The houses 
were let to tenants, by agreements in writing 
for terms of years, rent payable monthly, on 
the 11th and 23rd respectively of each month. 
The testatrix died on the 11th of a month. 
Held, that the rent due on the 11th, as well as 
that due on the 23rd, accrued due after the 
testatrix' death, that there should be no 



apportionment, and that B. was entitled to the 
whole of each month's rent. In re Thomas's 
Will, 10 V.L.B. (E.,) 25. 



APPRENTICE. 

" Master and Apprentice Stat No. 193," Sees. 6, 17 
— Indenture not Signed by Father.] — McP. had 
been apprenticed to H. with the consent of his 
father as alleged in the indenture, which was 
not signed by the father. McP. absented him- 
self, and was sentenced to solitary confinement 
by the Justices therefor. Held, that if McP. was 
not under twenty-one the Act did not apply, and 
if he was under twenty-one, the father's signa- 
ture was necessary. Orderabsolute fora prohibi- 
tion. Begina v. Templeton, ex parte McPherson, 
3 A.J.E., 106. 

Liability of Master for Neglect to Instruct— In- 
denture not under Seal — " Master and Apprentice 
Statute, 1864," No. 193, Sees. 8, 16.]— Sec. 3 
of the " Master and Apprentice Statute 1864," 
No. 193, defines a " Master" as any person to 
whom any child shall be bound apprentice by 
indenture. When there is no indenture bindin g 
the apprentice, the master is not liable under 
Sec. 15 of the Act for neglecting to instruct 
the apprentice. Stead v. Gould, 4 A.J.E., 115. 

The Contract. — Whether Necessary to be in Writ- 
ing.] — The "Master and Apprentice Statute," 
No. 193, Sees. 9 and 10, requires that an Inden- 
ture of apprenticeship must be in writing, but 
that is only for the purpose of the summary 
jurisdiction of Justices. Apart from the Statute 
of Frauds the contract need not be in writing, 
except for purposes of the above-mentioned 
jurisdiction. Welshman v. Robertson, 1 V.L.E. 
(L.,) 124. 

Substituted Agreement] — Where an agreement 
is required by the Statute of Frauds to be in 
writing, any agreement in substitution for it 
must also be in writing, but where there is a 
subsequent agreement referring only to the 
manner in which such contract is to be per- 
formed, such subsequent agreement need not 
necessarily be in writing. Ibid. 

Amendment of Deed.] — Though the Court does 
not readily alter the language of a Deed, it 
will, to effect the intention of the parties, alter 
" himself " to " him " in a covenant by a father 
"toput himself apprentice to, <fcc." Ibid,p. 128. 

Determination of Agreement — Death of One of Tiro 
Joint Masters.] — Where an apprentice is jointly 
bound to two partners, the death' of one of the 
partners and the consequent dissolution of the 
partnership determines the apprenticeship. 
Beaver v. Fox, 2 V.L E. (L.,) 4. 

Master and Apprentice — Covenants to Learn and 
to Teach — Dependent Covenants.] — B's. son was 
bound to F. for five years by articles of appren- 
ticeship to learn a trade, in which F. covenanted 



47 

to^teach B's son the trade. After being three 
years in F's. service, during which time B's. 
son had not been taught anything, he deserted. 
On an action by F. for desertion and breach of 
covenant, Seld,per Stawell, O.J., and Williams, 
J., that the covenants were dependent, and 
that F.'s failure to teach for the three years 
already passed was a good defence to the 
actions per Higwtlotham, J., that the covenants 
were independent. Fletcher v. Bueolich, 7 
V.L.B. (L.,) 348. 

Master and Apprentice— Breach of Covenant to 
Teach— Eight of Father to Sue.]— Where a father 
is not a party to the indenture of apprentice- 
ship by which his son is bound, but is merely a 
surety for the performance of its covenants by 
his son, he is not the proper party to sue for a 
breach of the covenant to teach. Busolich v. 
Fletcher, 7 V.L.K. (L.,) 356. 



ARBITRATION AND AWARD. 



APPROPRIATION. 

Of Payment.] — See Payment. 



ARBITRATION AND AWARD. 

1. Submission, column 47. 

2. Effect of Agreement to Refer, column 48. 

3. Making Agreement to Refer a Rule of Court, 

column 48. 

4. Staying Proceedings and Enforcing Agree- 

ments to Refer, column 49. 

5. When Arbitration a Condition Precedent to 

Right to Sue, column 49. 

6. Award, column 50. 

7. Arbitrators and Umpires, column 54. 

8. Costs, column 55. 

1. Submission. 

Construction — " Cause of Action or Hatter in 
Difference"— Detention of Deeds.] — Plaintiff lodged 
with defendant certain title-deeds as security 
for a loan, which was repaid; but the deeds 
were not returned. Disputes occurred between 
the parties over a contract in respect of which 
the loan was made, and plaintiff and defendant 
agreed po. refer "all masters in difference, and 
all actions and causes of action" to arbitration. 
No demftnd for the deeds was made before the 
submissioji to arbitration. Plaintiff sued in 
detinue for the deeds. Held, that before demand 
of the deeds there was no wrongful detention 
so as to form a' "cause of action or matter in 
difference" within the reference to arbitration. 
Timewell q. Virgoe, 5 WiW. & a'B. (L.,). 147. 

Order of Reference— Amendment.]— Where an 
order for reference of a suit to arbitration had 



been made, the Court sanctioned an _ amend- 
ment of it by inserting a clause providing that 
the death of any party should not abate the 
proceedings. Tomkms v. Cuningham, 9 V.L.B. 
(E.,) 142. 

2. Effect of Agreement to Befer. 
When it Amounts to an Admission.] — A contract 
for the sale of a station, stock, &c, contained a 
provision that any deficiency in the number of 
sheep should be allowed to the purchaser at 
the rate of 5s. per head; and also a provision 
that all matters in dispute should be referred 
to arbitration. On mustering the sheep the 
purchaser found that there was a very larga 
deficiency, and it was agreed to refer to arbi- 
tration what should be allowed per head for 
the sheep deficient. The arbitrator allowed 
more than 5s. per head for the sheep deficient. 
Reld that sending the matter to arbitration 
operated as an admission that the deficiency 
was such that more than 5s. per head should 
be allowed to the purchaser for th'e deficiency 
in number. Ryan v. Broughton, 2 V.B. (L.J 
49; 2 A.J.B., 39. 

Covenant to Eefer Partnership Disputes to Arbi- 
tration — What is a Partnership Matter.] — See 
Walker v. Born, post under Covenant. 

Reference to Arbitration under Partnership 
Deed— What is Included] — See Gough v. Far- 
rington, post under Partnership — The Con- 
tract. 

3. Making Agreement to Befeb a Bulb of 
Court. 

Practice.] — Where originals of submission are 
produced signed, the submission may be made 
a Rule of Court by side-bar application in 
Term as well as in Vacation. See under name 
Arbitration, 2 W. & W. (L.,) 251. 

How and When made a Eule of Court] — Where 
a submission provided that application to make 
it a Eule of Court should be made to the 
" Supreme Court of Victoria,", such an applica- 
tion may, even in Term, and when the Pull 
Court is sitting in banco, be made to a single 
Judge sitting in Equity ; and when an award 
has been made, the award, as well as the sub- 
mission, should be made a Bule of Court. 
M'Meckan v. White, 1 W. W. & a'B. (E.,) 165. 

When Award Made Within Terms of Submission it 
Cannot be Ee-opened.] — Where a submission to 
arbitration has been made a Bule of Court, 
and where the award has been made within 
the terms of the submission, neither of the 
parties can re-open the same question by a suit 
in Equity, though the award itself was not 
made a Bule of Court until after the filing of 
the bill, and the fairness of such award was 
impugned. Crooke v. Swords, 5 W. W. & a'B. 
(E.,) 136. 

Effect of.] — Where the matters in dispute in a 
cause are referred to arbitration by the order 
of a Judge, such order giving power to deal 
with the costs of action, reference and award, 
and being afterwards made a Bule of Court, 



49 



ARBITRATION AND AWARD. 



50 



the parties have no power to vary the terms of 
the reference by an agreement between them- 
selves. Cudmore v. McPherson, Brooks v. 
McPherson, 8 V.L.E. (L.,) 208. 

Costs.] — The successful party is entitled to 
the costs of making an order, of reference a 
Rule of Court, where it is necessary for the 
purpose of enforcing the award. Ibid. 

4 Staying Proceedings and Enforcing 
Agreement to Eefer. 

"Common Law Procedure Stat.,'' No. 274, Sec. 
S66 — Arbitrator not an Indifferent Person.]— A 
■ clause in a contract provided that all disputes 

) touching or concerning the work to be done, 
materials and other incidents of a similar nature, 

■ were to be referred to and settled by the decision 
of the Inspector- General. The contractors sued 
for certain breaches of the contract. The defend- 
: ants obtained an order under Sec. 226 of the 
" Common Law Procedure Stat." staying pro- 
ceedings and enforcing the agreement to refer. 
The plaintiffs then moved to rescind the order on 
the ground that the matters could not be pro- 
perly referred to the Inspector- General, as he 
was a member of the defendant Board, and had 
.already done acts hostile to plaintiffs' interests. 
Held, that the breaches were disputes within 
the clause, and that as the contract referred 
such disputes to the Inspector-General the 
plaintiffs could not complain. Application 
.refused. Evans v. Board of Land and Works, 
S A J.B., 182. 

Act No. 274, Sec. 266 — Invalid Award Already 
Made.] — A contract contained an agreement to 
xefer. An award had been made in favour of 
the defendants, which was invalid through a 
defect in its form, and defendants had taken no 
steps to rectify it. Plaintiffs then sued on the 
contract. After action commenced defendants 
obtained an order nisi, under Sec. 266, staying 
proceedings in the action. Held, on motion to 
rescind the order that, so long as the award 
remained,' one of the essentials of the jurisdic- 
tion to make the order was wanting, viz., the 
Judge making the order could not be satisfied 
that no sufficient reason existed for not pro- 
ceeding to refer, and no further reference 
could be insisted on. Martin v. Board of Land 
and Works, 5 V.L E. (L.,) 117; 1 A.L.T., 107. 

Costs — Power of Judge to Award — " Common Law 
Procedure Statute 1865," Sec. 266.] — In making 
an order under Sec. 266 of the " Common Law 
Procedure Statute 1865," staying proceedings 
in an action, the Judge has no power under the 
section to make any order as to the costs of the 
arbitration. Farrell v. Imperial Fire Insurance 
Company., 10 V.L.K. (L.,) 116 j 6 A.L.T., 10. 

5. When Arbitration is a Condition 
Precedent to a Eight of Action. 

A clause in a contract for stevedoring, which 
stipulates that all matters in dispute arising 
touching the agreement should be referred to 

.arbitration, and prohibits an action being 
brought in respect of the matters actually 

.submitted, is a collateral and independent 



agreement, and an award thereunder is not a 
condition precedent to a right of action except 
(per Privy Council) as regards such sums as 
under the agreement are not payable until the 
amount thereof has been ascertained by such 
award. Locke v. Collins, 3 V.L.E. (L.,) 40. 
Affirmed on appeal to P.O. L.B. 4 App. Ca., 
674. 

See also cases under Work and Labour. 

, 6. Award. 

Validity of — Interest.] — "Where an award was 
to the effect that H. should indemnify W. 
against all debts, demands, &c, of the late 
firm of H. and Co. against W., Held that there 
was a difference > 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. 
<L.,) 203. 



Foreign Attachment — Return to Writ — Non est 
Inventus— No. 874, Sees. 211, 214.] — A return to 
a writ of foreign attachment in the words "He 
cannot be found,' ' instead of " 2Vb»i est inventus," 
as prescribed by Sees. 211, 214 of the " Common 
Law Procedure Statute 1865," is a sufficient 
compliance with the Act. Wilson v. Threlkeld, 
3 W. W. & a'B. (L.,) 158. 

Foreign Attachment — Affidavits of Cause of Action 
—No. 274, Sec. 211.]— Under Sec. 211 of the 
" Common Law Procedure Statute 1865," sepa- 
rate affidavits in support of a writ of foreign 
attachment need not be made, one of the cause 
of action, and another that the cause arose in. 
Victoria; but the two statements may be, and 
should be when convenient, made in the same 
affidavit. Ibid. 

Foreign Attachment— Order for Sale — Application 
by Garnishee Necessary— Consent — No. 274, Sec. 
217.]— By Sec. 217 of the " Common Law Pro- 
cedure Statute 1865," if the garnishee be 
desirous of disposing of goods attached in his 
hands, he must make an application to the 
Court or a Judge for that purpose, and semble, 
that an order to sell made without such appli- 
cation is ultra vires, and that an order made by 
consent of the garnishee without such applica- 
tion should be set aside. Ibid. 

Foreign Attachment — "Common Law Procedure 
Statute," No. 274, Sec. 215— Damages for Sale of 
Goods by Garnishee.] — W. purchased tea from T., 
a Sydney merchant. Some of the parcels arrived, 
but as they did not correspond with the tea 
purchased, W. brought an action and recovered 
damages. W. issued a writ of foreign attach- 
ment, and the teas sent to Melbourne were 
attached. When so attached they had got into 
the hands of A., a creditor of T., and the writ 
of attachment was directed to A. as garnishee. 
A Judge's order, directing A. to sell part of 
the tea and hold the proceeds subject to the 
attachment, was set aside. After this A- sold 
the tea, shipping it to Sydney. Subsequently 
another order was made to the same effect, 
ante-dated to the date of the former order. 
Summons, under Sec. 215 of the Statute, call- 
ing upon A. to show cause why he should not 
pay damages for removal of the property 
attached. The summons being adjourned to 
Court, Held, it appearing from affidavits that 
the tea did not belong to T., but to another 
Sydney merchant, T. selling them only as 
broker, that W. had suffered no damage and 
the garnishee was not liable. Summons dis- 
missed. Wilson v. Threlkeld, 4 W.W. and a'B. 
(L.,) 173. 

Affirmed on appeal, where the Privy Council 
held that it was essential that the property 
should belong actually and not constructively 
to the defendant in the action, and that being 
satisfied of that fact, the granting an issue to 
try the question of property, or making an 
order against the garnishee in respect thereof, 
is a matter for the discretion of the Court. 
Wilson v. Trail, L.E. 3, P.C. 33. 

Garnishee — Crown Cannot be.] — The provisions 
of the " Common Law Procedure Act 1865," No. 



63 



ATTACHMENT. 



64 



274, as to garnishees do not apply to the Crown, 
or to public officers, in respect of moneys due 
by the Crown to the judgment debtor. Aitlcen 
v. Godkin, 5 W. W. & a'B. (L.,) 216. 

Recovering Moneys Erroneously Paid by Gar- 
nishees.] — An action may be maintained by 
garnishees who hare paid over to judgment 
creditor moneys which they erroneously be- 
lieved to belong to the judgment debtor, and 
who, after payment, have discovered their 
mistake, and have obtained the setting aside of 
the garnishee proceedings against the judg- 
ment creditor for money had and received 
to their use, and may recover the amount. 
Beauchamp v. Nathan, 5 W. W. & a'B (L.,) 219. 

Affidavit — " Common Law Procedure Statute," Sec. 
201.]— On an application by a bank to attach a 
debt in the hands of third persons, the affidavit, 
under Sec. 201 of the " Common Law Pro- 
cedure Statute," began, " I, B., Inspector of 

the Bank, make oath, &c." On objection 

that the affidavit did not appear to be made by 
the judgment creditor or his attorney. Held 
(in chambers) that the objection was fatal and 
order discharged. London Chartered Bank v. 
Webb, 1 A.J.B., 119. 

Foreign Attachment — "Common Law Procedure 
Statute," No. 274, Sec. 224.] — A judgment 
creditor, who has obtained a writ of foreign 
attachment, has only an inchoate right, 
it may be rendered complete by levy ; such a 
levy to perfect title against an official assignee 
of the debtor who becomes insolvent after the 
■writ is issued, is necessary under Sec. 224 of 
the " Common Law Procedure Statute." Lauratet 
v. McCracken, 3 V.B. (L.,) 41 ; 3 A. J.E., 35. 

See S.C. under Insolvency — Effect of. 

Foreign Attachment — "Common Law Procedure 
Statute 1865," Sec. 225.]— A writ of foreign 
attachment will not be set aside merely because 
it is addressed to a bank as garnishee instead 
of to the inspector. If a writ is wrongly 
addressed, it will not bind the property. 
Synnot v. Bay, I. V.L.E. (L.,) 70. 

II. Of Persons. 

(1) Procedure and Practice on. 

For Debt and Costs — Barred as to Costs by Liqui- 
dation.] — In an order for payment of debt and 
costs, the costs are incidental to the debt, and 
therefore when the enforcement of a decree 
for the debt is prevented by a liquidation, 
there can be no attachment for the costs, 
though they were not provable under the 
liquidation. England v. Moore, 6 V.L.B. (E.,) 
48, 54 j 1 A.L.T. 172. 

For Non-Payment of Debt and Costs — Will not be 
Granted after Liquidation.] — The " Insolvency 
Statute 1871," No. 379, Sec. 150 (xi.,) forbids 
any suit or action against a debtor whose affairs 
have been liquidated, and therefore, since a 
suit must be carried on in order to obtain an 
attachment against a defendant for non-pay- 
ment of his debt and costs, if such debtor 
fcefore the order has entered into liquidation 



by arrangement with his creditors, such attach- 
ment will not be granted. England v. Moore,. 
6 V.L.B. (E.,) 48; 1 A.L.T., 158. 

For Non-Payment of Costs — Defect in Decree- 
Cured by Subpoena.] — "Where a decree directing 
payment of costs does not specify any time for 
payment, such defect is cured by the issue of 
a subpoena, and attachment may issue. Forbes 
v. Clarion, 4 V.L.B. (E.,) 200. 

For Non-Payment of Costs — Attorney under Power 
Demanding Payment.]— A subpoena for the pay- 
ment of costs to the plaintiff having issued, he 
executed a power of attorney to a person, 
H. J. B., to demand and receive payments 
Upon the affidavit of the attorney of a demand 
by him, under the name of H. B., and refusal 
to pay, an attachment was issued and the de- 
fendant was arrested. Upon motion to turn him 
over, an objection that the power of attorney 
was directed to H. J. B., and the demand, 
was made by H. B., i.e , not the person author- 
ised to receive payment, was overruled, and it 
was held that a demand by any agent of the- 
principal bearing the subpoena was sufficient. 
Ibid. 

Non-Payment of Costs under Interlocutory Order.]- 
— Where in an interlocutory order nothing is- 
said about time of payment of costs, the pre- 
sumption arises that they are to be paid when 
finally taxed; but where an interlocutory order- 
directing a postponement of the action ordered 
payment of costs already incurred "when 
taxed," and costs were taxed and a demand 
was made, Held that the party to whom costs 
should have been paid was entitled to enforce- 
payment by attachment before final taxation. 
Robertson v. Mohabeer, 5 V.L.B. (L*) 482. 

In What Cases — For Non-Payment of Costs — "Act 
for Abolishing Imprisonment for Debt," Sec. 2.] — 
Semble, that the " Act for Abolishing Imprison- 
ment for Debt," No. 292, Sec. 2, does not affect 
the power of the Court to issue an attachment 
for disobedience of an order to pay costs.- In re 
Sandttands, ex parte Browne, 4 V.L.B. (L.) 318. 

The Acts for abolishing imprisonment for 
debt do not affect the power of the Court to 
issue an attachment for disobedience of a rule 
ordering payment of costs. Ex parte Dalton,. 
4 V.L.B. (L.,) 417. 

Semble, that the Court will not grant an. 
attachment, after the applicant has had resort 
to a purely civil remedy, as, for instance, by 
obtaining a rule to show cause why the money 
should not be paid, or by issuing execution. 
Ibid. 



For Non-Payment of Costs — Subporaa.] — A writ 
of attachment for non-payment of costs may 
issue from the office upon the mere production 
of the subpoena for costs, and an affidavit of 
its service and of demand and non-payment, 
and no order of the' Court for its issue is 
necessary. Evans v. Guthridge, 1 W. W. & 
A'B. (E.,) 49. 



65 



ATTACHMENT. 



66 



Discharge from-]— A party should only be dis- 
charged from an attachment for non-payment 
of costs, upon paying, as well as the costs 
endorsed upon the writ of attachment, the 
costs of the certificate upon which the subpoena 
for costs was based, the subpoena itself and of 
the attachment. Ibid. 

Subpoena for Attachment.] — The Supreme Court 
Rules do not abolish the power of arrest under 
subpoena for costs, and the Court will issue an 
attachment for their non-payment. Blake v. 
Watson, 1 W. & W. (E.,) 139. 

Costs — Ecclesiastical Suit — Attachment.] — 
Where costs in an ecclesiastical suit were not 
paid pursuant to the decree, an order absolute 
in the first instance for attachment granted. 
Cawley v. Cawley, 6 "W. W. & a'B. (I. E. & M.,) 
41. 

An attachment will be granted for non- 
payment of arrears due under a decree for 
alimony pendente lite. Hunter v. Hunter, 2 
W. & W. (I. E. & M.,) 123. 

How Enforced.] — The proper course to enforce 
payment of costs by attachment, is to proceed 
by subpoena. 

But Semble, payment may be enforced under 
"Supreme Court Rules" Cap. 6, Rule 43, although 
no time is fixed by the original order, if a time 
within which payment is to be made be fixed 
by a subsequent order. Pohorney v. DitcKburne, 
1 V.R. (E.,) 16. 

The whole costs as taxed, and as named in 
the prothonotary's allocatur, amounted to a 
certain sum, including sheriff's costs. Rule 
for attachment refused where the sheriff's costs 
had been demanded separately, and also the 
amount of taxed costs. Held that the sum 
named in the allocatur should be demanded 
with a statement that it included all. Com- 
mercial Bank v. McDonald, 3 A.J.R., 29. 

Discharge from Arrest — 5 Vic, Bo. 17, Sec. 3.] — 
A defendant in custody under an attachment 
for non-payment of costs, voluntarily sequest- 
rated his estate, under 5 Vic, No. 17, Sec. 3. 
On motion for his discharge from custody, 
Held, that the attachment was a "process 
against the person," within the meaning of the 
5 Vic, No. 17, Sec. 30, and that the defendant 
must be discharged. Laing v. Campbell, 1 
W. & W. (E„) 372. 

For Disobedience of Order to Pay Alimony — Not 
Dissolved on Ground of Inability.] — An attachment 
for disobedience of an order to pay alimony 
will not be dissolved on the ground of inability. 
If the inability arises from want of means, the 
proper course is to apply to the Court, on 
notice to the other side, to have the order set 
aside. CampbeU v. Campbell, 5 W. W. & a'B., 
(I. E. & M.,) 59. 

For Breach of Injunction.]— An injunction was 
obtained against a defendant company restrain- 



ing it, its manager, directors, workmen and 
servants from {inter alia) permitting sludge to 
flow over plaintiff's land. On motion for 
attachment for breach, Held that the utmost 
such an injunction means is, that if they caused 
the sludge to flow, they should accompany it by 
some precaution to prevent the flowing of the 
sludge ; and that in working out an injunction 
of that nature, there is no contempt on the 
part of individual members or servants unless 
there is evidence of their doing what they are 
commanded not to do; but that the company 
should pay their costs of resisting the motion. 
Subsequently the Court being of opinion that 
the injunction was disobeyed, granted a motion 
for sequestration. 8eal v. Webster-st. G.M. 
Company, 5 W. W & a'B. (E.,) 129. 

Rule Nisi for Against Administrator not Filing 
"Three Months'" Inventory.] — A rule nisi had 
been granted calling upon an administrator 
to show cause why he should not be attached 
for not filing inventories within three months 
of the grant of administration, and since the 
rules were taken out the inventories had been 
filed upon affidavit, but no time had been given, 
for examination of them. The inventory of 
the real estate was accepted as correct, but 
that of the personal estate only set out what 
the administrator had received, and did not 
state that this comprised all the personalty. 
The order made by the Court was rule absolute, 
with costs ; disallow cause ; no attachment to 
issue. In re Bowling, 1 A.J.R., 14. 

Non-Payment of Amount Under an Award.] — No 
attachment will lie for non-payment of an 
amount found due under an award where the 
award contains no order to pay such amount. 
Fowler v. Walker, 1 A.J.R., 35. 

Contempt of Court— Preparing Conveyance by 
Unauthorised Person.] — Upon a rule nisi for 
attachment for contempt of Court in preparing 
a conveyance by an unauthorised person, 
such a rule should precisely apprise the 
respondent of the subject of the complaint, 
especially as a simpler proceeding is pro- 
vided under Sec. 13 of Act No. 33, and a. 
second application based upon the same affi- 
davits was refused, the first not having failed 
merely for a defect in the jurat or title. In i e 
Heron, 5 A.J.R., 161. 

Evasion of Service of Eule Nisi — Motion for Rule 
Absolute.] — A defendant had disobeyed an 
Order of the Court as to payment of a certain 
sum within a specified time, and had evaded 
service of the rule nisi. Motion for rule 
absolute without rule nisi. Held, that con- 
sidering the other orders that had been made 
in the cause no such order would be made, but 
order for rule nisi made to be served on 
defendant's solicitor and returnable in a week. 
Punch v. Punch, 3 A. J.R., 43. 

Arrest — Escape and Re-capture — Date of Return.] 
— A writ of attachment for non-payment of 
costs directed the Sheriff to bring up the person 
arrested on 17th June, 1875, or on the first day 



67 



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68 



on which the Supreme Court should sit in 
Equity next after the arrest. On the morning 
of 17th June the person escaped and was 
re-arrested on 3rd July. On habeas corpus for 
his discharge on the ground that the writ had 
lapsed before the re-arrest— Held that the writ 
was not in proper form, as it did not follow 
Cap. 6 of ■* Supreme Court Rules," Rule 42, in 
directing production upon the "next day in 
Term, or on the next day on which the Court 
shall sit in Equity out of Term after such 
arrest, or as soon afterwards as possible" — that 
its force expired on 17th June, and it afforded 
no justification for the subsequent re-arrest. 
Prisoner discharged. In re Wall, 1 V.L.E, 
(L.,) 246. 

Eule for Returnable on a Holiday.]— A rule for 
attachment returnable on a holiday was dis- 
charged with costs. In re Dryden, 3 A. J.E., 42. 

" Common Law Procedure Statute," No. 274, Sec. 
80 — Writ Returnable on a Holiday.] — A writ 
returnable on a certain day in Term is void 
when such a day is one of the holidays fixed 
by Sec. 80 of the Act No. 274. Merry v. 
Nicholson, 3 V.L.E. (L.,) 299. 

In connection with the same case a rule 
absolute was granted in the first instance on 
the last day of Term for the issue of another 
writ of attachment tested of the date of issue 
and not of the date of the issue of the void 
writ. Evans v. The Queen, 3 V.L.E. (L.,) 336. 

Writ of Attachment— Eule for Not Discharged 
unless Terms of Order Complied With.] — A Eule of 
Court was made for the payment of a sum of 
money to the prosecutor, who executed a power 
of attorney to his solicitor or his clerk to 
receive the money. The money was not paid, 
and a rule was made absolute with costs for 
the issue of a writ of attachment, unless the 
defendant should pay the sum due and the 
costs of the rule to the prosecutor or his 
solicitor. Subsequently to this rule the 
defendant paid the sum due to the solicitor's 
clerk, under the first rule. Held that this was 
no payment so as to make the writ for attach- 
ment no longer operative. Re Phelps, 6 V.L.E. 
(L.,)37; 1A.L.T., 152. 

Duty of Sheriff under Writ]— The duty of the 
sheriff under writ of attachment, ordering 
him to attaeh a defendant, " so that you may 
have him before us " on a certain day, is to 
arrest the defendant, lodge him in the gaol 
nearest to the place of arrest, unless the Court 
order otherwise, and there keep him until 
directed by the process of the Court to bring 
him up. Ibid. 

Defendant Applying for Discharge— Matter Between 
Defendant and Prosecutor — Objections — Turning 
Over.]— If a defendant who has been arrested 
on a writ of attachment have himself brought 
before the Court on an application to be dis- 
charged, he cannot take any other exceptions 
to the regularity of the writ than he could 
have taken had he applied the day after his 



arrest for discharge on the ground of such 
irregularity s and when a defendant has so 
brought himself before the Court, the matter 
is then one entirely between him and the 
prosecutor, and not between him and the 
Sheriff, and he must be turned over as of 
course to the gaoler, unless he can show that 
the whole proceedings are void ah initio, or 
that he has purged his contempt. Ibid. 

For Non-Compliance with Decree — Practice.] — 
Where a decree was made directing defendant to 
transfer a mining share to plaintiff, and deliver 
up the scrip to him, with a duly executed 
transfer endorsed thereon, within one month, 
and such decree was served personally upon 
the defendant, who failed to comply therewith. 
Upon motion for attachment, Held that a 
demand should have been made on defendant 
to comply with the decree, and there could be 
no contempt till such a demand was made. An 
order was made, however, directing defendant 
to hand in the scrip, duly endorsed, to the 
office of the plaintiff's solicitor, at an hour 
named, and upon affidavit of non-compliance 
attachment to issue. Filler v. Stephens, 6 
V.L.E. (B.,) 144. 

For Contempt — Heading of Eule for Attachment.] 
— A rule to attach a person in contempt or to 
turn him over to the custody of the gaoler is 
not invalid for being irregularly headed " Re 

Reg. v. ——," instead, of "Reg. v. ;'* or 

because the costs of the rule are not endorsed 
on the writ. These irregularities merely form 
matter for objections which may be waived by 
delay in applying to the Court or a Judge. Re 
Phelps, 6 V.L.E. (L.,) 164; 2 A.L.T., 4. 

Person Decreed to Pay Honey Becoming Insolvent.] 
— An order on ex parte motion will not be made . 
for attachment of a defendant who has failed 
to pay money ordered by a decree when such 
defendant has subsequently become insolvent. 
Notice of motion is necessary in such a case. 
Lane v. Loughnan, 7 V.L.E. (E.,) 19; 2A.L.T., 
134. 

Writ of— "Supreme Court Eules," Cap. VI., Eule 
42 — Wrong Date.] — Where a writ of attachment 
directed that defendant should be brought 
before the Court on the 26th day of June, or 
on the next day after the arrest on which the 
Court should be sitting, June being put in in 
error for May, and Sheriff brought up prisoner 
on 26th May. Held, that prisoner should be 
turned over without prejudice to any applica- 
tion he might wish to make to the Court. 
In re Qivan, 7 V.L.E. (E.,) 52. 

Eefusal to Execute Conveyance — Time to be Fixed 
in Order Nisi.] — An attachment for refusal to 
sign a conveyance directed by an order under 
further directions was refused on ground that 
order nisi did not fix a time within which con- 
veyance was to be executed. Order made on 
subsequent motion, appointing a time, and 
directing an attachment to issue on non-com- 
pliance with the order. Cameron v. M'Namara, 
9 V.L.E. (E.,) 17. 



.69 



ATTORNEY-GENERAL. 



70 



ATTORNEY. 



See SOLICTOR. 



ATTORNEY, POWER OP. 

See POWER OP ATTORNEY. 



ATTORNEY-GENERAL. 

1. When he is a Necessary Party. 

2. When he Represents the Grown. 

3. Costs of and Against. 

1. When he is a Necessary Party. 

Mining on Private Property — Eights of Share- 
holders and Directors inter se.] — Where a Mining 
■Company was mining on private property 
alienated from the Crown, and a suit was 
brought to enforce the liabilities of directors 
to the shareholders, Meld, that as to enforcing 
liabilities between shareholders and directors, 
it was not right that either should be 
•embarrassed by the fact that both were liable 
to be treated as trespassers by the Crown, and 
that the Attorney-General was not a necessary 
party. Reeves v. Croyle, 6 W.W. & a'B. (E.,) 
302. 

Seld, per Molesworth, J., that in a suit by 
bill and information, seeking an injunction to 
restrain persons from mining on another's 
private property, the Attorney-General of 
Victoria, and not the Attorney-General of 
England nor the Commissioners of Crown 
"Lands, is the proper officer to file the informa- 
tion, and that the Constitution Act, though it 
transferred the management of Crown property 
to local authorities, does not transfer the 
remedy for encroachment upon it, and those 
rights can only be enforced by the law officers 
of the Crown, and that the Attorney-General 
is the proper person to enforce such rights in 
Victoria. Attorney-General v. Gee, 2 W. & W. 
(E.,) 122. 

Joinder of Attorney-General with a Municipal 
Corporation and an Owner of Private Property to 
Eestrain Mining. ] — Where the Attorney-General, 
a, Municipal Corporation, and an owner of 
private property joined in an information and 
"bill to restrain mining, Semble, per Molesworth, 
J., the Attorney-General, a Municipal Corpora- 
tion, and the owner cannot join for different 
injuries — the one complaining of the removal 
of the gold, the other of the injury to the 
streets, and the third of injury to his property. 
Attorney-General v. Rogers, 1 V.R. (E.,) 132, 
139; 1 A.J.R., 120, 149. 



Landlords and tenants jnay join in a suit 
for injury to the soil, and the Attorney-General 
as representing the Crown may join in the suit 
for an injunction and account. Attorney- 
General v. Boyd, 3 A.J.R., 18, 99, 130. 

The Attorney-General and freehold owners 
may join in a suit to restrain a trespasser from 
mining for gold on the land. Attorney- 
General v. Lansell, 8 V.L.R. (E.,) 155, 172; 
3 A.L.T., 141. 

Motion for Inspection.] — Semble, in a suit for en- 
croachment by Attorney-General and licensees 
if the encroachment is admitted, a. motion for 
inspection, to which the Attorney-General is 
not a party, will not be granted. Ibid. 

Licensees from Owner Mining on Private Land — 
Encroachment — Suit for Account of Gold Taken.] — 
Where plaintiff and defendant held licenses 
from the owner of private property to mine on 
his land, and defendant had encroached, on 
bill by plaintiff seeking inter alia an injunction 
restraining defendant from driving for or 
taking gold or auriferous earth from plaintiff's 
part of the land, and for an account of gold 
already taken, Seld that since the Attorney- 
General was not made a party the injunction 
and account could not be granted. Astley 
United Gold Mining Company v. Cosmopolitan 
Gold Mining Company, 4 W.W. & a'B. (E.,) 96. 

Mining Suit — One Applicant for a Lease Suing 
Another for Trespass.]— The Attorney-General 
is not a necessary party to a suit of trespass 
instituted by one applicant for a mining lease 
against another who has an expectation of a 
lease. Robertson v. Morris, 7 V.L.R. (M.,) 
1 ; 2 A.L.T., 109. 

Sale of Crown Lands.] — In a suit to restrain 
the sale of Crown lands the Attorney-General, 
as representing the Crown, is a necessary 
party. Palmer v. Board of Land and Works, 
1 V.L.R. (E.,) 80. 

For facts see S. C. post under Crown. 

Injunction Against Nuisance.] — A municipal 
corporation, charged with the care and* 
management of streets, suing for an injunc- 
tion to restrain mining under a street upon 
the ground of expenses incurred in keeping 
down nuisance occasioned by subsidence of 
the street may in that aspect sue alone, and 
the Attorney-General is not a necessary party. 
Mayor, S(c. of Ballarat v. Victoria United G.M. 
Company, 4 V.L.R. (E.,) 10. 

2. When he Represents the Crown. 
In a suit by bill and information against a pri- 
vate person to set aside a sale of Crown lands to 
him on the ground of mutual mistake as to the 
valueof improvements on the land, the Attorney- 
General is the proper person to represent the 
Crown; he has the right and duty to do all 
acts done by usage by an officer of the same 
name in the mother country. Semble, there is 
no distinction between proceedings to protect 
unalienated Crown property, and to set aside 



71 



AUDIT AND AUDITORS. 



72" 



improper alienations ; it is not necessary for the 
Attorney-General to prove his appointment. 
Attorney-General v. Selson, 4 W. W. & a'B. 
(E.,) 57. 

His Eight to Eepresent the Grand Jury.] — See 
Regina v. Patterson, post Criminal Law — 
.Practice and Procedure — Jury. 

'.* 

3. Costs or and Against. 

When entitled to.] — "Where the Attorney- 
General was a necessary party to a suit 
respecting charities, though he rendered the 
Court no assistance, the Court allowed him his 
costs. Treaty v. Watson, 10 V.L.E. (E.,) 96; 
5 A.L.T., 201. 

For other cases see under Costs — Of and 
Against Particular Persons! 



AUCTION AND AUCTIONEER. 

Entries by Auctioneer's Clerk — Sufficiency within 
"Statute of Frauds."] — At a sale by auction 
where the auctioneer's clerk acts as amanuensis 
and writes down the names of the purchasers, 
the names of the purchasers should be called 
out by the clerk to show that he was aware 
of the person to whom the goods were 
knocked down. Moss v. Cohen, 3 V.E. (L.,) 
205; 3 A.J.B., 104. 

Agent for Purchaser — Entry of Purchaser's 
Name in the Sale-Book by Auctioneer's Clerk.] — An 
entry by the auctioneer's clerk of a person's 
name to whom goods are knocked down at 
an auction sale is not a sufficient signature by 
the agent of a purchaser to satisfy the 
" Statute of Frauds." Pratt v. Rush, 5 V.L.E. 
(L.,) 421. 

Auctioneer's Clerk — How far he Binds a Pur- 
chaser by Entering his Name in a Sale-Book.] — See 
Service v. Walker, under Sale — op Goods — 
post. 

Agent for Purchaser — Sale of Land — Revocation 
of Authority.] — Certain land was sold by 
auction, and D. had it knocked down to him. 
The auctioneer's clerk entered D.'s name as 
purchaser in the contract for sale. D. was 
asked to sign the contract, which he refused, 
and afterwards repudiated the sale. Six 
months after auction, but before action, the 
auctioneer signed the contract of sale as agent 
for D., the purchaser. The vendor sued D. on 
the contract, and recovered a verdict. On 
rule nisi for u, nonsuit, Held, that the auc- 
tioneer became the purchaser's agent directly 
the hammer fell, and as such had authority to 
sign the contract on his behalf, but that such 
authority was revocable, and was in this case 
actually revoked. Eule absolute. Ecroyd v. 
Davis, 3 V.E. (L.,) 228 ; 3 A.J.E., 114. 

Sale by— Warranty of Title.]— An engine was 
put up for sale in the vendor's presence, a third 



person B. put in his claim to it, and the 
auctioneer said he had a guarantee from the- 
vendor. E. purchased it, but B. recovered 
possession of it in an action of trover. In an 
action by E. against the vendor, Held, there 
had been an express warranty of title. Bobbins 
v. McCulloch, I.V.L.E. (L.,) 20. 

Sale "as Agents of Vendors" — Commission — 
Costs.] — An auctioneer, M., sold certain land 
under conditions of sale, which provided for the- 
purchaser paying a deposit to M., "as agent 
for the vendor." Held that M. was entitled to- 
commission. The vendors could not make- 
title, and the purchaser sued M. for a return 
of the deposit, and succeeded, getting certain 
costs. Held that M. could not recover from 
the vendors the costs paid to the purchaser or 
his own costs, because he had not raised a, 
proper defence, i.e. that he was not a stake- 
holder, to the action. McMillan v. Read, 3 
V.L.E. (L.,) 284. 

Effecting Sales Without a License — Partners — 
License to One Partner — " Sales by Auction Statute- 
1864," Sec. 18.] — An unlicensed partner in, a 
firm, which has the word " auctioneers " 
painted up on its business premises, is liable 
to the penalty imposed by Sec. 18 of the "Sales- 
by Auction Statute 1864," for having words 
painted on his premises which led to the 
belief that he was an auctioneer, not being 
a licensed auctioneer, though all sales by 
auction are conducted by the partner who has- 
a license. Ex parte Mills re Alley, 8 V.L B. 
(L.,) 316 ; 4 A.L.T., 80. 

Commission — Sale by Owner.] — W. put certain- 
property into B.'s hands for sale by auction, 
and without formally withdrawing it from. 
sale by B. W. sold it to a purchaser not 
introduced by B. Held, that B. was not 
entitled to a commission. Bliss v. Withers, 
9 V.L.E. (L.,) 32. 

Commission — Sale under Decree.] — "Where a 
decree was made for the sale of real estate 
under the direction of the Master, the proceeds 
of sale to be paid into Court to abide the order 
of the Court, Held, that the auctioneer should 
retain his commission out of the proceeds 
before paying into Court, and pay the net 
proceeds into Court. McMillan' v. Houston, 9 
V.L.E. (E.,) 168. 



AUDIT AND AUDITORS. 

Of Accounts of Eoad District— Special Auditors— 
"District and Shires Act," Ho. 176, Sec. 164.]— 
Special auditors appointed under the Act 
No. 176, See. 164, for a certain Eoad District* 
were required to make a, special audit of the 
accounts of the Board. At the audit, which 
was held in December, they had submitted to 
them the balanced accounts of the two com- 
plete months of October and November, which 



33 



BAILMENT. 



74 



had elapsed since the last general audit for the 
year ending 30th September. Not finding 
what they required in the accounts submitted 
to them, the auditors called for the accounts 
•of the year ending 30th September, and, no 
objection being made, specially audited the 
accounts for the whole fourteen months. On 
suing in the County Court for their fees for 
the fourteen months, the Judge held that they 
were only entitled to payment for the two 
months of October and November, not being 
competent to re-audit the accounts of the 
previous twelve months already audited by the 
general auditors under Sec. 162 of the Act. 
•On appeal, Held, that the decision was right, 
and appeal dismissed. Rucher v. Moorabbin 
District Road, Board, 3 W. W. & a'B. (L.,) 101. 

Applicant for Mandamus to Compel Shire Council to 
Jay Fees for Special Audit — Smaller Amount Awarded 
4han that Sought.] — An applicant for a mandamus 
to a shire council compelling them to pay him 
the fees of a special audit, is entitled to his 
costs notwithstanding that a smaller amount 
has been awarded him than that sought. 
Hegina v. Shire of Pyalong, 4 A. J.B., 124. 

Mandamus to Borough Council to Compel Payment 
of Audit Fees — "Local Government Act 1874," Sec. 
519.] — The Council refused to grant a Manda- 
mus (questioning Regina v. Shire of Pyalong, 
4 A.J.E., 124,) to compel a municipal body to 
.pay fees for auditing its accounts, pointing 
out that there was a remedy by arbitration 
under Sec. 519 of the "Local Government Act 
1874." Regina v. Mayor, Sec, of Collingwood, 
•2 V.L.E. (L.,) 46. 

Audit of Accounts of a Eoad Board — Disallowing 
Items — Powers of Auditors — 27 Vic, No. 176, Sees. 
149, 160.] — Heidelberg Road Board v. Young. 
See post under Local Government. 



AVERAGE. 

See INSURANCE AND SHIPPING. 

BAIL. 

In Criminal Matters — Estreatment.] — M., being 
convicted of embezzlement was sentenced, but 
^.several points were reserved, and pending the 
decision of such points, execution of the 
sentence was respited. M. and two sureties 
^entered into a recognizance before a Justice of 
the Peace, conditioned that M. should " appear 
at the next Court of General Gaol delivery, to 
be holden at Melbourne, on the 7th of Septem- 
ber, or whenever thereto required." No Court 
• of Gaol Delivery sat in Melbourne on 'the 7th 
September, because the Court was sitting in 
^Banco for Michaelmas term. M. appeared, 



however, and the points reserved were argued, 
and judgment was reserved. On the 30th 
September the case was called on for judgment, 
but M. did not appear, having absconded. 
The Court accordingly did not deliver judg- 
ment, but permission was given for an applica- 
tion to be made at the next Ballarat Circuit 
Court for an order requiring his sureties to 
produce him, and an order was made at 
such Circuit Court for M.'s appearance at 
the next General Gaol delivery at Melbourne 
on the 16th October. It was served at M.'s 
residence on his wife, and also on the sureties. 
M. did not surrender himself on the day 
named, and an application was made to the 
presiding Judge at Criminal Sessions to have 
the recognizances estreated, which was referred 
to the Pull Court. Held, that M. having 
appeared to receive sentence in the terms of 
the recognizances, which did not require him 
to render himself, and no Court having sat on 
the day upon which he was to appear, the 
recognizances could not be estreated. Regina 
v. Moore, 2 V.E. (L.,) 190; 2 A.J.E., 115. 

When Granted or Refused] — After conviction 
and sentence for conspiracy, questions of law 
were reserved, and the prisoners were let out 
on bail; but judgment was given for the Crown 
on the questions reserved, and immediately 
afterwards a rule nisi for a new trial was 
obtained, on the ground that the verdict was 
against evidence, and that the jury had acted 
partially. An application that the prisoners 
should go again on bail was refused. Regina 
v. Nathan, 1 "W. & W. (L.,) 317. 

Bailable Process — Writ of ca. re.] — See post 
under Capias. 



BAILIFF. 



Appointment of Special Bailiff — 15 Vic, No. 10, 
Sec. 24.] — See House v. O'Farrell, under Tres- 
pass — To houses and lands. 

County Court Bailiff.] — See post under County 
Cotjkt. 



BAILMENT. 

Deposit of Scrip as Security for Debt— Eights of 
Pledgee.] — Generally speaking, a pledgee of 
chattels has a right to reimburse himself by a 
sale, but this sale should not be to the pledgee, 
or to a trustee for him, and should, according 
to American authorities, be by auction. B. 
deposited scrip for 130 shares with N. to secure 
payment of a debt within a month. B. made 
default, and N. advertised the scrip for sale by 
auction. At this sale N. bought the shares in, 
and stated he would allow redemption within 
a week, and took an I.O.TJ. from E. in part 



75 



BANKERS AND BANKING COMPANIES. 



7£ 



payment, which proved valueless. N. after- 
wards, without further notice to E., sold the 
shares to S., as trustee for M. On a bill by E. 
against M. and N.'s official assignee to set 
aside the sale to M., and for redemption of the 
shares and transfer, Held that after the 
attempted auction sale, E. and N. resumed 
their former positions of pledgor and pledgee, 
and that the sale to M. was an improper sale. 
Declaration that plaintiff was entitled to 
redeem. Ryan v. Macintosh, 4 W. "W. & a'B. 
(E.,) 8. 

Pledge— Sub-Pledge.] — Certain mining scrip 
was pledged to B., as security for certain 
advances, and was sub-pledged by B. to a bank 
to secure an overdraft. The pledgor then 
tendered to the bank the amount of B.'s 
advances. Held that the pledgor was entitled 
to have the property restored. Colonial Bank v. 
Mitchell, 3 V.L.E. (L.,) 12. 

Fraudulent Bailee.] — See Criminal Law. 



BAKER. 

Selling Bread Without Weighing It — "Bakers' 
and Millers' Statute 1865," Sec. 11— Sale by 
Servant] — A baker is liable to the penalty 
imposed by Sec. 11 of the " Bakers' and Millers' 
Statute 1865," for selling bread in his shop 
without previously weighing it in the presence 
of the customer, though the sale may, in fact, 
have been made by his servant. Begina v. 
Panton, ex parte Edmonds. 8 V.L.E. (L.,) 301.' 



BANKERS AND BANKING 
COMPANIES. 

I. Generally. 

II. Negotiable Instruments. 

(1) Cheques, column 76. 

(a) Generally, column 76. 
(6) Endorsement, column 76. 

(c) Presentation for Payment, column 

76. 

(d) Crossed Cheques, column 76. 

(e) Honouring Cheques, column 77. 

(2) Deposit Notes, column 77. 

III. Powers and Liabilities. 

(1) Powers, column 78. 

(2) Liabilities, column 80. 

IV. Customers' Accounts. 

(1) Of what persons, column 84. 

(2) Generally, column 84. 

(3) Obligations in paying acceptances, 

column 85. 

(4) Securities, Deposits, Pledge If Mortgage, 

column 85. 

(5) Lien, column 86. 



I. Generally. 

Evidence of Banker's Books — Act No. 620, Sees. 
4, 8.] — A defendant Bank may, under Sec. 4,. 
prove the entries in books by secondary evi- 
dence of the copies, and need not, under Sec. 
8, require the production of the originals. 
Oriental Banking Corporation v. Smith, 1 
A.L.T., 76. 

II. Negotiable Instruments. 

(1) Cheques. 

(a) Generally. 

Post-dated — Liability of Banker Paying before 
Due.] — A post-dated cheque is a bill of 
exchange for the number of days for which it 
is post-dated; and a banker paying such a 
cheque before the date upon it may become- 
liable to his customer for negligence. Hinch- 
cliffe v. Ballarat Banking Company, 1 V.E. (L ,) 
229 ; 1 A.J.R., 169. 

(5) Endorsement. 

Consideration for — Cashing] — Cashing a cheque- 
for the convenience of the holder is a purchase 
of the cheque, if there be funds to meet it, 
when presented with due diligence, and does- 
not render the holder, who delivers it to the 
person cashing it without endorsing it, liable 
thereon, and does not furnish a consideration 
for a subsequent endorsement of it by him. 
Campbell v. Connor, 6 V.L E. (L.,) 297; 2 
A.L.T., 46; sub. nom., Connor v. Campbell. 

When not a New Drawing.] — Where a cheque- 
which had been cashed and presented by the 
person cashing it was dishonored, and the- 
person cashing it thereupon brought it back 
to the person for whom he had cashed it, and, 
without informing him of the presentment and 
dishonor, requested him to endorse it, Held, 
that such endorsement was not a new drawing. 
Ibid. 

(c) Presentment for Payment. 

In Due Time — Notice oi Dishonour.] — In the 
case of a Bill of Exchange the time for pre- 
sentment is clearly fixed ; but, assuming the 
solvency of all the parties, in the case of a 
cheque there is no limitation for presentment, 
short of the six years of the Statute; and, 
when there is also no insolvency, notice of 
dishonour may be given within any reason- 
able time. Button v. Glass, 5 W. "W. & a'B. 
(L.,) 163. 

(d) Crossed Cheques. 

"Instrument and Securities Statute," No. 204, 
Sees. 33, 34, 35.] — To an action by the bearer 
of a cheque against the maker it was pleaded, 
that before and at the time the plaintiffs 
became the bearers, and before and at the 
time of its presentment, the cheque bore across 
its face two transverse or parallel lines and 
was a duly crossed cheque within the meaning 
of Act No. 204. Held, on demurrer to the plea 
by Stawell, C. J., and Barry,' J. (dissentiente 
Williams, J.,) that it was quite consistent with 
the plea that when the cheque left the drawer 
it was not a crossed cheque, and that irres- 
pective of legislation the lines were not a 



77 



BANKERS AND BANKING COMPANIES. 



78 



material part thereof; and that under Act 
No. 204, the lines were not a material part of 
the cheque, and that the plea was no answer 
to the declaration. Judgment for plaintiffs. 
Golden Lake Company v Wood, 6 W. W. & a'B. 
(L.,)l70; N. C. 2. 

(e) Honouring . Cheques. 
Cheque Improperly Filled In — Essential Features 
of Cheques.] — The statement in the body of a 
cheque is the dominant and essential mode of 
expressing the essential element of a valid 
complete instrument, viz., the sum of money, 
and until this portion is filled in, the instrument 
is incomplete, and a banker is not liable to an 
action at the suit of the customer for refusing 
to honour, on presentment, a cheque thus 
imperfect. Commercial Bank of 'Australia v. 
Hulls, 10 V.L.E. (L.,) 110; 6 A.L.T., 9. 

Grossed Cheques — Notice Not to Fay from Holder 
of Lost Cheque — Liability of Bank.] — The holder 
of a crossed cheque, dated 20th April, lost it 
on that day. The 21st and 22nd were bank 
holiday?. On the 23rd, before the bank opened, 
the holder gave notice of his loss, and required 
the bank not to pay it. A customer of the 
bank, on the 24th, brought in the cheque to be 
carried to his account, and the bank disre- 
garding the holder's notice credited the 
customer with the amount of the cheque, 
considering themselves only bound by a direc- 
tion from the drawer. On an action in the 
County Gourti the Judge held the bank liable 
to make good the cheque to the holder, and 
gave him a verdict for the amount. Upon 
appeal, Held erroneous, and appeal allowed with 
costs. Colonial Bank of Australasia v. Hunter, 
1W.4W. (L.,) 236. 

Notice of Dishonour.] — Notice of dishonour of a 
cheque to the drawer is necessary. Knowledge 
of dishonour is not enough. Clarice v. McLean, 
4 W. W. & a'B. (L.,) 275. 

For cases of Bank's liability for dishonour- 
ing cheques. See post under Liability of 
Bankers, S;c. 

(2) Deposit Notes. 

Liability of Bank for Paying to Wrong Person — 
Gross Negligence.] — M., on August 4th, 1869, 
paid £60 into a bank and received a deposit 
receipt in the following terms : — " Fixed 

deposit receipt, No. 7,196, the Bank, 

Melbourne, 4th August, 1869, .£60. Period, 
six months, repayable 4th February, 1870. 
Eeceived from No. 7,196, the sum of ,£60 
sterling, to be placed to his credit for six 
months fixed on deposit account with this 
bank, bearing interest during that period at 
the rate of 4 per cent, per annum, and in 
the terms detailed by the depositor 1 in his 
paid-in voucher of this date. This receipt 
must be produced when this money is called 
for." Across the receipt was written the words 
"not transferable." The deposit voucher 
referred to was signed by M., and was as 
follows: "4th August, 1869. Paid into the 
Bank the sum of £S0 sterling, for which 



I have received a deposit receipt ; and I agree 
that, in consideration of the bank taking 
charge of the amount, the deposit shall not be 
withdrawn except on giving up this receipt, 
and that the possession of the same by the 
bank shall be conclusive evidence of my 
having, or some person on my behalf, having 
received the amount therein expressed. Paid- 
in Voucher No. 7,196., James McConkey." 
M., when paying in the money, signed his 
name "James McConkey" in a book, so as to 
give the bank a specimen of his signature. 
Another person stole the receipt from M., and 
got it cashed at the bank, writing across it a 
signature purporting to be M.'s, but which was 
unlike M.'s, and wrongly spelt, as follows : — 
" James McComkey." The bank, however, 
took no notice of the difference, and M. sued 
them for the amount. Held that the clause in 
the deposit voucher as to the possession of the 
receipt by the bank being conclusive evidence 
that M., or some one on his behalf, had 
received the money, only shifted the burden 
of proof, and made it incumbent on M. to 
prove gross negligence on the part of the 
bank ; and that he had done so, and was 
entitled to recover. Colonial Bank v. McConkey 
1 A.J.E., 91. 

III. Powers and Liabilities. 
(1) Powers. 

Taking Eeal Security for Present Advances — 
Violation of Charter.] — Where a bank's Act of 
Incorporation prohibited the taking a mortgage 
of real estate to secure a present advance, and 
only authorised taking land as security for any 
debt incurred previously and not in anticipation 
or expectation of such security, and the bank 
took over from another bank an existing debt, 
and took a mortgage as security for it, and the 
debt having increased, subsequently took a 
second mortgage of the same land to secure the 
aggregate amount, Held, per Molesworth, J., 
following National Bank v. Cherry (L.B. 3 P.O. 
299,) that the mortgage was not in respect of 
advances made in expectation or anticipation 
and therefore was valid.. Upon appeal affirmed, 
and Held that the transaction was not a viola- 
tion of the bank's charter. Droop v. Colonial 
Bank, 6 V.L.E. (E.,) 228 ; 2 A.L.T., 90. On 
Appeal, 7 V.L.E. (£,,) 71; 3 A.L.T., 13. 

Power to Advance on Security of Laud.] — Where 
a bank bad taken an equitable mortgage of 
lands under the " Transfer of Land Statute " 
to secure further advances, a decree was made 
for sale of such lands, although advances on 
security of land might be in contravention of 
the bank's charter, tondon Chartered Bank v. 
Hayes, 2, V.E. (E.,) 104; 2 A.J.E., 60. 

" Colonial Bank Act," 19 Vic, Sees. 1, 3, 12, 13— 
Lease of Land for Non-Banking Purposes.]— The 
Colonial Bank obtained a lease of land, with 
an option of purchase. Bill by bank for 
specific performance of contract for sale. There 
was evidence that the bank contemplated to 
lease the land when purchased for other than 
banking purposes. Held, that under Sees. 
1, 3, Vi, and 13 of the " Colonial Bank Act," 
the purchase of the land and the contract for 



79 



BANKERS AND BANKING COMPANIES. 



80 



purchase were illegal unless for banking 
purposes. Colonial Bank of Australasia v. 
Buckland, 9 V.L.E. (E.,) 29 ; 4 A.L.T. 143. 

Lien on Bill of Exchange — Specific Appropria- 
tion.] — In an action by the endorsees of a bill 
of exchange against L., the acceptor, it 
appeared that the defendant accepted the bill 
at three months, on 28th July, 1869, and that 
one K. had drawn the bill and placed it in a 
bank for collection, endorsing it in blank. K. 
had three months previously assigned his 
estate for the benefit of creditors ' (including 
the bank,) and before the assignment K. had 
agreed that all bills lodged should be held as 
security against his overdraft. After the assign- 
ment, both when the bill was drawn and when 
it fell due, K.'s account was overdrawn. The 
bank advanced to one C, a sum to enable him 
to purchase K.'s estate from the trustees, and 
among other security that C. gave was an 
acceptance of his own that did not fall due till 
June, 1870; and in K.'s passbook was an 
entry that the bill sued on was held as security 
for C.'s acceptance: Held, that the specific 
appropriation in the pass-book did not debar 
the bank from applying L.'s bill in payment 
of K.'s overdraft, and that they could sue L. 
as endorsee. Commercial Bank v. Lawrence, 
1 A.J.E , 119. 

Purchase of Shares in a Mining Company — Act 
of Incorporation — Authority of Manager — Corporate 
Seal.] — E. deposited S50 shares in the Or. Mining 
Company with a bank as security for his 
debt to the bank, and subsequently made a 
statutory assignment in favour of his creditors. 
The G. Company applied for a lease, and 
during the application stopped work, by which 
it incurred a forfeiture of the claim. S., a 
previous director, resigned his directorship, 
opposed the application for a lease, and took 
out a summons to enforce the forfeiture ; the 
Warden dismissed this summons, and S. 
appealed. Pending the appeal S. agreed to 
withdraw his proceedings for forfeiture, and to 
an amalgamation of the G-. Company with the 
Al Company in consideration of receiving 
eighty shares in the amalgamated company 
and of the bank's undertaking to pay the calls 
on E.'s share. On 14th June, 1867, M.., the 
manager of the bank, signed an undertaking 
to see all calls paid. On 11th June, 1867, E.'s 
trustees sold the shares by auction, when, they 
were bought by H. and the other plaintiffs, as 
nominees for the bank and in trust for the 
bank. S., to whom the bank's undertaking 
was first known in July, 1867, repudiated the 
letter of 14th June, as not binding on the 
bank, and prosecuted the appeal. On 26th 
June, S. wrote to M. consenting to the amalga- 
mation, and undertaking 'to assign to all the 
shareholders in the G. Company, except E. and 
those claiming through him, shares equivalent 
to those previously held by them. S. wrote 
afterwards, stating that his undertaking was 
conditional on the success of the appeal, if 
unopposed. The appeal was unopposed, and 
S. was successful. The two companies were 
amalgamated, and S. distributed the shares 
according to the letter of 26th June, excluding 
the bank, and retained for himself the shares 



in the new company representing E.'s 550 
shares in the G. Company. On a bill by the 
bank and its nominees, into whose names E.'s 
shares had been transferred. Held by the Full 
Court, reversing Molesworth, J., (1) that the 
purchase of the shares by the bank was not a 
violation of the Act of Incorporation under the 
circumstances; that though the bank had no 
power to traffic in shares as an investment of 
its funds, yet lending money on the security 
of these shares was part of legitimate banking 
business, and the Court would not interfere 
with the bank respecting the management of 
securities or the method of making those 
securities most available : (2) that the under- 
taking of 14th June was within the scope of 
the manager's authority, and did not require 
the corporate seal, for the bank could not be 
regarded as.likely to repudiate an undertaking 
for such an object : and (3) that the forfeiture of 
the mining claim had been brought about by 
unfair means ; that a shareholder must treat 
all his co-shareholders alike, and must not treat 
some as partners in an undertaking and others 
as not ; and that the defendant S. was a trustee 
for the bank of shares in the amalgamated 
company representing E.'s 550 shares in the 
G. Company. Harrison v. Smith, 6 W. W. & a'B. 
(E.,) 182. Decision of Full Court affirmed on 
appeal to the Privy Council. See Smith v. 
Harrison, 3 A. J.E., 44. 

(2) Liabilities. 

For Dishonouring Customer's Bill — Reasonable 
Time to Ascertain whether Account is in Credit.]— 
A banker is not liable to pay his customers' 
bills after banking hours ; and, therefore, the 
time to be allowed for ascertaining what pay* 
ments have been made into a customer's 
account should only be reckoned till 12 o'clock 
on Saturdays, and not till the departure of the 
clerk to the clearing house. Troedel,v. Colonial 
Bank of Australasia, 1 A. J.E., 99. 

Whether Eelationship of Banker and Customer 
Exists.] — E.'s father had remitted to a bank 
certain moneys to be paid to E. by monthly 
instalments. An accumulation of these instal- 
ments took place at one time, and E. went to 
the bank, saw the manager, showed certain 
cheques running over a series of four or five 
months (the holder of these being present at 
the time,) and asked whether those cheques 
would be paid, and he was told, "Yes, if you 
draw no other," and these cheques were paid. 
Afterwards, and without any communication 
with the bank he drew a cheque for a less sum 
than the amount of the instalments which was 
paid, and subsequently drew another cheque, 
which was dishonoured. On an action for the 
dishonour. Held that the relation of banker 
arid customer did not exist, and that the per- 
mission given by the bank was only as to a 
certain sum, and did not authorise its continu- 
ance. Eule absolute for nonsuit. Robinson v. 
Oriental Bank, 3 V.E. (L.,) 177; 3 A.J.E., 74. 

Tor Dishonouring Cheques.] — A bank was under 
an arrangement made with S. to receive a cer- 
tain sum of money, out of which it was to pay off 
a promissory note given by S. to a third person 



81 



BANKERS AND BANKING COMPANIES. 



82 



and the balance was to be paid to S. S. drew 
a cheque upon the bank for the balance, which 
the bank refused to honour. Held, that the 
arrangement did not constitute the relationship 
of banker and customer between S. and the 
bank, and that the bank was not liable for the 
dishonour. Stewart v. Bank of Australasia, 
9 V.L.E. (L.,) 240; 5 A.L.T., 77. 

For Dishonouring Customer's Bill When Cheques 
Paid In to Meet It — Reasonable Time for Ascertaining 
Sufficiency of Cheques.] — M. kept an account at 
a bank for two years. An acceptance was 
given by M. which fell due on a Sunday, and 
therefore, according to custom was to be met 
on the Saturday preceding. On the Friday 
before M. paid in certain sums in cheques and 
cash, and on the Saturday, about twenty 
minutes to twelve, he paid in, in cash and 
cheques, a sum, which assuming the cheques 
to be good was, with those paid in on Friday, 
more than sufficient to meet the bill. All the 
cheques were drawn on banks in Melbourne. 
By the practice of the clearing house cheques 
paid in late on Friday are not sent to be cleared 
till Saturday at 12.30 p.m., and the clearing on 
that day is not effected till 1 p.m. and the 
cheques do not come back to the banks on 
which they are paid till Monday following. 
The bill was presented and dishonoured shortly 
before 12 on Saturday, and the bank made no 
inquiries as to whether the cheques would be 
met. As a fact they were all met, and in 
M.'s pass-book, under date the Friday the 
bill was presented, he was credited with the 
sums paid in on that day. The ledger- 
keeper told M. that town bills would be 
treated as cash, and that town cheques paid in 
on Saturday would meet bills due that day. 
The acceptance as returned had on it the words 
" effects not cleared." The jury returned a 
verdict for M., the judge having directed them 
that it was the duty of the bank to make 
inquiries before dishonouring the bill. On 
rule nisi for a new trial, Held that it was 
unnecessary to decide whether the judge's di- 
rection was right, since the entry in the pass- 
book afforded very strong evidence that M. had 
to his credit funds sufficient to meet the bill, 
and rule for a new trial discharged. MacDermott 
v. Bank of Australasia, 4 A.J.E., 37. 

Agreement that Bank should Hold the Proceeds of 
Bills Held as Security till Bills under Discount had 
been Paid.]— M'C, the plaintiff, was in the 
habit of discounting bills with the defendant 
bank. By an agreement, the manager -was in 
the habit of taking the longer dated bills, and 
holding them as security for the shorter dated 
ones, and of putting the security bills when 
paid to the plaintiff's credit. On one occasion (in 
September) the security bills were paid, but the 
proceeds were not placed to McC.'s credit, and 
at this time a cheque of his was dishonoured. 
M'C. sued the bank for the dishonour and 
obtained a verdict. On rule nisi for a nonsuit, 
Held, that the agreement being that the bank 
should hold the proceeds of the security bills 
till all bills under discount had been paid they 
were not bound to place the proceeds of the 
September bills to the plaintiff's credit. Eule 



absolute. W Gooey v. Bank of New South 
Wales, 5 A. J. E., 23. 

Agreement as to Advances — Verbal Agreement — 
Subsequent Deed.] — A bank verbally agreed to 
advance to a customer, A., .£1 per acre on 
Crown leasehold property (319 acres) so soon 
as he obtained leave to mortgage the lease as 
a security from the Governor-in-Council. A. 
obtained leave, and executed a mortgage to 
secure repayment of ,£150 then due, and all 
sums which the bank might (but without any 
obligation for it to do so,) advance to A. A., 
at the time of the verbal contract, owed £150 
to the bank, and sued the bank for dishonouring 
a cheque given by A., believing that the bank 
had agreed to advance ,£169 besides as under 
the agreement and deed. Held that the verbal 
agreement was inconsistent with the mortgage 
deed by reason of the words in brackets, and 
that A., in executing the mortgage which con- 
tained a condition inconsistent with the verbal 
promise had precluded himself from enforcing 
such promise. Eule absolute for verdict for 
defendant. Abbott v. Commercial Bank, 5 V.L.E. 
(L.,) 366; 1 A.L.T. 57. 

Agreement by Banker Under a Mistake — Excessive 
Damages — Previous Loss of Mercantile Character by 
Customer.] — A banker verbally agreed with a 
customer, D., to allow him an overdraft to a 
certain amount, but by mistake the banker, in 
a letter purporting to embody the terms of 
such agreement, really agreed to allow an 
overdraft to a larger amount. The banker did 
not withdraw the letter. D. sued the bank for 
dishonouring a cheque, and proved some special 
damage, and the jury awarded heavy damages : 
it was proved that D. had previously lost his 
mercantile reputation by allowing previous 
cheques of his to be dishonoured. Held that 
the banker was bound by the terms of his 
letter, and that although the damages seemed 
excessive, owing to LVs loss of character, yet, 
as he proved special damage, the verdict could 
not be disturbed. Doria v. Bank of Victoria, 
5 V.L.E. (L.,) 393; 1 A.L.T., 97. 

Damages — Farmer, what Damages Entitled to — 
Trader.] — A farmer is not a trader, and has 
therefore no mercantile character, and cannot 
recover more than nominal damages for the 
dishonouring of his cheque, unless he prove 
special damage, or that he has a mercantile 
character. Bank of New South Wales v. 
Milvain, 10 V.L.E. (L.,) 3 ; 5 A.L.T., 167. 

Liquidator — 'Winding-up Order Set Aside — Act No. 
409, Sees. 89, 187.] — A company was ordered to 
be wound up, and plaintiff, the manager, was 
appointed liquidator, and as such paid into the 
defendant bank money to the credit of the 
company in liquidation. Afterwards an order 
was made setting aside the winding-up order, 
and the directors of the company wrote to the 
bank requiring them to hold all moneys paid 
into the bank to the credit of H. on behalf of 
the company. H. afterwards presented a cheque 
which was dishonoured. Held that H. could 
not sue for the money in his individual capacity, 
as the money was paid in by him as liquidator, 
and he could not after the last order draw upon 



83 



BANKERS AND BANKING COMPANIES. 



84 



the account as liquidator. Kule absolute to 
enter verdict for defendant. Macdougall v. 
Bank of Victoria, 7 V.L.E. (L.,) 230; 3 
A.L.T., 6. 

Statute of Limitations.] — To a declaration for 
dishonour of a cheque, the defendant bank 
pleaded that it did not receive any moneys of 
the plaintiff's, applicable to the payment of 
the cheque within six years before presentment, 
or -within six years before suit. Held, a good 
plea on general demurrer. O'Ferrall v. Bank 
of Australasia, 9 V.L.E. (L.,) 119 ; 5 A.L.T., 
20. 

For Act of Branch Manager — Waiver of Pro- 
missory Note.] — A manager of a local branch of 
a bank has power, in the ordinary course of his 
business as manager, to waive verbally, for 
consideration, the liability of the maker of 
a promissory note held by such manager as 
security for the account of a customer at such 
branch. Bank of Australasia v. Cotchett, 4 
V.L.E. (L.,) 226, 237. 

For Promises of a Defaulting Manager.] — See 
Blackwood v. Bourke, post under Customers' 
Accounts. 

For Act of Manager.]— The authority of a 
bank manager, as between the bank and the 
public, in the absence of any express 
announcement to the contrary, extends to a 
waiver of the liability of any party to a bill or 
note of which the bank is holder. Colonial 
Bank v. Ettershank, 4 A.J.E. 94, 185. Affirmed 
on appeal to the Privy Council, 4 V.L.E. (L.,) 
239. v ' 

For Acts of Manager — Manager who was also 
Executor Acting; Fraudulently — Bank not Liable.] — 
An executor, who was also manager of a bank, 
signed a cheque payable to bearer, and a 
deposit slip, for the purpose of transferring 
moneys of the estate, lying in the bank. He 
sent these documents to his co-executor for his 
signature, and on the documents being returned, 
misappropriated the money. Held, that since 
the fraudulent executor must be joined as co- 
plaintiff in an action against the bank, the 
latter was not liable at law for the moneys ; 
and Semble, that even if the fraudulent executor 
were not estopped from suing, the bank would 
not be liable at law for such fraudulent act of 
the manager. Nichol v. London Chartered 
Bank of Australia, 4 V.L.E. (L.,) 324. 

Loss of Securities through Theft of Clerk 

Negligence.] — L. deposited with a bank ,£10,450 
worth of debentures for safe keening, these 
being kept in a strong-room, deposited in a 
box, the keys of which L. kept, and he often 
examined the box. The key of the strong- 
room was kept by F., a clerk in the bank. F. 
left the bank in July, 1864, having been in the 
bank's service eight years, and having borne a 
good character. Later in July, L. discovered 
that the debentures had been stolen from the 
box sometime between April and July, and 
evidence was given to show that F. had stolen 
the debentures. L. brought an action against 
the bank manager for the loss, and the declara- 



tion contained two counts ; one alleging a bail- 
ment for hire, the second bailment without 
hire. The jury found for the bank on the first 
count, for L. on the second; damages £10,450 
on that count. Rule nisi for a nonsuit, Held 
that, as negligence involves the non-perform- 
ance of a duty, and that duty, though affected 
by the special facts of the case, must be deter- 
mined by the Court and not by the jury ; that 
the bank as being only gratuitous bailees were 
only bound to take ordinary care, and that 
there was no actionable negligence, F. not 
being known to the bank to be a dishonest 
servant. Eule absolute for a nonsuit. Lewis 
v M'Mullen, 4 W.W. & a'B. (L.,) 1. Affirmed 
on appeal to P.C. (sub. nomine,) Giblin v. 
M'Mullen, L.E. 2, P.C, 317. 

IV. Customebs' Accounts. 

(1) Of what Persons. 

Husband and Wife.] — A wife having property 
settled to her separate use for life, with re- 
mainder as she should, notwithstanding cover- 
ture, by deed or will appoint, with remainder to 
her executors or administrators, opened two- 
accounts with her bankers, a private and an 
administration account, and directed the 
bankers, by the joint letter of herself and her 
husband, to consider any overdraft on her 
private account secured by the administration 
account. The administration account was 
subject to the trusts of the settlement. At her 
death the private account was overdrawn. 
Held that she had contracted so as to bind her 
separate estate, and that the bankers had a 
lien on the administration account in respect 
of the overdrawn private account. London 
Chartered Bank of Australia v. Lempriere, L.E. 
4 P.C, 572; 42 L.J.P.C, 49; 29 L.T., 186; 21 
W.E., 513. 

Public Company — Personal Liability of Directors.} 
— Two of the directors of a company, by a 
letter to the company's bankers, notified that 
their manager had authority to draw cheques 
on account of the company. These two 
directors did not form a majority of the directors 
so as to bind the company. Although the 
company's account was overdrawn at the time, 
to the knowledge of the two directors, the 
bankers honoured the manager's cheques on 
the authority so given. In an action by the. 
bank against the two directors for advances 
made on the faith of the letter, Held, and 
affirmed on appeal to the Privy Council, that 
there was an implied warranty on their part 
that the manager had authority to bind the 
company, and that they were personally liable to 
thebank to the extent of the sums overdrawn by 
the manager subsequently to the date of then- 
letter of authority. Cherry v. Colonial Bank, 
4 W.W. & a'B. (L.,) 177; L.E. 3 P,C, 24. 

(2) .Generally, 
How far Liable for Promise of Manager — Over- 
draft.] — C, a bank manager, indebted to E., a 
customer of a bank, promised to pay £150 of 
this by placing it to E.'s credit and letting E. 
draw against it. C. was convicted of defalca- 
tions in his accounts, and shortly afterwards B. 



85 



BANKERS AND BANKING COMPANIES. 



86 



was informed that his account was overdrawn, 
C. haying paid in no money to his credit. On 
an action against B. for the overdraft, Held 
that C.'s promise did not bind the bank so as 
to remove B.'s liability on his overdraft, per 
Barry and Fellows, J J., because C. exceeded 
his authority; per Stephen, J., because C. 
could not bind the bank without making 
proper entries in the bank books, or at all 
events giving a cheque to B. Blackwood v. 
Bourhe, 1 V.L.E. (L.,) 201. 

(3.) Duty, Obligation, and Powers in Paying 
Acceptances. 

Extent of Power— Overdue Acceptance.] — The 
authority of a bank to pay a bill of exchange 
accepted by a customer payable at the bank, 
continues after the maturity of the bill until 
countermanded by the acceptor. Wine v. Bank 
of New South Wales, 4 A.J.E., 78. 

(4.) Securities, Deposit, Pledge and Mortgage. 

Deposit — Liability to pay — Loss of Eeceipt.] — 
When money has been lodged with a bank on 
the condition that it is not to be withdrawn 
except on production of the deposit receipt, 
and the depositor has lost the receipt, the bank 
is not entitled to withhold the amount of the 
deposit, since the production of the receipt is 
not a condition precedent to the depositor's 
right to recover. The non-production is, how- 
ever, a breach of contract, for which the bank 
could recover damages, such damages would, 
however, from the nature of the case, be merely 
nominal. Dunlop v. London Chartered Bank, 
4 A.J.E , 154. 

Deposit — Specific Appropriation — Authority of 
Teller.] — If a teller of a bank, though he nave 
no authority to receive deposits except in the 
ordinary way of banking, receive a deposit 
subject to special conditions as to the manner 
of its appropriation, which special conditions it 
was his duty to have communicated to the 
manager, and the bank retains the deposit, the 
bank will be deemed affected with notice and 
bound by the special conditions, not because it 
is answerable for all the acts of the teller, but 
because that officer received the deposit subject 
to a condition of which it was his duty to have 
informed the manager. Chamberlain v. English, 
Scottish and Australian Chartered Bank, 4 
V.L.E. (L.,) 45. 

C, not having previously had an account 
with a certain bank, and not knowing that 
they were the holders of his promissory note, 
which was made payable at another bank, went 
to the bank and told the receiving teller that 
he wanted to pay money into the bank. On 
being asked if he wished to open an account, 
C. replied that he wished to pay money in to 
meet cheques drawn , by him. C. paid in the 
money, and some of the cheques mentioned 
were afterwards honoured, but the rest, owing 
to the bank using C.'s money to pay the note, 
were dishonoured. The teller did not inform 
the manager of the conditions under which C. 
paid in his money. On an action for dis- 
honouring the cheques, Held that the bank was 



liable, since it was the teller's duty i)o have 
informed the manager of the conditions. Ibid.' 

Cheque Deposited by Way of Security — Pre- 
existing Debt — Consideration.] — L. drew a cheque- 
upon the Bank of Victoria, payable to bearer, 
and the plaintiff bank became the holders. 
The plaintiff bank sued L. upon the cheque. 
L. pleaded that he drew the cheque for S.'s 
accommodation, and that S. became the bearer 
without any consideration, and on terms of 
giving security for repayment thereof; that S, 
was a customer of the plaintiff bank's, and 
was indebted to them for an overdraft, and 
that the cheque was deposited with and kept 
by the bank as security, and that the bank did. 
not after the deposit of the cheque give S- 
any further credit whatsoever. Held, on 
demurrer to the plea, that a pre-existing debt 
without further forbearance or advance before' 
dishonour of the cheque did not give the bank 
the right to sue, and did not place the bank in. 
any better position than S., who could not 
have sued on the cheque. Judgment for 
defendant. English, Scottish and Australian- 
Chartered Bank v. Levinger, 4 W.W. & a'B.. 
(L.,) 208. 

(5.) Lien. 

Upon What.] — A banker may have a lienj 
upon title deeds of his customer deposited 
with him in the ordinary course of his business 
as banker ; but not over deeds deposited with 
him for safe custody only. Dale v. Bank of 
New South Wales, 2 V.L.E. (L ,) 27. 

Bill of Exchange Endorsed to Bank.] — A bill of 
exchange was drawn by E , upon and accepted 
by W., endorsed by E. to the bank, and oftered- 
by E. to the bank for discount. E.'s account 
being overdrawn, the bank refused to discount 
the bill, and E. left it in the bank and drew a • 
cheque, by which he proposed to increase his 
overdraft, and got further advances on the 
security of the bill. Held that the Bank had 
a lien upon this bill, notwithstanding the fact 
that it was found in the "Bills for Collection" 
ledger, and, having property in it as endorsees,, 
they had a right to sue W. Bank of Australasia 
v. Walters, 2 W.W. & a'B. (L.,) 89. 

Bills Left for Collection.]— Per Stawell, C. J.- 
The deposit of a bill with a blank endorsement 
for collection, followed by an advance upon it, 
would constitute a complete endorsement for' 
value transferring the property to the bank. 
Per Barry, J. An advance upon the general 
credit of a customer would establish a, lien on 
all bills in their hands at the time. Colonial 
Bank v. McDonald, 5 V.L.E. (L.,) 214; 1 A.L.T.,. 
21. 

Evidence of Advances.] — The deposit of a bill 
was proved by the drawer, and the advances - 
were proved by the bank manager and the 
drawer. The defendant gave as evidence a 
statement by a travelling inspector in an 
affidavit in support of proof of a debt in the 
insolvent estate of the drawer that the bank 
had no security for the amount. Held that 
this statement as to a conclusion of law did 



.87 



BARRISTER-AT-LAW. 



not contradict the positive statements of fact 
made by the bank manager and the drawer. 
Tbid. 

Promissory Note Deposited for Collection — Set 
•off.] — A. to secure an overdraft of B.'s gave to 
the defendant bank a promissory note for 
-.£2500. The bank, on B.'s insolvency, 
recovered payment of the note, and received a 
dividend out of the insolvent's estate for B.'s 
overdraft, which exceeded ,£2500. An over- 
due and unpaid promissory note of A.'s for 
.£800 was deposited for collection with the 
bank by executors of a deceased customer of 
the bank indebted to it. Bill by A. to enforce 
payment by bank of a sum of £326, being the 
proportionate amount as on the note of £2500 
-of dividends received by bank out of B.'s 
■ estate. Held and affirmed that there might be 
. a set off in equity, but in the absence of other 
evidence as to the consideration for the note of 
, ,£800 the bank was not entitled to a lien on 
that note, and could not sue on it, or set it off 
.against the .£326 claimed. Ford v. London 
Chartered Bank, 5 V.L.E. (E.,) 328; 1 A.L.T., 
•66, 117. 

On Securities — Government "H" Order.] — A 
Government "H" order deposited with a 
banker is not a security of a customer 
•deposited on which bank can claim a lien, but 
,is merely an authority given to bank for col- 
lection. Board of Land and Works v. Bcroyd, 
1 V.L.E. (E.,) 304. 

For facts see S.C., Equitable Assignment, 
ante column 58. 

An agreement in writing by a customer that, 
in consideration of a bank discounting and 
-allowing an overdraft, it should have a 
.lien on all securities belonging to him which 
.might be in its hands for discounts and over- 
drafts gives no more than an ordinary banker's 
lien, and " securities " mean no more than 
.securities given to a customer and lodged by 
" him, not securities given to bank by him. Per 
Molesworth, J. White v. London Chartered 
Sank, 3 V.L.E. (E.,) 33. 

Bankers have a general lien on all securities 
deposited with them as bankers by a customer, 
unless there be an express contract or circum- 
stances showing an implied contract inconsis- 
tent with the lien. And the bankers having 
-acquiesced in the finding of the first Court 
that securities deposited with them were in 
respect of specific sums, and not on the 
.general account, and not having objected 
thereto in their grounds of appeal to the 
Supreme Court, were precluded from raising 
that question in their appeal to the Privy 
-Council. London Chartered Bank u. White, 
L.E., 4 App. Cas., 413. 

Simple interest is only allowed on such a 
.specific amount as to a mortgagee, notwith- 
standing any banker's custom to the contrary, 
per Privy Council, affirming Molesworth, J., 
■and Full Court [3 V.L.E. (E.,) 33, 168.] Ibid. 



Bankers improperly or without title retain- 
ing moneys overpaid to them as mortgagees 
are chargeable with interest thereon, per Privy 
Council. Ibid. 



BARRISTER-AT-LAW. 

Calling to the Bar — Eule 9, Cap. 2, of " Supreme 
Court Eules."] — Per Stawell, C.J. There is a 
marked distinction in the Eule 9 of Cap. 2 of 
the '* Supreme Court Rules " between the word 
"trade" and the word "business," and those 
who take upon themselves the responsibility of 
making declarations, putting their own inter- 
pretation on the Eules, must, if they afterwards 
find themselves to be wrong, take the conse- 
quences of so acting. In re Goslett, 1 
W.W.&a'B. (L.,)161. 

Calling to the Bar — Trade or Business.] — Eule 9 
of the "Supreme Court Rules," which requires 
that every person applying to be admitted to 
practise as a barrister " imist not be engaged 
in trade or business" during the next 
three years preceding the time he submits 
himself to be examined, strictly speaking 
excludes a candidate who during a period of 
three months in those three years had been 
clerical assistant of the accountant of the Vic- 
torian Eailways. Ibid. 

See also in re Spensley, post column 90. 

Calling to the Bar — English Barristers — " Supreme 
Court Eules," Eule 10.] — The Court has power, 
under Eule 10 of the " Supreme Court Rules" of 
3rd December, 1872, to admit a member of the 
English Bar to practise for a limited period 
before the expiration of the notice prescribed 
by the Eule in question. In re Vale, 4JV.L.K. 
(L.,) 485. 

Calling to the Bar — Decision of Board of Exami- 
ners.] — If no appeal has been made from the 
decision of the Board of Examiners, the certi- 
ficate of the Board touching the compliance 
with the rules and the fitness of an applicant 
for admission to the Bar, will be received by 
the Court as conclusive, and acted upon accord- 
ingly. In re Shaw, 4 V.L.E. (L.,) 509. 

Calling to the Bar — Applicant Previously Admitted 
as Attorney in a Colony Where Professions are 
Amalgamated.] — Qucere whether a person admit- 
ted in another colony, where the professions 
are amalgamated, " as a Barrister solely," does 
not, by afterwards obtaining admission there 
as an Attorney, surrender his qualification to 
be admitted to the Bar of Victoria. Ibid. 

Calling to the Bar — Omission to Sign Boll- 
Book.] — A student-at-law who had complied 
with all the conditions for admission, but had 
inadvertently omitted to sign the roll-book as 
required by Eule 7 of Eegulae Generate, 



89 



BAERISTEH-AT-LAW. 



90' 



December, 1872, was allowed to sign nunc 
pro tunc. In re Duffy, 7 V.L.K. (L.,) 133; 
3 A.L.T., 3. 

Calling to the Bar.]— The Form of Certificate 
(A) in Schedule to Cap. 2 of " Supreme Court 
Rules " which would require an applicant to be 
24 years old is in antagonism to the Rules which 
require him to be 21 years old when applying 
for admission and must yield to the Eules. 
In re Molesworth, 2 W. & W. (L.,) 190. 

Calling to the Bar — Admission.] — Motions for 
admissions to the bar of gentlemen who have not 
been previously admitted elsewhere should be 
made on the last day of term. In re Anonymous, 
2 W. & W. (L.,) 210. 

Calling to the Bar — Practice on.] — Applications 
for the admission of colonial barristers, not 
previously called to the bar, should be made to 
the Pull Court during term, unless there be 
some special reason for the application at 
another time. In re Verdon, 2 W. & W. (E.,) 
82. 

Calling to the Bar — Barrister of Queensland — 
Beciprocity.] — On the admission of a barrister 
of Queensland, not admitted elsewhere, the 
rule of August 10, 1878, providing for recipro- 
city applies, and his personal attendance 
under the General Eules of December, 1872, is 
not required. In re LiUey, 5 V.L.K. (L.,) 121. 

Calling to the Bar.] — A student-at-law having 
completed half his year of studentship, and 
being about to leave for England under certain 
favourable circumstances, was permitted under 
the circumstances to be admitted in his absence 
when the proper time arrived. In re Johnstone, 
3 V.L.E. (L.,) 335. 

Calling to the Bar — Student-at-Law — Notice.] — 
Where a student-at-law was about to give the 
notice of his intention to apply for admission 
too soon, but was deterred from thus giving it 
by tne advice of the Secretary of the Board of 
Examiners, and then omitted to give it at the 
proper time, the Board refused a certificate 
that he had complied with the rules, and on 
petition the Judges affirmed their decision. Ex 
parte Skinner, 2 V.L.E. (L.,) 79. 

Calling to the Bar.] — Where a student apply- 
ing for admission had, in reliance upon his 
lather's advice, who was in turn advised by a 
solicitor, failed to lodge the documents marked 
A. and B. in the Schedule to the Eules at the 
proper time, the Court, under the special cir- 
cumstances of the case, allowed them to be 
lodged nunc pro tunc. In re Evans, 5 A. J.E., 
184. 

Student-at-Law — Who may be.] — A person in 
priest's orders, who has resigned and with- 
drawn from the ministry, and whose resigna- 
tion has been accepted by the bishop, may be 
admitted as a student-at-law under the Eules 
of Court for admission to the Bar. In re 
Macartney, 5 W.W. & a'B. (L.,) 248. 



Admission as Student-at-law— Issuing Certificate 
nunc pro tunc] — Where a person had given his- 
notice of .intention to apply for a certificate of 
admission as a student-at-law, but had not 
followed it up by attending before the Board 
and applying for his certificate, supposing that 
he would have received some notice of the- 
meeting of the Board, the Court held that they 
had no power to order the certificate to be issued 
nunc pro tunc. Ex parte Ferguson, 4 A.J.E., 29. 

Authority of Counsel to Compromise an Action — 
Collateral Claim.] — As between a client and his- 
adversary the only modes of withdrawing a- 
counsel's authority to compromise are (1) by 
withdrawing the brief delivered — a grave and- 
inadvisable step— and (2) by the client giving 
notice to his adversary that he has withdrawn 
from his counsel all authority to compromise. 
Where the declaration claimed damages for the- 
future contingent liability of the plaintiff's 
land being covered with water, and so becoming 
depreciated, Held that the pleadings fairly 
apprised the defendant of such a claim, and 
suchf uture damages were not a matter collateral 
to the main cause of action, but were fairly in. 
issue and within the authority of counsel to 
compromise in respect of them, although not" 
legally recoverable if resisted. Manson v. Shire 
ofMaffra, 7 V.L.E. (L.,) 364; 3 A.L.T., 32. 

Authority of Counsel to Consent to Verdict.] — 
Jones v. Hodgson, post under New Trial — On. 
what grounds granted. 

Limit of Bight to Comment on Conduct of Opposing 
Counsel.] — Challacombe v. Wiggins, post under 
New Trial — On what grounds granted. 

Barrister a Member of Parliament.] — A barrister 
a member of one house of Parliament may 
plead before a committee of the other house- 
Harbison v. Dobson, 2 A. J.E., 51 . 

Disbarring — Obtaining Admission by Improper 
Means — Knowledge — Suspension.] — On motion to- 
disbar S., on the grounds that he had followed. 
a trade or business within three years before 
he applied for examination as a candidate for 
admission to the bar, and that being so dis- 
qualified for admission, he obtained admission, 
to the bar by improper means, it appeared that 
S. was during part of the three years preceding: 
his application the proprietor, printer and. 
publisher of a, newspaper, and collected the 
debts of the paper, and printed for gain- 
matters not essential to the owning, printing 
and publishing of the newspaper; and that he- 
was also on the list of the members of the 
Melbourne Stock and Share Exchange. Before 
admission he swore the necessary affidavit that 
he was not during the three years engaged in 
any " trade or business." Held that he had 
followed a trade or business, and was disquali- 
fied as to the portion of the three years during 
which he did so; that the Court was not 
satisfied he had obtained admission with know- 
ledge of his disqualification; and that the cas& 
was met by suspending him from practising 
for twelve months. In re Spensley, 1 W. W. 
& a'B. (L.,) 173. 

Fees.] — See Costs. 



$1 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 



92 



BASTARD. 



Evidence of Paternity.]— The only evidence 
corroborating a mother's statement was that 
the child was horn on 13th December, 1864, and 
that the putative father, on 16th March, 1864, 
drove her home in a cart, and was seen in her 
company on that day, but not afterwards. 
Held that there was not sufficient corrobora- 
tion in a material particular. Phillips v. 
Tomlinson, 2 W. W. & a'B. (L.,) 92. 

Order for Maintenance — Merely Personal.] — A 
bastardy order is merely personal, and cannot 
be made after the death of the father; and 
there cannot be a supplemental order upon the 
representatives of the father, after the original 
order has expired. Beginav. Sturt, 5 W.W.& a'B. 
.(L.,) 174. 

Maintenance — Warrant of Commitment for Not 
Trading Security for.] — A warrant of commit- 
ment for not finding security for payment of 
maintenance of a bastard, must recite service 
•of the order on which it was based, upon 
the defendant. Begina v. M'Cormick, ex parte 
Brennan, 4 V.L.E., (L.,) 36. 

Complaint for Maintenance — Dismissal — Second 
Complaint.] —If a complaint before justices for 
maintenance of a bastard has been dismissed 
for want of sufficient evidence to corroborate 
the statement of the mother, a fresh complaint 
may be entertained by other justices when 
sufficient evidence is procured, and the decision 
•of the first justices may be regarded not 
as a decision but as in the nature of a nonsuit. 
Ibid. 

Maintenance Independent of Affiliation Orders — 
Form of Order.] — An order of Justices on a father 
for the support pf his illegitimate children, 
should recite that the children are without 
means of support, and that the father is able to 
maintain them, or to contribute to their main- 
tenance. Moran v. Connors, 1 Y .E. (L ,) 105 ; 
1 A.J.E., 107. 

Act No. 268, Sees. 30, 31 — Order for Mainten- 
ance.] — An order for maintenance of a bastard 
which follows the form given in Act No. 267 
("Justices of Peace Statute") is sufficient, and 
need not be made contingent upon the life of 
the child, but the order is bad in so far as it 
gives costs to the mother who was not the 
complainant, and requires security to be given 
for payment of the amount of costs awarded. 
Begina v. Bindon, ex parte Fitttpatriclc, 3 V.L.E. 
<L.,) 3. 

Act No. 268, Sec. 40— Quashing Bastardy Order. — 
Per Macfarland, J. (in General Sessions,) under 
Sec. 40 the Court of General Sessions has 
jurisdiction to quash, confirm or vary a 
bastardy order whether an appeal as to it was 
entered or not. Order quashed. Ludgrave v. 
Belcher, 5 A.L.T., 72. 

' " Neglected and Criminal Children's Act" No. 216, 
Sees. 24, 25, 27 — "Parent."] — Eule nisi granted 
to quash an order of a magistrate by which W. 



was ordered to pay 5s. a week towards the 
maintenance of an illegitimate child at the 
Industrial Schools, on the ground there was 
no complaint in writing on which to found it, 
and that W. was not the " parent " within the 
meaning of the Act. Begina v. Gaunt, ex parte 
Ward, 3 A.J.E., 29. 

Custody of Illegitimate Children.] — A putative 
father has no right to the possession of an 
illegitimate child. Habeas corpus refused. 
In re Bates, 1 V.L.E., (L.,) 178. 



BETTING. 

See GAMING. 



BIGAMY. 

See CEIMINAL LAW AND HUSBAND 
AND WIFE. 



BILLS OF EXCHANGE AND 
PROMISSORY NOTES. 

1. Parties to, column 92. ■ 

2. Form and Stamping of, column 93. 

3. Consideration for, column 94. 

4. Acceptance and Presentment for, column 

94. 

5. Transfer and Endorsement, column 95. 

6. Payment. 

(a) Presentation for, column 96. 

(b) Payment, column 96. 

7. Benewal, column 96. 

8. Notice of Dishonour, column 97. 

9. Action on. 

(a) Generally, column 98. 
(6) Matters of Defence, column 99. 
10. Other Points, column 103. 

1. Parties to. 

Drawer not Capable — Acceptor Estopped from 
Objecting.] — The acceptor of a bill of exchange 
cannot be permitted to object to the capacityof 
the drawer. Coombs v. McDougall, 4 A. J.K., 25. 

A mining company, incorporated nnder the 
Act No. 409, drew a bill on M., who acceptedit, 
and afterwards raised the objection that the 
company had no power under the Act 409 to 
draw bills of exchange. Held that M. could 
not be allowed to raise the objection. Ibid. 



93 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 



94 



2. Fobm and Stamping of. 

Bill of Exchange — What is— Contingency.] — A 
document as follows :—" Six days after the 
ship Childers clears the Port Philip Heads, pay 
John Dynan or bearer the sum of £5 sterling, 
provided he proceeds to sea in the above 
vessel. — E.," is not a bill of exchange, and 
cannot be sued upon as an agreement by a third 
person to whom it has been delivered for value, 
on the ground of want of privity of contract, 
and of consideration. 'Baker v. Efford, 4 A.J .K., 
161. 

Promissory Note — What is — Uncertain Sum.]— 
An instrument as follows : — " I promise to pay 
the sum of ,£49 13s. 4d., and costs, for value 
received," is not a promissory note, being for 
an uncertain sum ; and cannot be made such 
by striking out the costs in the particulars of 
demand; nor is such an instrument evidence 
of a contract, or on an account stated. 
Bentley v. Jamieson, 1 W. & W. (L.,) 145. 

Promissory Note — When Not Negotiable.] — A 
promissory note containing a promise to pay an 
impossible payee, "or order," is payable to 
bearer; but a note which does not mention 
payee, order, or bearer is not negotiable. 
McDonald v. Moffatt, 5 W. W. & a'B. (L.,) 193. 

Date.] — A date is not a material part of a bill 
of exchange, and may be proved by parol 
evidence. Regma v. Gurnett, 5 W.W. & a'B. 
(L.,) 28. 

Period of Payment in Blank.] — Semble a bill of 
exchange in which the period of payment is 
left blank is payable on demand, at any rate it 
is negotiable, and may be sued upon two 
months after having been drawn. M'Lean 
v. Nichlen, 3 V.L.B. (L.,) 107. 

When Bill May be Deemed Stamped — " Stamp 
Duties Act 1879," Sec. 57.] — A bill of exchange 
in the hands of a bona fide holder may be 
deemed to be duly stamped, and within the 
protection of Sec. 57 (iv.) of the "Stamp 
Duties Act 1879," if, when such holder received 
it, it had a proper stamp cancelled in the 
initals of the acceptor, and a date a few days 
subsequent to the date of the drawing. 
Whitty v. Dunning, 6 V.L.B. (L.,) 324 ; 2 
A.L.T., 61. 

Act, No. 645, Sec. 47 — Cancellation of Stamp.] — 
If the name or initials of any one of the 
persons signing the note are written across 
the stamp with the date, in such a way as to 
preclude its use for any other document, there 
is a sufficient cancellation within Sec. 47. Per 
Molroyd, J. It is for the persons disputing the 
valid cancellation, in a case where the person 
whose signature appeared as the last of three 
signatures cancelled the stamp, to prove that 
he was the first to sign. Harriman v. Purches, 
3 V.L.B. (L.,) 234; 5 A.L.T., 76. 

Act No. 645, Sec. 51 — Guarantee.] — Bemhle a 
guarantee to pay an amount of money is not 
one which requires to be stamped under the 
Act.. Croft v. Grimily, 5 A.L.T., 89. 



3. Consideration foe. 



Bill Given for Debt Provable in Insolvency.] — D. 
owed T. 412, and became insolvent, and, 
after sequestration, gave T. a bill of exchange 
for the debt, which was provable on the estate. 
Held that there was sufficient consideration for 
the bill. Tulle v. Dqvies, 2 A.J.E., 114. 

Accommodation Note — For Shares in a Company.] 
— K. gave the P. Company a promissory note 
for 100 shares in the company. K.'s note, 
with a number of others, was lodged with a 
bank, which had the account of the P. Com- 
pany, which was overdrawn at the time of the 
action. For K. it was urged that the note was 
merely an accommodation note, and that the 
P. Company had given him no consideration 
for the note. It appeared that at the time K. 
applied for the shares the prospectus contained 
certain provisions with regard to the issue of 
land-warrants, which were altered before the 
note matured ; but K. had signed the deed of 
association as for 320 shares at the time he 
gave the note, and the deed contained the 
altered provisions. Seld that the note was 
connected with the shares, since K. signed the 
deed, and that it was for him to show that the 
shares had no connection with the note; and 
rule to enter a verdict for K. discharged. Com- 
mercial Bank v. Keith, 1 A.J.B., 131. 

4. Acceptance and Presentment fob. 

Foreign Bill— Duty of Agent.] — A bill must be 
presented within a reasonable time, which is a 
mixed question of law and fact — and in deter- 
mining that question, not the interests of the 
drawer only, but those of the holder must be 
taken into account, and the bill need not be 
sent for acceptance by the very earliest oppor- 
tunity, though it must be sent without im- 
proper delay. Where a foreign bill of exchange 
(Ta3manian) was received in Melbourne for 
collection by the defendant bank as agent for 
the plaintiff bank, on Friday, 8th February, 
at 12 o'clock, and was left with the drawers at 
2 p.m. on the same day. On Saturday (9th) 
one of the drawees wrote an acceptance for the 
firm on the defendant, and gave it to a clerk 
for delivery, and the clerk mislaid it, and on the 
agent calling at 11.30 a.m., as business closed 
that day at 12 noon, he was told to call on 
Monday (11th.) The agent called on Monday 
and was told to call on Tuesday; the acceptance 
made on Saturday had been cancelled. Held, 
and affirmed on appeal to the Privy Council, 
that the agent need not have presented till the 
Saturday (i.e. the day after its receipt,) and 
had till Monday to obtain an acceptance or 
refusal to accept, and if not accepted to give 
notice of dishonour. Bank of Van Dieman's 
Land v. Bank of Victoria, 6 W. W. & a'B. (L.,) 
178;N.C. 1; L.R. 3 P.C.,526; 40 L.J. P.C., 28. 

Per Privy Council. The object of the trans- 
mission of a bill from principal to agent being 
to obtain the acceptance and payment of the 
bill, or if not accepted to guard the rights of 
the principal against the drawer, the duty of 
the agent must be measured by these considera- 
tions, and the agent ought not to press unduly 



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BILLS OF EXCHANGE AND PROMISSORY NOTES. 



96 



for acceptance, provided lie obtains acceptance 
or refusal within the time which will preserve 
the rights of the principal against the drawer. 
Ibid. 

"Where a drawee has written his name on the 
bill with the intention to accept, he is at liberty 
to cancel the acceptance before the bill is 
delivered, or (following a dictum of Mr. 
Justice Byles) "at least before the fact of 
acceptance is communicated to the holder." 
But Held on the facts that the draft, though 
accepted in writing, was not delivered as an 
acceptance, nor was anything which could be 
regarded as equivalent to a delivery having 
taken place communicated by a duly authorised 
agent. Ibid; 6W.W.4 a'B. (L.,) 192. 

5. Transfer and Endorsement. 

Contract for Endorsement — Release of Acceptor — 
Law Merchant.] — F. Z. and Co., being indebted 
to a bank and pressed for payment, agreed to 
give as security a bill of exchange drawn by 
them, accepted by C. and Co., and endorsed by G. 
This bill was drawn, and accepted, and endorsed 
twice by the drawers, G., after delivery of 
the bill to him, writing his name as endorser 
between the two endorsements signed by the 
drawers. It was placed in the bank for 
collection and dishonoured. G. sued M'L., one 
of the partners of C. and Co., on the bill and 
obtained a verdict of .£2500 damages. Rule 
nisi to enter a verdict for defendant on grounds 
(1) that there was no such endorsement as 
would enable G.to sue; (2) that G. had waived 
his right to sue C. and Co. as acceptors. Held 
that as F. Z. and Co. had endorsed and 
delivered the bill to G., he was entitled to sue, 
but that the jury having found that G. 
promised to release C. and Co., and bills of 
exchange being governed by the Law Merchant, 
G.'s verbal renunciation of all claims was as 
full a discharge as a release under seal. Rule 
absolute. Glass v. McLeery, 4 W.W. & a'B. 
(L.,) 159. 

Transfer of Overdue Bill— Eights of Holder.]— If 
a person takes an overdue bill he is just in the 
same position as the worst of the previous 
holders would be in if he were to sue — that is, 
any defence available against a prior holder 
would be available against him. Webster v. 
Tulloch, 2 A.J.R., 57. 

Endorsement — When it Constitutes Endorsee 
Holder— Qualified Endorsement ]— The last en- 
dorsee of a promissory note, obtained an 
advance from a bank, and handed over the 
note, among others, as security for the advance. 
The advance was paid off, but there was a 
general balance due by the endorsee to the 
bank, for which the bank sued on the bill, 
claiming that it was given for the general 
balance. The jury found that it was given 
merely for the advance, and the Court held 
that this being so, since the advance was 
repaid, the delivery and endorsement to the 
bank did not make the bank the holders of the 
note as against the endorsee. Bank of New 
South Wales v. King, 2 A.J.R, 75. 



Promissory Note — Maker Estopped from Denying 
Power of Payee to Endorse.] — The directors of a 
mining company registered under No. 228, and 
the manager obtained an overdraft from the- 
plaintiff bank upon depositing promissory 
notes of the shareholders. The defendant (a- 
director) gave his promissory note payable to- 
the company or order, and it was endorsed by 
two directors (the defendant being one,) the 
manager, and with the seal of the company, 
and handed to the bank. There was no other 
consideration but the above-mentioned accom- 
modation. The bank sued the defendant on 
the note. Held that the defendant could not 
deny the capacity of the payee to endorse. 
Judgment for plaintiff. Bank of Victoria v- 
Brown, 1 V.L.R. (L.,) 47. 

Endorsement of Over-Due Accommodation Promis- 
sory Note by Payee.] — If a promissory note is 
given to a person for his accommodation, on 
the understanding that it is only to be used', 
for the accommodation of such payee, and not 
to be put into circulation except for such 
accommodation, and after having been put 
into circulation for such accommodation it 
returns at maturity to the hands of the payee, 
the note is spent, and a. subsequent endorse- 
ment by him for value to a third person confers- 
no right of action by such endorsee against the 
maker; in other words, the endorsee takes it 
subject to the agreement. Wrixon v. Macoboy r 
6 V.L.R. (L.,) 350; 2 A.L.T., 60. 

Equities Affecting Transfer of Over-Due Bills- 
Accommodation Bill — Agreement not to put into. 
Circulation.] — An accommodation bill of ex- 
change accepted subject to an agreement that 
it shall not be put into circulation, is taken by 
a holder for value after maturity subject to- 
such agreement. Wrixon v. Macoboy, 2 A.L.T., 
60. 

6. Payment. 

(o) Presentation for. 
When Necessary — Demand.] — There is no> 
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. 



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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) 



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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. 
<E.,)26. 

After Demand— Further Notice.] — Where a mort- 
gage of chattels, by way of bill of sale, is 
made payable on demand, with a power of sale 
on default, and a demand of payment has been 
made, no further notice to the mortgagor, before 
.sale, is requisite. United Hand-in-Hand and 
-Band of Hope Company v. National Bank of 
Amtralasia, 3 V.L.E. (E.,) 61. 

9. Priority. 

After Acquired Property.] — An action was 
brought in detinue to recover a billiard table, and 



plaintiff obtained a verdict. It appeared that 
the billiard table formed part of the furniture 
of a hotel in defendant's occupation, but 
previously owned by B. ; that B. had given a 
bill of sale over the furniture, including after 
acquired property, to W. The table was brought 
on to the premises after the first bill of sale. 
B. then gave a second bill of sale over the table 
to the plaintiff, and W. sold the furniture to 
the defendant. Held on rule nisi to enter 
verdict for defendant that before W. had done 
any act to acquire a title at law, the plaintiff 
acquired the property; that there were two 
equities, and in a court of law that which is 
clothed with the legal title must prevail, and 
rule refused. Henry o. Miller, 3 V.L.E'. (L.,) 
293. 

Parol evidence of a prior bill of sale and of 
its satisfaction is no answer to the claim of a 
holder of a bill of sale which is produced. Ford 
v. Parker, 5 A.J.E., 169. 

10. Other Points. 

Bill of Sale Subject to Defeasance not Comprised 
Therein — " Instruments and Securities Act," No. 204, 
Sees. 57, 56, 63.]— W., more than 60 days before 
his insolvency, executed and registered a bill 
of sale in favour of L. S., W.'s official assignee, 
sued L. for the goods, and at the trial it 
appeared that though absolute in form, it had 
been made subject to a verbal condition of defea- 
sance on repayment, so that it was really a 
mortgage to secure a debt of the ostensible 
purchase-money of the apparent absolute sale ; 
and that W. had for a time left the premises 
and then returned, and remained apparently 
as occupant, and had been supplied with goods 
by L. to carry on business .as before. The jury 
gave a verdict for defendant. On rule nisi for 
a new trial, Held that under See. 57 it was 
void as subject to a defeasance not upon its 
face; and that it was void at common law 
under Sees. 56 and 63 as being made in order 
to give "false apparent possession" and "col- 
lusive credit ;" or on the view that, if the jury 
had found "apparent possession" to have 
changed from assignor to assignee, the finding 
was against evidence. Eule absolute. Simpson 
v. Luth, 4 W. W. & A'B. (L.,) 143. 

" Instruments and Securities Statute," No. 204, 
Sec. 57.] — Where an agreement was made after 
a bill of sale was executed, to the effect that 
grantor of bill was to have goods back on 
repayment of money, and such agreement was 
not endorsed on the bill, Held that the agree- 
ment being made after execution distinguished 
it from Simpson v. Luth, and that bill of sale 
was valid. Qane v. McQrane, 3 A.J.E., 22. 

Illegal in Fart— Independent Clauses.] — Ille- 
gality, apart from fraud, only vitiates that part 
of a document which is declared illegal, not 
other independent clauses contained in the 
same document. Tidyman v. Collins, 4 V.L.E. 
(L.,) 478. 

If, therefore, a bill of sale be null and void 
by failure to file the prescribed affidavit of 
renewal, the grantee may recover the debt 



115 

from the grantor, upon an independent cove- 
nant to pay contained in the same deed. Ibid. 

Bill Given as Collateral Security for Payment of 
Eent Under a Lease.] — A bill of sale given as 
collateral security for payment of rent under a 
lease is not limited to the rent actually due, 
but is- valid for the currency of a lease as 
against an execution creditor. Sweeney v. 
Shepherd, 3 A J.B., 49. 

Construction — Licence to Break in and Seize 
Chattels in Default of Payment.] — A licence con- 
tained in a bill of sale for the grantee to break 
and enter the grantor's premises and to seize 
the goods secured in default in payment, is an 
essential part of the instrument, regarded as a 
bill of sale, and is avoided with the instrument 
itself if the latter becomes void. Black v. Zcven- 
boom, 6 V.L.E. (L.,) 473, 479 ; 2 A.L.T., 96. 



BOARD OF LAND AND WORKS. 



lift 



BOARD OP LAND AND 
WORKS. 

1. When a necessary Party, colwmm 115. 
. 2. Rights, Powers, Liabilities, Sfc, column 116. 
3. Costs of and against, column 117. 

1. When a Necessaky Party. 
Sale of Crown Lands.] — Per totam curiam — A 
suit to restrain the sale of Crown Lands 
is defective if the Board of Land and Works 
is not a party. Semble, the substantial 
rights of the Crown to waste lands have 
been ceded to the Board of Land and 
Works by Statute; the sale and disposi- 
tion of them have been entrusted to the 
Board ; the Board is the sole agent as regards 
these lands, and the Crown could not move in 
the matter of selling them without the Board. 
Davis v. the Queen, 6 W.W. & a'B. (E.,) 106, 
127. 

Contract — Position as Agent for Crown.] — The 
Board of Land and Works has been constitu- 
ted for the express purpose of giving it an 
independence of action, and although its cor- 
porate acts are for the benefit of the Crown, 
the maxim Respondeat Superior is not applic- 
able so as to exempt the Board from liability 
on a contract which it has made ; the Board 
may be sued by the contractor, and it is not 
necessary for him to bring his action against 
the Crown by petition. Young v. Board of 
Land and Works, 3 V.E. (L.,) 110, 118; 3 
A.J.E., 54, 77. 

Suit Against the Crown — Board of Land and 
Works.] — E. L. & M. in July, 1858, con- 
tracted with the then members of the Board of 
Land and Works on behalf of the Government, 
for the construction of a railway. In Decem- 
ber, E. L. & M. became partners. In 1860 they 
dissolved, L. becoming liable to E. and M. for 
shares of profits, L. and W. to complete the 



contract. E. M. & L. assigned to H. and 
others the percentages retained by the- Govern- 
ment upon trust, and to W. their interest under 
the contract. Moneys became due under the 
contract for breaches and deviations before and. 
after the dissolution, and the Government re- 
tained a percentage on moneys payable until 
completion. Actions were commenced in the 
names of E. M. & L. and others, against the 
Queen to recover these percentages, and for 
relief as to breaches. In 1870 the actions were 
compromised, and C. purporting to act as M.'s 
attorney, consented to a discontinuance- and 
settlement for ,£60,000, and to entry of satis- 
faction on judgment for that sum. A uelease, 
to which the Board was a party, was also 
executed by H. and others, releasing the- Qjueen 
and the Board from all actions under the con- 
tract. M. petitioned against the Board,H. and 
others, to have the release set aside, and accounts 
taken under the contract, the compromise and 
release having been entered into withaut his 
consent and against his protest. The' Board 
demurred on the ground (inter alia) that it was 
not a necessary party. Held, that the Board 
was rightly made a party, as it deals as an 
agent for the Crown. Merry v. The Qytem,. 
6 V.L.E. (E.,) 7; 1 A.L.T , 137. 

2. Eights, Powers, Duties, aikd> 
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. 
<L,)80. 

Liability for Non-Delivery within Reasonable Erne 
—Notice —Consequential Damages.]— Consequen- 
tial damages will be allowed against a common 
carrier for the non-delivery of goods within a 
reasonable time, when the carrier had express 
notice that unless the goods were delivered 



within a reasonable time, such consequential 
damages would ensue. Lambrick v. Bentivitch, 
4 A.J.E., 73. 

2. Generally. 

Licensed Carrier — Proof of Negligence by — 
" Licensed Carriage Statute 1864," Sec. 20.] — 
The disregard of the provisions of Sec. 14 of 
the "Licensed Carriage Statute 1864," 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 of a 
vehicle in the case of an accident. Robertson 
v. Carmody, 1 V.E. (L.,) 6 ; 1 A.J.E., 24. 

Unlicensed Carrier — Special Contract— Act No. 78.] 
— In an action for the value of work and labour 
done in the carriage and delivery of goods, the 
defendant pleaded that the work and labour 
was done by plaintiff " as a carrier by land for 
hire, within the Colony of Victoria," and that 
plaintiff had not a license "to carry on business 
as a carrier " under the Act No. 78. Eeplica- 
tion that the work was done under a special 
contract. On demurrer to the replication, Held, 
that the Act No. 78 requires carriers generally 
to take out licenses, and is not limited to the 
class known to the common law as " common 
carriers;" and that though a "common carrier," 
who enters into a special contract for the carriage 
of goods, ceases to be a common carrier quoad 
such contract ; yet a carrier, within the mean- 
ing of the Act No. 78, may enter into a special 
contract for carriage, and still continue a 
carrier quoad the subject matter of that 
contract; and that therefore plaintiff could 
not recover. Renwick v. McCulloch, 1 W.W. & 
a'B. (L.,) 48. 

When Liable for Non-Delivery — Privity of Con- 
tract.] — Plaintiff took silk to a dressmaker to 
be. made up, and instructed her to send the 
parcel home by a cabman. The parcel was 
delivered to the cabman by the dressmaker's 
servant, but the cabman did not deliver the 
parcel. The plaintiff was nonsuited in the 
County Court, on the ground that there was 
no privity between plaintiff and the cabman, 
and that the action would only lie at the suit 
of the dressmaker. On appeal, Held that if 
the action were for trover, plaintiff could sue, 
but that the cabman was not liable to plaintiff 
as a carrier, and decision upheld. Gwyatt v. 
Hayes, 2 A.J.E., 107. 

Carrier by Sea.] — See Shipping. 



CERTIFICATE. 

For t Costs.]— See Costs. 

Of Architects and Surveyors.]— See Work and 
Labour. 

Of Discharge from Insolvency.] — See Insol- 
vency. 



125 



CERTIORARI. 



126 



CERTIORARI. 

Where the Writ Lies.] — Certiorari does not 
-operate on persons whose duties are merely 
ministerial, or whose functions are merely 
: administrative, engaged in carrying into exe- 
cution powers delegated to them by law. The 
writ will not lie, therefore, to bring up a 
regulation made by the Board of Education 
under the " Common Schools Act," No. 149, 
where such regulation possesses none of the 
characteristics of a judicial proceeding, for the 
purpose of having it quashed as being ultra 
vires ; but the regulation must be attacked in 
some other manner. Regina v. Board of Educa- 
tion, 2 V.E. (L.,) 176; 2 A.J.B., 97. 

Where the Writ Lies.] — Quare whether certio- 
rari is the proper remedy for a prisoner who 
has been convicted, as he contends, irregularly. 
-Regina v. 8chreibvogel, 10 V.L.E. (L.,) 92. 

Where the Writ Lies — Appeal.] — Where appeal 
lies certiorari will not, unless the party who 
wishes to bring up the proceedings on certiorari 

• can show that there has been a manifest and 
total want of jurisdiction or fraud. Regina v. 

•Quintan, ex parte Sampson, 10 V.L.E. (L.,) 
102; 6 A.L.T., 8. 

In a mining partnership suit under Sec. 101, 
Sub-sec. vii. of the " Mining Statute 1865," the 

-Judge of a Court of Mines at the hearing of a 
suit made a decreet simply for the plaintiff, 
with costs; but no costs were taxed by the 

-Judge at the hearing, as there should have 
been under Sec. 230 of the Statute in question. 
Afterwards the Clerk of the Court taxed the 
costs and drew up the decree, which was settled 
and signed by the Judge, and under it the 
costs to be paid by the defendants were fixed 

. at £A 9s. The defendant had notice to attend 

. at the drawing up of the decree, but did not 
do so. The defendant had the decree brought 
up on certiorari, and sought to quash it on the 
grounds that the Judge had acted wrongly in 
not himself taxing the costs of the decree, and 
that, under Sec. 230 of the Statute, the Clerk 
of the Court had no power to tax the costs. 
Held, that defendant might have appealed 
from the decree as settled, as containing more 
than the decree actually pronounced; but that, 
since the Judge had jurisdiction to settle the 
•decree, an appeal was the proper remedy, and 
it could not be quashed on certiorari. Ibid. 

Jurisdiction to Grant] — When a certiorari is 
. said to be taken away by statute, the superior 
Court is not absolutely deprived of the power 
to issue the writ ; but its action as to the writ 
is controlled and limited, and it cannot quash 
the order removed on certiorari except upon 
the ground of manifest defect of jurisdiction in 
the tribunal that made the order, or of mani- 

- fest fraud in the party procuring it. Matters 

- on which the defect of jurisdiction depends 
may be apparent on the face of the proceedings 

• or may be brought before the superior Court 
by affidavit, but must be extrinsic to the adju- 
dication impeached. Colonial Bank v. Willan, 
5 L.K., P.C., 417; 43 L.J., P.C., 39; 5 A.J.E, 

• 53. 



" Mining Statute 1865," No. 291, Sees. 344, 172 
— Winding-Up Order.] — The Courts of Mines 
stand to the Supreme Court in the relation of 
inferior Courts, but the power of issuing a 
certiorari in respect of any proceeding under 
Act No. 291 is taken away by Sec. 244. Ibid. 

Courts of Mines — Jurisdiction of Supreme Court.] 
— An order bad been made by the Court 
of Mines for the winding up of a company 
registered under Act No. 228. The order was 
regular upon the face of it, but the Supreme 
Court held that the petitioning creditor's debt 
was not proved, and that there was no foun- 
dation for the order, and quashed it on cer- 
tiorari [Regina v. Bowman, ex parte Willan, 
3 V.E. (L,,) 258; 3 A.J.E., 122.] Held, on 
appeal to Privy Council, that the order was 
within the provisions of Sec. 244 of Act No. 
291, and although the Supreme Court had, 
notwithstanding the provisions of the section, 
power to issue a certiorari in the case of mani- 
fest defect of jurisdiction, or of manifest fraud 
in the person procuring it, yet the reason on 
which this order was quashed did not justify 
the exercise of the jurisdiction. Ibid. 

Act No. 565, Sec. 36 — Jurisdiction of Court.] — 
A Chairman of General Sessions fixed the valu- 
ation of certain property for rating purposes 
upon a wrong principle, as it appeared to the 
Court, and did not state a case, Upon a rule 
nisi to quash the return to a writ of certiorari 
issued upon the fiat of the Attorney-General, 
Eeld that certiorari having been taken away by 
the statute, the Court had no jurisdiction to 
consider the merits of the case, as the Chairman 
had jurisdiction to fix the valuation. Eule 
discharged. Regina v. Cope, ex parte Mayor of 
Essendon and Flemington, 7 V.L E. (L.,) 337; 

3 A.L.T., 30. 

Where the Writ Lies— Court of Mines.]— Certiorari 
will not lie to bring up a winding-up order made 
to wind-up a mining company, where the order 
is good on its face, showing no excess or defect 
of jurisdiction. The proper method of question- 
ing the sufficiency of the materials upon which 
the order is made is by appeal. Regina v. Leech, 
ex parte Tolstrup, 5 V.L.E. (L.,) 494. 

Court of Mines — Winding-up Order.] — See Regina 
v. Hackett, ex parte Golden Gate Company, post 
under Mining — Company — Winding-up Order. 

Court of Mines.] — A writ of certiorari will 
not issue to bring up to the Supreme Court the 
decision of a Judge of a district Court of Mines 
on the sufficiency of the service of a petition 
for winding-up a mining company. If the 
writ did issue it would be making the Supreme 
Court a Court of Appeal on a question of fact. 
Re New Ringutood Company, ex parte Smith, 

4 A.L.T., 58. 

Court of Mines — "Mining Statute 1864 Amend- 
ment Act," Sec. 23.]— A certiorari will not lie to a 
Court of Mines to quash a judgment on the 
ground that the Judge has refused to state a 
a case or suspend his decree for ten days, as 
required by Sec. 23 of the " Mining Statute 1864 
Amendment Act," No. 446, where the question 



L27 



CERTIORARI. 



128: 



n dispute is one of fact and not of law. Begina 
•i. Dunne, ex parte Golden Fleece Old Chum 
Company, 4 A. J.B., 123. 

Bestraining Judge of Court of Mines from Taking 
lecounts after Decree.] — Begma v. Sogers, post 
cinder Mining — Practice— Jurisdiction of Court 
jf Mines. 

Ilining Warden.] — Where a summons to 
appear before a warden was not signed by the 
warden, but was signed by the warden's clerk, 
not in the name of the warden (under No. 446, 
Sec. 14,) but in his own j but the defendants 
took no objection to this at the hearing, and 
the trial proceeded, and a verdict was given 
for the complainant. On rule for a certiorari, 
Held that if the objection had been taken at 
the hearing before the -warden it would have 
been good, bat that having allowed the trial to 
proceed, and having had an opportunity of 
being heard upon every point, they could not 
afterwards take the objection; and rule dis- 
chargedt Begina v. Btrutt, 4 A.J.E., 147. 

Quashing Warden's Order — No Jurisdiction in 
Warden over Land under Lease from Crown.] — 
Begina v. Smith, under Mining — Practice, &o. 
'■ — Warden's Jurisdiction. 

Warden's Order — Appeal Pending — Warden's 
Befusal to Grant Order of Possession Quashed under 
Sec. 3 of Act No. 446.] — Begina v. Orme, ex parte 
Droscher, post under Mining — Ibid. 

County Court.] — Application for certiorari 
to remove a case from the County Court to the 
Supreme Court should be made to a Judge in 
Chambers. Gilmer v. Burmister, 6 W. W. & a'B. 
(L.,) 209. 

County Court — Act No. 345, Sec. 121 — County 
Court Judge Irregularly Granting a New Trial and 
Setting Aside Judgment.] — A County Court Judge 
possesses authority to set aside a judgment 
and grant a new trial as often as he likes, and 
even where he sets aside a judgment after a 
lapse of 16 years in an unusual way, and in 
violation of the rules, his disregard of the 
rules does not deprive him of his jurisdiction 
so as to justify the issue of a writ of certiorari. 
Begina v. Bindon, ex parte Cairns, 5 V.L.E. 
(L.,) 93. 

Where the Writ Lies— Court of Insolvency.] — 
The Supreme Court has no jurisdiction by 
certiorari over the Insolvent Court. In re 
Slack, 2 V.K. (L.,) 135. 

Where the Writ Lies.] — Certiorari lies from e 
Military Court, though under the "Military 
and Naval Discipline Act 1870," the proceedings 
of such Court are lodged and recorded in the 
office of the Attorney-General. Begina v. Sturt, 
ex parte Johnson, 4 A. J.E., 78. 

Where the Writ Lies.] — The proper remedy 
where the justices who adjudicated in a sum- 
mary proceeding under Sec. 511 of the ".Local 
Government Act 1874," for obstructing a person 
employed by a municipal council to remove 
obstructions from a road, are also members of 



the prosecuting council, is by certiorari, and 
not by prohibition; for a prohibition would 
imply that no justices could hear the case. Ex 
parte Scott, 2 V.L.E. (L.,) 70. 

Where Writ Lies— Not Bequired under " Justices, 
of the Peace Amendment Act," No. 571, Sec. 4.] — It 
is not necessary, when it is desired to quash a 
prpceeding under Act No. 571 ("Justices of the 
Peace Amendment Act,") Sec. 4, to bring up 
such proceeding before the Court by certiorari 
or otherwise. Begina t>. 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. 

(<J) Effect of Order to Wind-up, column 
167. 

(e) Concurrent Petitions, column 168- 

(/) Costs, column 169. 

(g) Other Points, column 169. 

(4) Liquidators, column 171. 

(5) Sequestration, column 171. 

(6) Contributories, column 172. 

XII. Mining Company — See Mining. 

I. Formation, Constitution and Incor- 
poration or Company. 

1. Prospectus. 

(a) Misrepresentation in. 

What is.] — H. & H. sold eight mining leases 
to W. & B. for certain money down, promissory 
notes for more,and 11,200 paid-up £1 shares in a 
mining company to be formed by W. & B. for 
the balance, amounting altogether to the 
nominal value of ,£26,840. A company was 



137 



COMPANY. 



138 



formed by W. & B., and a prospectus issued by 
them, which stated the price in shares and 
money to be paid to H. & H. for the purchase 
of the shares as £36,640, consisting of 12,000 
paid-up £1 shares, and 18,000 shares paid up 
to 10s., besides payments by cash and notes, 
and the shares were fixed in accordance with 
this sum, there being thus an excess of 800 
paid-up shares, and 18,000 paid up' to 10s. 
This excess of shares was appropriated by 
W. & B. to their own use. Held, that the 
prospectus was intended to mislead purchasers 
of shares in the company. Benjamin v. 
Wymond, 10 V.L.R. (E.,) 3 ; 5 AiL.T., 153. 

See also Allan v. Gotch, post column 164. 

Impossibility of Object for which Company was 
Formed a Bar to Proceedings to Recover Calls.] — 
See Sandhurst and Inglewood Tramway Com- 
pany v. Morrow, post column 161, under Calls. 

(6) Variance between Prospectus and 
Memorandum. 

What is Consistent with Deed of Association 
Substantially Bearing out Prospectus.] — The pros- 
pectus of a company stated that the capital 
was to consist of £5,000 in £1 shares ; that the 
company was projected with a view of pur- 
chasing the claim held by the F. Company, and 
that as it was estimated the issue of 4,000 
shares would be enough to enable the proposed 
company to purchase the interest of the 
shareholders in the E. Company, to purchase 
and erectj machinery, and defray working 
and other incidental expenses, only that 
number of shares would be then issued. The 
deed of association provided that there should 
be 2,500 shares, the whole of which should be 
money shares. The company began operations 
with only 2,475 shares, of which 1,289 were 
^iven to the old proprietors as compensation, 
leaving no more than 1,186 shares liable for 
calls. Held, that the deed substantially bore 
out the prospectus. Bowman v. Homan, 1 
W. & W. (L.,) 390. 

(c) Alteration. 

When Shareholders Bound by.] — See Commercial 
Bank v. Keith, 1 A. J. II., 131, ante column 94. 
Bills of Exchange. 

2. Memorandum and Articles of Association, 

Alteration of by Resolution — When Shareholders 
Bound.] — The Memorandum of Association of 
a banking company registered under " The 
Companies Statute 1864," provided for £h 
shares. After £3 had been paid up, the 
company in general meeting resolved to write 
off £1 per share, and the subsequent quarterly 
returns under " The Companies Statute 1864," 
No. 190, and "The Banks and Currency 
Statute 1864," No. 194, stated £2 per share 
only as paid up. Upon winding-up, the 
liquidators sought to enforce the liability to 
the additional £1 per share. Held, that the 
writing off would not bind a dissentient share- 
holder, or shareholders generally, though 
individuals might assent and be bound; that 
there was no contract implied in the Statutes 



that shareholders are responsible if the, returns 
furnished are not true. Application refused. 
In re Provincial and Suburban Bank, 6 V.L.R. 
(E.,) 145. 

Invalid if not in Accordance with the Terms of 
the Act.] — The provisions of the articles of 
association of a mining company and the regu- 
lations thereunder are invalid if not in accord- 
ance with the terms of the Act. Therefore when 
the articles of association of a company provided 
for elections of directors at half-yearly inter- 
vals, but provided that if meetings should not 
be held, the former directors should continue 
in office, as if re-elected (so that they might 
possibly hold office for more than a year,) and 
the appointed period of election was afterwards 
departed from, and a director elected for a 
period beyond _ that appointed, and a whole 
board was ejected at an intermediate half- 
yearly meeting prescribed for election of part 
only, Held that Section 39 of the Act No. 228, 
enabling rules to be made for election and 
annual retirement of directors impliedly pro- 
hibited any director from continuing for a 
longer period in office. Upon appeal, Semble, 
that if special notice had been given of the 
intention to elect the whole board that it would 
have been a valid election. Schmidt v. The 
Garden Gully Company, 4 A.J.R., 66. Affirmed 
on appeal. Ibid, 137. 

3. Registration. 

Registration of Members — Non-compliance with 
Sees. 24, 25 of the "Companies Statute 1864" — 
Several Offences.] — A non-compliance, extending 
over several days, with Sec. 24 of the " Compa- 
nies Statute 1864," which requires a list of 
members and a summary to be forwarded at 
certain times to the Registrar-General, does 
not constitute a separate offence for each day 
so as to be incapable of being comprised in one 
summons and one conviction under Sec. 25 of 
the Act. Ex parte The Colonial Mutual Life 
Assurance Company, in re Bishop, 4 V.L.E. 
(L„) 287. 

4. Proof of Registration and Incorporation. 

Evidence of Registration — Estoppel.] — G., who 
had signed the deed of association of a mining 
company, was sued for calls. This deed recited 
the registration and incorporation. It appeared 
that the registration was defective. Held, that 
G. was not estopped by his signing the deed, 
its recitals being only prvmd facie evidence : if 
it were proved aliwn.de that the deed was defec- 
tive, such evidence might be adopted. Reeves 
v. Greene, 6 W.W. & a'B. (L.,) 87. 

•'Companies Statute 1864," Sees. 168, 169 — 
Validity of Winding-up Order.] — A company was 
being wound up under order of Court on 
December 8th, 1864, ■ Upon summons requiring 
that certain directors should appear and be 
examined, objections were taken against the 
validity of the winding-up order. It appeared 
that on June 9th, 1864, the Registrar-General 
published a notice that the company was 
"registered" under the Statute, and that on 
May 19th, 1865, a further notice appeared 
" That the company was on the 9th day of 



139 



June, 1864, incorporated as a company limited 
by shares." Held, that the Gazette notice of 
June 9th was insufficient as a notice of incor- 
poration, -but that the retrospective effect of 
the Gazette notice of May 19th operated to 
validate previous proceedings, and the directors 
were required to submit to the examination. 
In re The Melbourne and Newcastle Minmi 
Colliery Company, 2 W.W. & a'B. (E.,) 127. 

Proof of Incorporation.] — In an action by a 
corporation the declaration described the cor- 
poration astheW., &c, Company, "Begistered," 
the word " registered " being added to show 
that the company was incorporated under the 
Act. Seld, that if the word were improperly 
in the declaration, the defendant should have 
applied to have it struck out, and if rightly, 
then the proper course was to traverse it; and 
that not being traversed it was admitted. 
Wellington Gold and Tin Mining Company v. 
Lambricl, 1 V.E. (L.,) 13; 1 A.J.K., 26. 

Certificate Signed by Deputy-Registrar— "E. P. 
Statute," No. 213, Sec. 215— " Mining Companies 
Act," No. 409, Sec. 10.] — In a criminal informa- 
tion for embezzling monies belonging to a 
Mining Company it appeared that the certifi- 
cate of registration was signed by the Deputy- 
Begistrar. Held, that under Sec. 215 of Act 
No. 213, the certificate of registration was 
sufficient. Conviction affirmed. Regina v. 
Walter, 5 A.J.E., 25. 

5. Amalgamation and Transfer. 

Purchase of Shares to Increase Votes — When 
"intra vires."] — The committee of management 
of the A. Company entered into an agreement 
with the B. Company as to the compromise of 
a suit pending as to a certain piece of land, 
and the amalgamation of all the ground of the 
two companies, except the piece of land in 
dispute. Some of the shareholders brought 
a bill as on behalf of themselves and others to 
restrain the agreement, alleging that the agree- 
ment was ultra vires and invalid and prejudi- 
cial to the shareholders, and that shareholders 
ln.the B. Company had purchased shares in the 
A. Company to obtain votes, and enforce the 
agreement. On motion to dissolve the ex parte 
injunction obtained, Held, that it was com- 
petent for persons desirous of carrying a point, 
lawfully within the functions of the company 
to purchase shares in the market to increase 
their number of votes, and to reject committee 
men opposed to their views, and elect others in 
their place. Lee v. Robertson, 1 W. & W. (E.,) 
374. 

Amalgamation of Companies — Duties of Share- 
holders, inter se.] — Where two mining com- 
panies are on the point of amalgamation, and 
a shareholder in one of the original companies 
is prosecuting a suit in a District Court to 
have a mining claim forfeited, and promises to 
transfer to all the shareholders, except one, 
shares in the amalgamated company equiva-. 
lent to their old shares in the original company, 
such shareholder must treat all the co-share- 
holders alike, and cannot be permitted to deal 



COMPANY. 140 

with one shareholder as if he were still his 
partner in the undertaking, and another as if 
he were not. Such shareholder will be treated 
as a trustee for the excluded shareholder of the 
shares in the amalgamated company, repre- 
senting the charges held by the excluded 
shareholder in the original company. Harrison 
v. Smith, 6 W.W. & a'B. (E.,) 182, 212. On 
appeal to Privy Council, 3 A.J.E., 44. 

See S.C., Banker and Banking Companies, 
column 79. 



Distribution of Shares — Between Shareholders in 
the Two Companies.] — A bank was', entitled to 
550 shares in the G. G. Company, which had 
forfeited its title to a mining claim. S., who 
was also a large shareholder in the company, 
obtained possession of the claim, and, conceiv- 
ing that the bank had not acted properly in 
several transactions connected with the com- 
pany, refused to allow them any interest in the 
ground. To the other shareholders he allowed 
the same interest as they had in the old 
company. An amalgamation took place between 
the Gr. G. Company and the Al Company, 2040 
shares in the amalgamated company being 
allotted to the shareholders in the G. G. Com- 
pany. In the Equity suit instituted by the 
bank the Court held that the bank were 
entitled to shares, as well as the other share- 
holders, and a decree was made referring it to 
the Master to ascertain to what number of 
shares they were entitled in the amalgamated 
company. The Master found that the bank 
ought to receive 550 shares, and reported 
accordingly, The bank excepted, on the ground 
that they ought to receive an interest propor- 
tionate to the 550 shares in the G. G. Company. 
S., in answer to this, said that only 1600 shares 
were distributed among the shareholders in 
the G. G. Company, 440 of the 2040 being given 
to him for his consent to the amalgamation, 
and the bank were not entitled to any share in 
the 440 shares so given. Held that this ques- 
tion was concluded by the decree, and that the 
bank were entitled to a rateable share of the 
2,040 shares. Harrison v. Smith, 1 A.J.B., 22. 
Affirmed on appeal, p. 75. 

Shareholder Repudiating — Share Register.] — 
Two mining companies, B. and D., were 
amalgamated, on the terms that the shares in 
the B. Company should be increased, and the 
additional shares allotted to the shareholders 
in the D. Company. One of the shareholders 
in that company refused to assent to the 
amalgamation, and repudiated the shares 
allotted to him; but he was entered on the 
register of the B. Company as proprietor, but 
subsequently forfeited the shares, and they 
were sold, and his name removed from the 
register. Subsequently the plaintiff instituted 
an action for the recovery of these shares on 
the ground that they had been illegally 
forfeited. Held, that the amalgamation was 
not binding on him, and that he might have 
followed the property of company D. into the 
hands of the amalgamated company ; but that 
he could not, under the circumstances, claim 
to be a shareholder in the amalgamated com- 
pany, and to have his name put on its register 



141 



COMPANY. 



142 



of shareholders. Cock v. Lady Barkly Gold 
Mining Company, 8 V.L.E. (M.,) 51 ; 4 A.L.T., 
115. 

Suit by Shareholder to have his Name Ee-instated 
in Register — Amalgamation of • Companies after 
Forfeiture — Necessary Parties.] — See dishing v. 
Lady Barkly Gold Mining Company, post 
column 163. 

Person Owning an Interest in a Claim — Amalga- 
mation Behind his Back — His Bights as Against 
Company.] — Parle v. Harp of Erin Company, post 
under Partnership — Retirement and Expul- 
sion of Members. 

II. Promoters and Directors. 
(a) Promoters. 
Liability for Secret Profit.]— H. and H. sold 
eight mining leases to W. and B. for certain 
money down, promissory notes for more, and 
11,200 £1 paid-up shares in a mining company 
to be formed by W. and B., for the rest, 
amounting altogether to the nominal value of 
.£26,840. A company was formed by W. and 
B., and a prospectus issued by them, which 
stated the price in shares and money to be 
paid to H. and H. for the purchase of the 
lease as J336,640, comprising besides the pay- 
ments in cash and notes 12,000 fully paid-up 
shares, and 18,000 shares paid up to 10s. This 
excess of shares was appropriated by W. and 
B. to their own use. As to the 18,000 shares, 
they were issued in the names of H. and H., 
who signed transfers in blank of them, and 
handed them to W. to be dealt with as he 
thought fit. The remainder (800 fully paid- 
up shares) were issued directly to. B., who 
divided them equally between himself, W., and 
one S., who joined in endorsing the promissory 
notes to H. and H. Held, that W. and B. 
were liable to the company for the surplus 
shares appropriated by them, and that the 
proper measure of the value of the shares 
appropriated by W. and B.,who were construc- 
tive trustees, was the price they would have 
fetched in the market at the time they were 
appropriated, and not the highest price that 
might have been obtained for them up to the 
time of the suit being instituted. Benjamin v. 
Wymond, 10 V.L.E. (E.,) 3; 5 A.L.T., 153. " 

(e) Directors. 

1. Election. 

Appointment of Directors — Construction of Rules.] 
—It was provided by a rule of a mining com- 
pany "that an extraordinary meeting of the 
company shall have full power to rescind, 
cancel, alter, or vary any resolution passed at 
any meeting of the company, or by the board 
of directors if the matter or thing required to 
be done by any resolution shall not have been 
done at the time of calling the extraordinary 
meeting." Another rule provided " that the 
board of directors, consisting of five share- 
holders, shall be elected at each annual general 
meeting of the company . . . and the 
directors shall continue in office till the next 
annual general meeting of the company, when 
they shall retire from office." Held, that the 
appointment of directors arrived at by an 
annual general meeting could not be set aside 



by an extraordinary general meeting. Schaw 
v. Wekey, 1 V.R. (L.,) 205; 1 A.J.E., 161. 

Election and Continuance in Office.] — A rule 
made by a majority of the shareholders of a 
mining company under Act No. 228, that the 
powers of the directors shall continue as long 
as there exists a quorum, is not inconsistent 
with the terms of Sec. 39 of that Act, 
although the number of directors may thereby 
be fluctuating; but a rule, that if general 
meetings for the election of directors be not 
held at the times appointed, the directors 
shall continue in office indefinitely, and be 
considered as re-elected, is ultra vires under 
Sec. 39. Schmidt v. The Garden Gully 
Company, 4 A.J.E., 137. 

See also S.C., ante column 138. 

Act No. 228, Sec. 23.]— Where an advertise- 
ment had been inserted in a local newspaper 
to the effect that the half-yearly ' meeting 
would be held on a certain day for the purpose 
(inter alia) of electing a full board of 
directors, six days before the meeting was held, 
Held, that such notice should have been a four- 
teen days' notice under Sec. 23, and that the 
meeting and election of directors were invalid, 
and that two directors elected previously, who 
had not retired from office, could not continue 
in office after such meeting, for the election of 
a full board, even if invalid, necessarily 
involved their retirement. M'Lister v. Garden 
Gully Company, 5 A.J.E., 152. Affirmed on 
appeal to Privy Council, L.E., 1 App. Ca., 39. 

Election by Resolution. — Rescinding.] — When 
directors are elected by a resolution, the power 
to rescind resolutions does not include a power 
to rescind such election. [Schaw v. Wekey, 
1 V.E. (L.,) 205, followed.] Aberfeldie Gold 
Mining Company v. Walters, 2 V.L.E. (E.,) 
116. 

Mining Company — Election of Directors — Quorum 
— Extraordinary Meeting.] — By the rules an 
annual general meeting was to be held in July, 
and if within an hour of the time of meeting 
there was not a quorum present the meeting 
should stand adjourned for a week, and then 
if there was no quorum it should stand till 
next general meeting — old directors continu- 
ing. At the first general meeting, July 31st, 
there was not a quorum ; but no one called 
attention to it, and the meeting elected two new 
directors. The manager then summoned a 
second meeting for August 7th, a week 
after the first meeting, and five directors were 
elected, two being among those elected at the 
first meeting, and summoned an extraordinary 
general meeting to confirm this, which was 
done. Differences existed between the directors, 
the two sets working independently. Motion 
for injunction to restrain the two common 
directors from acting. Held that the Court is 
disinclined to interfere in such a case by 
interlocutory injunction. Semble, per Moles- 
worth, J„ no one objecting to first meeting, 
and calling attention to fact that there was 
not a quorum, the election at that meeting was 
valid. At the hearing, Held by Williams J., 
that the election at the first meeting was 
invalid, and it appearing that the quorum at 



143. 



COMPANY. 



144 



tlie meeting of August 7th was made up by the 
inclusion of shareholders, representing certain 
shares which were alleged to have been for- 
feited and sold to such shareholders, but the 
sale of which the Court held to be a sham, 
there was no proper quorum at the meeting of 
August 7th, and that the lawful directors were 
those holding office prior to the first meeting 
of July 31st. Old Welshman's Beef Company v. 
Bucirde, 7 V.L.E. (E.,) 12, 115; 2 A.L.T., 129. 

2. Qualification. 

Non-Payment of Calls — Articles of Association.] — 
Under articles 72 and 73 of articles of asso- 
ciation of a company, it was provided that no 
person who was indebted to the company in 
respect of calls was eligible for the office of 
director, and that a director being so indebted 
at the day for payment, must vacate his office. 
W-, a. director, had given his promissory notes 
in payment of certain calls. Held that he was 
not qualified to be a director, nor in seeking 
re-election was he eligible for that office. 
Umphelby v. Wilkie, 5 A. J. E., 108. 

See also Reeves v. McCafferty,post column 153. 

3. Contracts and Profits made with and from 
Company. 

Quaere. — How far it would be open for a 
man, who is a, director, or a. person in any 
other fiduciary position, when there is a, for- 
feiture of a mining lease committed from any 
cause, to resign his office, and take proceedings 
for the purpose of availing himself of that 
forfeiture, and obtaining the property for his 
own benefit, to the exclusion of his cestius 
que trustent. Bemble, that such a course would 
not be open to him, and Held that a director, 
or any other person in a fiduciary position, 
who causes a forfeiture cannot avail himself of 
it. Smith v. Harrison (on appeal to the Privy 
Council,) 3 A.J.E., 44. 

See also Australasian Boot Company v. Thom- 
son, post column 145. 

Contract for Commission.] — II., the plaintiff 
and a, director of the defendant company, 
declared upon an agreement whereby the 
defendant company promised that, in consi- 
deration of H.'s guaranteeing a credit granted 
to the company by its bankers, they would 
give him a commission of 1 per cent, on the 
amount received from a contract ; there were 
also counts for work done, and money had and 
received. Held, on a demurrer to a plea on 
equitable grounds, that upon the pleadings it 
must be taken as an action to recover profits, 
and that such a contract was against public 
policy, H. endeavouring to recover from his 
co-partners a commission for having done that 
which it was his duty as a co-partner to do. 
Hardy v. Phcenix Foundry Company, 7 V, L. E. 
(L.,)211; 3A.L.T., 5. 

4. Personal Liability of. 

C. and M., two directors of a mining com- 
pany, by a letter to the company's bankers, 
notified that their manager had authority to 
draw cheques on account of the company. 
C. and M. did not form a majority of the 



directors as required by the Act of Incorpo- 
ration so as to bind the company. Although 
the company's account was at the time over- 
drawn, and that fact was known to C. and M., 
the bank honoured the manager's cheques on 
the authority so given them. The bank sued 
C. and M. for advances made on the faith of 
the letter. Held that there was an implied 
warranty on their part, and that they were 
personally liable to the bank. Judgment given 
to the extent of the sums overdrawn since the 
date of the letter. Colonial Bank v. Cherry, 
4W.W. &a'B. (L.,) 177. 

Affirmed on appeal to Privy Council. L.R., 3 
P.O., 24. 

Joint and Several Promissory Note.]— To a 
declaration upon a joint and several promissory 
note, given by the directors of a mining com- 
pany, the plea alleged that the note was given 
on behalf of the company, and set out the note 
in which were the words, "value received on 
account of the company." Held, on demurrer, 
that the directors had rendered themselves 
personally liable upon the note. M'Mullen v. 
O'Connor, 5 W.W.a'B. (L.,) 200. 

Company Illegal under "Companies Statute 
1864," Sec. 4 — Goods Sold.]— "Where a sale of 
goods was established to the defendants as 
directors and manager of a company, and the 
defendants pleaded that the company had not 
been properly registered,, and consisted of 
more than twenty members, and was, therefore, 
illegal under Sec. 4 of the " Companies Statute 
1864," Held, that the sale having, been estab- 
lished, and the Court not being seized of the 
necessary facts to decide that the partnership 
was illegal, the defendants ought not to be 
allowed to prove them, but should be held 
liable for the price of the goods. Masterton 
v. Blair, 2 V.E. (L ,) 19; 2 A.J.E., 16. 

For Wrongful Acts.] — The directors of a 
mining company, in contravention of a rule in 
the deed of Association, declared dividends, 
not entirely out of profits, but to a certain 
extent encroached upon capital in order to do 
so ; they also, in order to avoid sequestration 
under a pending equity suit, sold all the plant 
and property of the company at an undervalue 
owing to the haste of the sale — this sale being 
under a consent execution issued by a bank, to 
whom the company owed a bond fide debt, and 
the proceeds of the sale being divided between 
the company and the bank. They also sold 
the freehold land without the authority of the 
company in a general meeting ; they kept no 
proper account of gold washed or calls received, 
and the books and papers of account under 
their control were lost. On a suit by the 
official agent (the company being wound-up) 
to make them personally liable, Held (1) that 
the plaintiff had no remedy against the 
directors for the declaration of dividends, the 
company having none, as it was not shown to 
be fraudulent; (2) that the directors were 
responsible for any loss arising from the 
hasty sale ; (3) that the sale of freehold land 
was voidable, and the directors personally 
liable for the fair value of the land ; (4) that the 



145 



COMPANY. 



146 



directors were liable for loss arising from gold 
and calls received by the manager, as to which 
no accounts were kept; but (5) that the 
manager alone was responsible for the loss of 
the books and papers, there being no evidence 
to fix the directors with that loss. Beeves v. 
Croyle, 2 V.E. (E.,) 42; 2 A.J.E., 13. 

Retiring Directors.]— Where a bill was filed 
against the directors of a company, seeking to 
make them personally responsible for wrongful 
acts, and two of the directors had retired from 
the directory before the commission of any of the 
wrongful acts, except the payment of dividends 
out of an overdraft instead of out of profits ; 
but they had not retired jn the manner pre- 
scribed by the deed of association, the bill was 
dismissed against them with costs. Beeves v. 
Croyle, 2 V.K. (E.,) 42; 2 A.J.E , 13. 

For False Representation of Secretary.] — Where 
directors of an incorporated company were 
sued in an action for conspiracy, for loss result- 
ing from a false and fraudulent representation 
made by the secretary of the company by the 
procurement of the directors, Held that the 
directors were personally liable for the loss. 
Stevenson v. Bear, 2 V.E. (L.,) 220 ; 3 A.J.E., 
23. 

Breach of Trust— Managing Director Holding 
Bill of Sale over Plant, &c. — Sale Thereunder, and 
Purchase by Him in Name of Wife — Dealings with 
Company for his Own Advantage.] — Suit by com- 
pany against T., a managing director, impugn- 
ing certain acts of his in respect of the com- 
pany. T. held a bill of sale over plant, &c, 
for certain money advanced by him, and 
bought the plant for a sum less than the 
money covered in the name of his wife, who 
had no separate property. The company was 
a boot manufacturing company, and the 
defendant was a boot and shoe manufacturer, 
and tanner, and bought materials for the 
company from himself, and boots for himself 
from the company. Held that sale of plant 
under bill of sale was unwarranted and void, 
and accounts decreed of defendant's transac- 
tions with the company, the defendant to be 
charged at company's option as to goods 
bought by defendant from the company either 
with sum allowed or with true market value, 
or with the wholesale price produced from 
same upon a re-sale, and to be allowed at 
company's option as to goods bought by com- 
pany from defendant, either with sum charged 
or true market value, or price paid by defendant 
for same in case there was no alteration made 
in the process of manufacture by defendant. 
Australasian, Boot Company v. Thomson, 3 
A.J.E., 96. 

Instituting Proceedings Outside Scope of Authority 
— Injury to Shareholders Not to Company — Mali- 
cious Prosecution.] — See Thurling v. North 
British Company, post under Malicious Pbos- 

BCPTION. 

Liability under Sees. 24 and 25 of the " Companies 
Statute 1864 "—Default Must be Wilful.]— A con- 
viction against the directors and manager of a 
company for non-compliance with the provisions 



of Sec. 24 of the " Companies Statute 1864," in 
neglecting to forward a list of members, cannot, 
under Sec. 25 of the Act, be sustained unless 
such non-compliance were made wilfully and 
knowingly. Ex parte the Colonial Mutual Life 
Assurance Company in re Bishop, 4 V.L.E. 
(L.,) 287. See S.C., ante column 138, under 
Registration. 

"Companies Statute 1864," No. 190, Sees. 135, 
149 — Fraudulent Preference.] — In pursuance of a 
resolution of board of directors of a company, 
before winding-up, and to obtain accommoda- 
tion, A, B, and C, directors, endorsed a pro- 
missory note upon the understanding that it 
should be protected as a first charge upon the 
assets. There were no assets to meet it when 
due. Subsequently C, by cheque drawn by A 
and D, another director, upon the funds of the 
company, paid the note. A petition for wind- 
ing-up having been presented on preceding 
day (on which an order was afterwards made,) 
the liquidators applied, under Sec. 149 of Act 
No. 190, by summons, and Held, affirming 
Molesworth, J., that A, C, and D were liable to 
repay the amount of the cheque with interest. 
In re Provincial and Suburban Bank, 5 V.L.E. 
(E.,) 343; 1 A.L.T., 117. 

In Action of Deceit — Misrepresentation— Publica- 
tion of Balance-sheet Not Finally Adopted.] — 
Directors of a company, who ought to know 
that the company is in an insolvent condition, 
but who nevertheless allow a balance-sheet, 
representing the company to be in a sound 
condition, to be circulated, although such 
balance-sheet may not be finally adopted, 
may be liable in an action of .deceit at the 
suit of a person who has been induced by an 
agent of the company to purchase shares in it 
on the faith of the statements in such balance- 
sheet. It must,' however, be shown that they 
knew, or, but for culpable negligence, might 
have known, that the statements in the 
balance-sheet were false ; there must, in fact, 
be moral fraud. Paternoster v. Hachett, 6 
V.L.E. (L.,) 232 ; 2 - A.L.T., 24. 

In such a ease the directors are liable if they 
made the statements in the balance-sheet, 
being indifferent or reckless as to their truth 
or falsity, although they may not have actually 
known them to be false. Semble, that if they 
made the statements believing them to be 
true, but with no reasonable ground for such 
belief, they would be liable. S.C., 6 V.L.E. 
(L.,) 396 ; 2 A.L.T., 77. 

Payment of Manager's Costs of Litigation.] — 
Where directors advised and sanctioned the 
defence of a suit undertaken by the manager, 
in which litigation he incurred costs and paid 
him his costs out of the assets, Held that under 
the circumstances the manager was not a liti- 
gant on his own account, and that the directors 
were not personally liable for the costs so paid 
by them. Hardy v. Wilson, 9 V.L.E. (E.,) 62 ; 
4 A.L.T., 37. 

On Bills and Notes.] — Two directors of a com- 
pany signed a promissory note thus — "B.C.H., 
M.G., and J.W.G.T., Secretary," and the seal 



L47 



COMPANY. 



148 



>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. 
<L„) 144. 



Land Speculation — Partnership.]— A contract 
for partnership in land speculation is not within 
the " Statute of Frauds." Kilpatrick v. Mackay, 
4 VLB. (E.,) 28. 

Sale of Fixtures.]— A contract for the sale of 
fixtures is not within the 4th or 17th Section 
of the Statute, and does not require to be in 
writing. Malmsbury Confluence Gold Mining 
Company v. Tucker, 3 V.L.E. (L.,) 213. 

Substituted Agreement.] — Where an agreement 
is required to be in writing, any agreement in 
substitution thereof must be in writing also, 
but the parties may by subsequent agreement 
not in writing alter or vary the mode in which 
the contract is to be carried out. Welshman v. 
Robertson, 1 V.L.E. (L.,) 124. 

Agreement to Fay a Composition.] — A contract 
by Q. to pay creditors of C. a composition of 
10s. in the £ on all debts owing by C. is 
original and not collateral; it is not within the 
4th Sec. of the " Statute of Frauds," and need 
not be in writing. Gray v. Pearson, 3 V.L.E. 
(L.,) 81. 

Contract for Hiring for more than a Tear — Hot in 
Writing — Quantum Meruit.] — Clough v. London 
and Australian Agency Company, ante column 
148. 

(2) Forms and Conditions Required. 

Contract Partly by Telegrams, Partly by Corres- 
pondence.] — M'L., at Sandhurst, and S., at 
Castlemaine, contracted as to employment of 
the former by the latter as publisher of a daily 
newspaper as follows : — M'L. and S. met on 
September 8th, and, after a conference, settled 
upon the terms of M'L.'s remuneration, which 
was embodied in a memorandum signed by S. 
only, one of the terms being, " if price as per 
telegram be accepted." On the 9th, S. sent a 
signed telegram fixing the price, and in some 
respects modifying the terms in the memo- 
randum. M'L. on same day sent a signed tele- 
gram announcing he would send in his resig- 
nation to his old employers the next day, and 
he would "write by guard to-night," and on 
the same evening sent a letter referring to new 
terms, and ending, " This, unless contradicted 
by 10 a.m. on Wednesday, I shall consider your 
proposition, and tender my resignation.? On 
September 10th S. wrote to M'L. referring to 
M'L's. letter, and stating, " Drop me a tele- 
gram to-morrow stating day and hour when 
you will meet the ' runners.' " And on 
September 11th M'L. sent a signed telegram 
stating he would meet them on Saturday, 21st 
of September, at 4 p.m. Held that there was 
in these documents a sufficient contract to 
satisfy statute, the one referring to the others 
or some of them in such a way as without any 
parol evidence to connect the whole with 
each other. ITLevy v. Matthews, 2 W. <fc W. 
(L.,) 63. 

Signature.]— It is not necessary, in order to a 
compliance with the " Statute of Frauds," that 
the signature should be after or at the end of 
every part of a paper which it purports to 
cover. Gladstone v. Ball, 1 W. & W. (E„) 
277, 285, 286. 



195 



CONTRACT OR AGREEMENT. 



196 



Assignment of Contract — Aot No. 204, Sees. 107, 
108.] — E. entered into a contract with M. & Co. 
for the sale by B. of sewing machines, and this 
was assigned by M. & Co. to A. by an endorse- 
ment signed by M. & Co., but not by B., 
although E. had notice of it. There were 
letters in evidence from E. to A., treating the 
contract as binding between him and A., and 
in other respects the contract was acted upon. 
Held that the requirements of the Statute as 
to the assignment of the contract were satisfied. 
Rennick v. Riches, 9 V.L.E. (L.,) 366. 

As to Compliance with Statute in the Case of a 
Guarantee.] — M'Ewan v. Dynon, post under 
Guarantee. 

As to Signature by Auctioneer, or Entry by 
Auctioneer's Clerk.] — See cases ante column 71, 
and cases post under Sale. 

As to Compliance with Statute in Cases of Sale of 
Goods.] — See cases post under Sale. 

As to Compliance with Statute in Sales of Land.] — 
See post under Vendor and Purchaser. 

And see also cases under Specific Per- 
formance — Matters of Defence. 

(3) Part Performance. 

Verbal Contract that Purchase should be for 
Plaintiff's Benefit — Subsequent Dealings on Faith of 
■Contract.] — The plaintiffs were sons of an 
owner of station property. Their mother, after 
the father's death, married again and mort- 
'.gaged this property, and it was sold to pay the 
debt. The plaintiffs wishing to buy the pro- 
perty applied to B., an old friend, who made a 
verbal agreement with them that he would 
.advance the money for the purchase, charging 
them 10 per cent, on the sum advanced, and 
that, as security, the purchase should be made 
in B.'s name, the license of the stations and 
the stock should be assigned to him, and that, 
upon payment of money advanced and the 
interest thereon, he would convey and assign 
to plaintiffs. The plaintiffs remained on the 
stations and managed them, sold the stock, 
and credited B. with the receipts. Strict 
accounts were kept, and the evidence showed 
■ that the arrangement as acted upon was that 
the property and stock were treated as the 
plaintiffs', subject to their indebtedness toB., 
and that this indebtedness was discharged by 
plaintiffs' selling stock as their own, crediting 
B. with the proceeds, who applied them in 
reduction of his principal and. interest, B. 
acting throughout as » patient creditor. B. 
died, and a suit was brought by the plaintiffs 
against B.'s executors to enforce the contract, 
and seeking other relief in the nature of a 
redemption suit, by paying ofE principal and 
interest due to B.'s estate, and seeking assign- 
ments of licenses and stock. Held that, 
though there was no written evidence of the 
contract to satisfy the "Statute of Frauds," yet 
, the plaintiffs having given their time and 
labour and incurred liability as owners, and 
/having made large payments to B., as on llio 
footing of a contract, they were entitled to 
relief. O'Rourke v. Huon, 5 A.J.E., 87, 88. 



Agreement for Compromise.]— A bank's solicitor 
settled a draft agreement of compromise as to 
real estate between the bank and S. and M., 
and returned it to S. and M.'s solicitor with 
a letter saying, " The bank seal cannot be 
affixed before twelve o'clock on Monday. We 
shall be prepared to settle at two." The bank 
paid S. and M. some money upon the footing 
of the compromise ; and S. and M„ in conse- 
quence of the compromise, did not go to trial 
in an action of ejectment in which they were 
plaintiffs and the bank defendant. The bank 
having refused to carry out the compromise, 
Held that the settling the draft, and theabove 
letter, did not constitute an agreement binding 
under the " Statute of Frauds," and that there 
had. been no part performance by S. and 
M. entitling them to a specific performance 
of the agreement, by reason of the plaintiffs 
not going to trial in the action of ejectment 
in pursuance of an agreement then incomplete. 
Shiel v. The Colonial Bank of Australasia, 1 
V.E. (E.,) 40 ; 1 A.J.E., 30. 

As to Part Performance of Contracts of Sale 
of Goods— See Sale. 

As to Part Performance of Contracts of Sale 
of Land — See Vendor and Purchaser. 

And see generally Specific Performance. 

(d) Causes Vitiating. 

(1) Mistake — See Mistake. 

(2) Fraud— See Fraud. 

(e) Implied Contracts. 

To Take Goods Returned.] — Where the vendee 
returns goods to the carrier as not being in 
accordance with the contract, and the vendor 
attempts to obtain them from the carrier, but 
does not do so, there is no implied contract on 
the part of the vendee to take the goods. 
Bailliere v. Foster, 1 A.J.B., 77. 

On Sale of Goods — Delivery.] — In every bargain 
and sale of goods there is an implied contract 
to deliver the goods bargained and sold. 
Pettitv. Walker, 8 V.L.E. (L.,) 72 j 3 A.L.T., 
118, 120. 

See also as to implied mutuality. Hobart v. 
Victorian Woollen Company, ante column 186. 

II. Parties to Contracts. 

(1) Capacity of — See Drunkenness — Infant 
— Lunatic — Husband and Wife. 

2. Other Points. 

An agreement was made between W. " as 
authorised by J.S." and C, to the effect that in 
consideration of .£75 W. should transfer to C. 
all his interest in a certain hotel, licence, &c, 
and that the £15 should be paid as follows — 
£25 in cash, and £50 secured by a bill of sale 
over the furniture. W. sued C. for breach of 
contract in refusing to give a bill of s&le. 
Held that the words " as authorised by J.S." 
did not in anywise affect the liability of either 
party, it being clear that W. was to have the 



197 



CONTRACT OR AGREEMENT. 



198 



advantage of the contract, and that he was 
beneficially interested in it. Wood v. Cutts, 
5 V.L.E. (L.,) 275; 1 A.L.T., 40. 

III. The Matter of Contracts. 

(1) Consideration. 

Valuable Consideration — Purchaser for Value — 
"What is Value.] — Per Holroyd, J. Valuable 
consideration by a purchaser without notice 
must be something given or done, or some 
obligation entered into at the time, by which 
the circumstances of the person giving, doing, 
■or entering into the obligation are altered. 
In order for forbearance to sue being such a 
consideration, there must be an intention to 
sue and an abandonment of it. Where a 
policy of life assurance was transferred in 
consideration of a past debt, and under cir- 
cumstances which did not show great pressure 
by the purchasing creditors, Held not a 
'valuable consideration. Evans v. Stevenson, 
« V.L.E. (E„) 108, 120; 3 A.L.T., 95, 130. 

What is Sufficient.] — A declaration stated that 
in consideration that A. was then indebted to 
B. for money lent and for goods sold and 
delivered, it was agreed between A. and 
B., and A. then promised B., within twelve 
months t>o provide and ship cattle into the port 
of H., t<i be there sold and the proceeds there 
paid over by the agents of A. to B., in satis- 
faction and discharge of the money which A. 
owed as aforesaid to B., and stated a breach 
in that A. did not provide and ship cattle, &c. 
Demurrer, that (1) the consideration would 
.not support the promise ; (2) the considera- 
tion being executed, the promise should be 
such as the law would imply; (3) the law 
will imply no promise by a debtor that he will 
provide and ship cattle; (4) no promise by 
plaintiff was stated which would be a sufficient 
consideration for the promise of defendant; 
»(5) plaintiff did not by the agreement bind 
himself to forbear for any period of time. 
Demurrer allowed ; but leave given to amend. 
Murdoch v. Bell, 1 W. & W. (L.,) 51. 

Action on Cheque.] — In an action on a cheque 
which was dishonoured, the plaintiff alleged 
.that the cheque was given in consideration of a 
promise to sign an agreement. The plea 
■alleged that the plaintiff did not sign the 
^agreement. Held that the promise to sign 
was sufficient consideration for the cheque. 
Bule absolute to enter verdict for plaintiff. 
Fattorini v. Clemence, 9 V.L.E. (L.,) 51. 

."More or Less" — Plea of Acceptance of Lesser 
■Quantity.]— B. declared on a contract by which 
he agreed to buy, and defendant agreed to 
sell, 3000 ewes and 1500 wethers, "more or 
less." Defendant only tendered and delivered 
3563 sheep in all. Defendant pleaded an 
agreement that in consideration of the delivery 
■of the 3563, and the defendant giving an 
assurance that they had delivered all the sheep 
intended to be sold, the plaintiff would dispense 
with residue and pay for what he got, and the 
jilea averred the fulfilment of this agreement. 
Held that the plea was bad, there being no 
consideration to support plaintiff's promise. 
Erovrn to. White, 3 A. J.B., 40. 



Judgment Recoverable Upon an Uncertain Event 

Whether a Good Consideration.] — A. was indebted 
to F. in a sum of .£120, and F. promised to 
give A. time on consideration of A.'s assigning 
to him a judgment recovered against the Crown 
for £157. F. sued A. for the £120, and A. now 
sued F. for breach of the agreement to give time. 
Held that, although the judgment debt of the 
Crown was recovered on a contract which the 
Crown could not make, and that although the 
moneys to pay such judgment could not be so 
expended except under the certificate of the 
Audit Commissioners, and a vote by Parliament 
for the purpose, yet the judgment was valid, 
and a, valuable security, although depending 
upon an uncertain event, and the assignment 
of it was a good consideration to support the 
promise to give time. Alcoch v. Fergie, 4 
W. W. & a'B. (L.,) 285, 321. 

For facts, See S. C, under Ckown — Liabi- 
lities, under Act Mb. 241. 

Offer of Reward — Discovery by a Police Constable.] 
— McE., on March 4th, 1864, published a notice 
that, in February, a large quantity of goods 
were stolen from his branch store, and offering" 
J6100 reward to any person giving such infor- 
mation as would lead to the recovery of such 
goods and the conviction of the thieves. E., a 
police constable, arrested three persons on 
suspicion in February, and recovered some of 
the goods which had been in their possession, 
and gave the defendant, McE., information 
which led to his recovering the whole of the 
goods stolen. The three persons were convicted 
of larceny, and evidence was given as to 
identity of the goods. E. obtained a, verdict. 
On rule nisi for a nonsuit, Held that the 
plaintiff's information was the original and 
meritorious cause of the recovery of the goods, 
and the fact that the plaintiff had before the 
notice seized goods in the possession of sus- 
pected persons did not preclude him from 
receiving the reward, and that, on the primd 
facie evidence, all the persons connected with 
the theft had been convicted. Eule discharged. 
Robinson v. McEwan, 2 W.W. & a'B. (L„) 65. 

Promise to Pay Debt of Intestate.] — A promise 
in writing by an administrator absolutely to 
pay a debt of his intestate, with interest, one 
month after notice, whether such administrator 
were administrator or not at the time of the 
promise, discloses sufficient consideration, viz., 
a promise to forbear for one month. Wilson 
v. Zuth, 6 V.L.E. (L.,) 73; 1 A.L.T., 162. 

Uncertainty of.] — An agreement, by a married 
woman, that she should attend upon her aged 
father and mother as long as they lived, and 
provide them with necessary services, and in 
consideration thereof her father should, when 
requested, transfer to her his interest in certain 
land, was held void for uncertainty. Shiels v. 
Drysdale, 6 V.L.E. (E.,) 126; 2 A.L.T., 14. 

Void Ante-Nuptial Agreement.] — An ante- 
nuptial agreement, void under the "Statute 
of Frauds," can form no valuable consideration 
for the conveyance of land after the marriage. 
Crow v. Campbell, 10 V.L.E. (E.,) 186; 6 
A.L.T., 34. 



199 



See S.C., post under Trust and Trustee. 

Nudum Pactum.] — G. promised to give his 
overseer increased wages, not only for the 
future but for a past period during which the 
wages had been at a lower rate previously 
agreed upon. Held void as to the past period 
for want of consideration, being a promise to 
increase wages for services that had been 
actually performed before the promise was 
given. Anderson v. Glass, 5 W. TV. & a'B. 
(L.,) 152. 

Nudum Pactum, Acting on Terms of.] — Pre- 
viously to November, 1863, a piece of Crown 
land had been excepted from sale on the 
application of the Municipal Council, with the 
intention of its being used for the purpose of 
the water supply of the city. The Council 
then applied for a grant of the land for the 
purposes of a market, and according to the 
view taken by the Full Court a promise was in 
fact given by the Crown that the land should 
be granted for that purpose. The letter from 
the Council requesting the grant stated that 
the necessary steps to establish a market were 
then in progress. The Council entered upon 
the land and expended ,£800 in improvements. 
Held, by the Full Court, that if the establish- 
ment of the market were the consideration for 
the grant, that consideration had been well- 
nigh spent before the promise on which it was 
said to be rested had been made, and that 
there was no consideration for the promise, it 
being a nudum pactum, and that the Council 
unwisely affecting improvements on land which 
was not theirs by law, did not create a con- 
sideration or afford grounds from which its 
existence might be inferred. Mayor, fyc , of 
Melbourne v. the Queen, 4 W.W. & a'B. (E.,) 19. 

Promise by Crown — Nudum Pactum — Acting on 
Terms of.] — The Moderator of the Presbytery of 
Melbourne applied in May, 1852, to the Govern- 
ment for a grant of Crown land as a site for 
a, church, school-house, and manse. This appli- 
cation was answered, June, 1852, by the Colonial 
Secretary, stating the Governor's sanction to an 
appropriation of two acres of land for the 
purpose required. Trustees were appointed and 
approved of by the Goveruor-in-Council, 
August, 1853. The land was taken possession 
of and fenced, and a school-house erected on 
part of the land ; on other parts of the land 
nouses were erected and let, the rents being 
applied to church pvirposes ; but no church or 
manse was erected. No grant of the land was 
issued, and in November, 1868, the Board of 
Land and "Works advertised the land, other 
than that on which school-house was erected, 
for sale, under Sec. 40 of the " Land Act 1862." 
On petition and bill by the trustees against 
the Crown and Board of Land and Works 
seeking to restrain sale, Held, following the 
Mayor of Melbourne v. the Queen, that the 
promise of the land to the trustees for a par- 
ticular purpose, and the acts done upon the 
land, did not amount to a consideration 
sufficient to support a claim enforceable as a 
;contract, and bill and petition. , dismissed. 
MacPherson v. the Queen, 6 "W.W. & a'B. (E.,) 
131. 



CONTRACT OR AGREEMENT. 



20G 



(2) Promise — Condition Precedent. 
Action for Shares for which Note was Given.]— 
K. took shares in a company under an agree- 
ment which allowed the projectors to receive 
payment in cash or by promissory note. 
Attached to taking the shares were • certain 
promises as to the granting of land warrants. 
K. took shares and gave a promissory note for 
them, and subsequently sued for fu lfilme nt of 
the promises as to the land warrants. Held 
that it was not enough to give the note to 
become entitled to the shares; but that K. 
should have alleged and proved payment of 
it ; that the promises as to the land warrants 
could only be enforced when K. was entitled 
to the shares ; and that not being entitled to 
them he could not sue. Keith v. Polynesia 
Company, 1 A.J.B., 156. 

Price to be Fixed by Valuators— Failure to 
Appoint an Umpire.] — A written contract pro- 
vided for determination of price to be paid by 
valuators, who, before commencing valuation, 
were to appoint an umpire. The valuators 
omitted to appoint an umpire before they com- 
menced their valuation, and in their valuation 
they could not agree. The plaintiff brought 
an action to recover deposit of part of pur- 
chase money, and obtained a verdict. On rule 
nisi to set it aside, Held that the appointment 
of the umpire was a condition precedent, and 
that the agreement was broken. Bule nisi 
discharged. Finn v. Bay, 6 "W.W. & a'B. (L.,) 
13. 

Conditions Precedent.] — Where the drawer and 
acceptor of a bill agree that, if at maturity the 
acceptor pays a certain amount, the drawer 
will renew for the remainder, a full payment 
of the amount agreed upon to be paid, is a 
condition precedent to the acceptor's right to 
claim a renewal for the remainder, for there 
can be no remainder till the part to be paid is 
first deducted from the whole. Pachten v. 
Polite, 1 V.K. (L.,) 11 j 1 A.J.E., 26. 

Condition Precedent.] — Tributors agreed with 
a mining company to work a claim, and the 
agreement contained the following clause:— 
" The company will deduct 2 per cent, of the 
tributors' portion of gold in addition to royalty 
and wages, until such sum amounts to ,£100, 
such money to be retained by the company 
until the termination of the agreement, as 
security for any breakage or injury to the 
property of the company." Another clause 
required the tributors to keep the pumps, &a, 
in a proper state of repair, and to make good 
any damage that might occur $o the mine and 
machinery or plant during their term, and to 
hand them over to the company in good order 
and condition at the end of their agreement. 
The tributors worked out the ground and 
handed the claim over to the company, but did 
not repair the machinery, and sued for the 
.£100. Held that the making the repairs was a 
condition precedent to the repayment of the 
.£100, and plaintiffs nonsuited. Great Gulf 
Company v. Sutherland, 4 A.J.B., 158. 

Condition Precedent — Non-performance of— 
When Defendant Allowed to Plead.]— If the 



201 



CONTRACT OR AGREEMENT. 



202 



defendant has already recovered judgment 
against the plaintiff in respect of the non- 
performance of conditions precedent in a con- 
tract, he will not be allowed, in an action on 
the contract, to plead such non-performance. 
Withers v. Greenwood, 4 V.L.B. (L.,) 491. 

Condition Precedent — Sale of Ground Comprised 
in an Application for a Mining Lease — Readiness to 
Transfer.] — In an action on a contract for the 
sale of lands, which are comprised in an 
application for a mining lease, readiness and 
willingness to assign or transfer is not a con- 
current or precedent condition to the vendor's 
right to recover the money, at least in a Court 
of law. Cane v. Sinclair, 10 V.L.B. (L.,) 60 ; 5 
A.L.T., 186. 

Covenant to Pump a Mine "Constantly and 
Without Stoppage."] — For what was considered 
a sufficient compliance with a condition pre- 
cedent, see Stevens v. Craven, post under 
Covenant. 

And see Work and Labour. 

(3) Impossible Contracts. 

By Season of Act of God.] — See cases, ante 
column 8. 

Party Not Performing Guilty of a Breach.] — 
The general rule is that where the performance 
of a contract depends upon the existence of a 
given person or thing, a condition is implied 
that the impossibility arising from the perish- 
ing of the person or thing shall excuse the 
performance; but if a man chooses to enter 
into an agreement to sell a chattel or a piece of 
land belonging to a third person, there is no 
such inherent impossibility of his performing 
that contract, as to excuse him for not perform- 
ing it in the event of his not being able to 
induce the third person to part with the chattel 
or land. Rosel v. Adam, 2 V.L.B. (L.,) 170, 176. 

When, therefore, A. undertook to transfer to 
B. licences to mine on certain lands, and to do 
all necessary acts to obtain the consent of the 
President of the Board of Land and Works to 
the transfer, upon consideration of B. giving 
certain acceptances, and A. undertook to pay 
B. a certain sum if he did not transfer, &c, 
and A. allowed one of the licences to lapse, and 
it became, therefore, impossible to transfer it, 
&c, Held that A. had committed a breach of 
the contract, and that A. could recover the 
■sum agreed to be paid in default of the transfer, 
&c, even though E. had not paid the last of 
the acceptances, but that the amount of such 
acceptance should be deducted from the sum 
-recovered. Ibid. 



(4) Illegal Contracts. 

Illegal Condition — No Ground for Breach by Party 
Inserting.] — E. sued for breach of contract to 
let tolls to him, averring that defendants would 
not let him into possession of the toll-gate. 
Plea, that the contract contained a condition 
for illegal exemptions from tolls. Demurrer, 
that the illegality of one clause in the contract 
upon which both parties could have acted 



without violating any enactment, did not show 
any defence to the breach; and that though 
defendants had no right to insert the clause 
mentioned, yet they could not set up such 
illegal clause to defeat a claim founded on not 
giving possession underthe contract. Demurrer 
allowed. Ryan v. District Road Board of 
Broadford, 4 A.J.E., 110. 

Agreement to Pay Money to Jurors in Addition 
to their Proper Fees.] — An agreement by the 
parties to a cause to pay the jurors engaged 
in the trial, a remuneration in addition to the 
fees allowed them by law is illegal and void. 
Glass v. Martin, 3 W. W. &, a'B. (L.,) 117. 

Scrip Lent for Illegal Purpose — Action in Trover 
to Eecover it.] — In an action for the recovery of 
certain scrip which had been lent to the defen- 
dant, it appeared that it had been lent for the 
purpose of enabling defendant to vote at the 
meeting of the company. The Court allowed, 
on argument of a rule nisi, to enter a verdict 
for defendant, the record to be amended by 
adding the plea of illegality, and then made 
the rule absolute, the Court not assisting a 
person to recover his property when it has been 
lent or given for an illegal purpose. Cane v. 
Levey, 3 V.E. (L.,) 198; 3 A.J.E., 81. 

Against Public Policy.] — M., who was inspector 
of a bank, and was a partner with D. in certain 
station property, agreed in consideration of 
being released from the liabilities of the 
partnership to permit D., who was a customer 
of the bank, to discount such paper as he 
might place in the bank until the property 
could be sold at a profit, so long as he kept 
deposited in the bank certain securities suffi- 
cient to secure the amount of the discounts. 
The bank refused to discount, and the station 
was sold at a loss. D. sued M. for breach of 
contract, averring as an inducement for him to 
enter into the contract that M. was inspector. 
Held, per Barry and Fellows, J. J. (dissentiente 
Williams, J.) that the contract was against 
public policy, as offending against the prin- 
ciples of commercial morality which regulate 
the duty owing by the defendant to the bank — 
principles which apply alike to all persons 
holding positions of trust or under obligation 
similar in character to their superiors. 
Degraves v. McMullen, 5 A.J.E., 8. 

Courts Will Not Assist Parties to.] — Courts will 
not assist parties to illegal transactions, except 
in certain cases; and Semble not even then, 
where property has been conveyed, and it is 
sought to obtain an order for its re-conveyance 
on the ground that such conveyance originated 
in an illegal dealing. McCahill v. Senty, 4 
V.L.E. (E.,) 68. 

Property Acquired on an Illegal Consideration.] 
— Property acquired on an immoral and illegal 
consideration, as of cohabitation, cannot be 
recovered by volunteers under one party to the 
illegality from the other party who has the 
legal estate, the position of the possessor, as 
between them, being the better. Murdoch v. 
Aherne, 4 V.L.E. (E.,) 244. 



203 



CONTRACT OR AGREEMENT. 



204 



Immoral Consideration— How Far a Stranger t which they were to confine themselves, and 



the Contract may Take Advantage of.] — W. let 
certain premises to P. for immoral purposes. 
ST. let a piano on hire to P. P.'s rent being in 
arrear, W. distrained upon the piano, and BT. 
then sued W. for the conversion of the piano. 
The County Court Judge refused a nonsuit, on 
the ground that BT. being a stranger to the 
contract between W. and P., could not take 
advantage of the immoral nature of the contract. 
Held, on appeal, that BT. could. Appeal allowed, 
verdict entered for plaintiff. Nicholson v. West, 
5 V.L.E. (L.,) 80. 



Gaming and 
Wagering. 



Wagering.] — See Gaming and 



And see under Land Acts — Mining. 

(5) In Restraint of Trade. 

What is — Combination Contrary to Public Policy] 
— Several butchers agreed under seal that 
they would not send or cause to be sent any 
meat for sale in the Melbourne Market, and 
that a company should be formed for the pur- 
pose of leasing land for the erection of suitable 
buildings in which to sell meat. Held that 
this was an agreement in restraint of trade, to 
benefit the parties, but to injure the public, 
that it was contrary to public policy, and 
unenforceable, although the consideration was 
ample. Birtwistle v. Hann, 4 V.L.E. (L.,) 153. 

Eeasonableness of Restraint.] — E. sold E. his 
business as » carrier, E. covenanting for 10 
years not to carry on such business in Mel- 
bourne, Ballarat, Echuca, or other specified 
places, or any place within the Colonies of 
Victoria and New South Wales, where E. might 
be for the time being or within Bix months 
next preceding such time have been carrying 
it on. Breach, that E. did carry on such 
business within the time at Melbourne, Bal- 
larat, and Echuca. Held that the consideration 
must be limited to the towns named in the 
breach, and that a restraint not to carry on 
business in those places so named was 
reasonable and not void as being too large, 
and as in general restraint of trade. Robertson 

. English, 4 W. W. & a'B. (L.,) 238. 

By a memorandum in writing, E., in selling 
to McL. his business and stock-in-trade in 
Collingwood, agreed not to start in the same 
line of business within nine miles of Colling- 
wood. Held that the limit was a reasonable 
one. McLeod v. Roberts, 3 V.B. (L.,) 145 ; 3 
A.J.E., 97. 

Sale of Goodwill.] — In a contract for the sale 
of the goodwill of a business, a provision which 
restrained A. from carrying on a butcher's 
business within one and a-half miles from a 
certain shop for an unlimited time was held 
reasonable. Goss v. Riohardson, 3 V.L.E. (L.,) 
264. 

Contract for Stevedoring — Eeasonableness of 
Restraint.] — "Where the object of an agreement 
is to parcel out the stevedoring business of a 
port amongst the parties to it, by which certain 
ships were allotted to each of the parties to 



they stipulated not to compete with each other, 
Held by the Privy Council, affirming the judg- 
ment of the Supreme Court, that such agree- 
ment was not invalid if carried into effect by 
provisions reasonably necessary for the purpose, 
though thereby a partial restraint upon the 
power of the parties to exercise their trade 
might be created. Locke v. Collins, 3 V.L.B. 
(L.,) 40. S.C^ sub. nam. Collins v. Locke, L.E., 
4 App. Cas., 674. 

Per Privy Council — Agreements in restraint 
of trade are against public policy and void 
unless the restraint is partial and reasonable 
in relation to the objects of the contract, and 
also unless they are made upon a real and 
bona fide consideration. A provision that, if a 
particular merchant named should refuse to 
allow the person entitled to it under the agree- 
ment to stevedore his ship, and should require 
one of the other parties to do it, such party so 
required should give an equivalent to the party 
losing the stevedoring, is not unreasonable, 
either as regards the party entitled or the 
merchant. But a provision that, in the case 
of ships passing out of the hands of merchants 
named into the hands of others refusing to- 
employ the person entitled under the agree- 
ment, all the parties thereto should be deprived 
of the work is unreasonable and cannot be 
justified. Collins v. Locke, L.E., 4 App. Cas., 
674. 



Proviso in Eestraint of Trade when Inseparable.]— 
An agreement in writing was as follows:— 
" I., E. J. doth hereby sell to you W. H. one 
butcher's shop, two-roomed cottage, two yards 
and boiler, also tools, &c, situated at Stringer's 
Creek, for the Sum of ninety pounds (,£90 0s. 0d.,) 
the half to be paid in cash, and the balance, viz., 
forty-five pounds (.£45,) in four months from 
date. And I., E. J., doth hereby agree not to 
start in business on Stringer's Creek in opposi- 
tion to him. E. J. Witness— W. E." Held- 
void on the ground that the proviso in 
italics was part of the contract and could not 
be rejected, and being in general restraint of 
trade rendered the whole agreement void. Hoi- 
laghan v. Jones, 3 W.W. & a'B. (L.,) 37. 



IV. DISCHARGE AND BREACH Or CONTRACT. 

When Justified— Partial Failure to Perform.]— 
A partial failure by one party to perform a 
contract, where there is no absolute inability 
or refusal on his part to continue the contract, 
does not justify a rescission of it by the other 
party. Prendergast v. Lee, 6 V.L.E. (L.,) 411. 



L. agreed to take meat from P. for twelve 
months, and it was also agreed that P. should 
give L. a bonus or present of .£10, which was 
paid. P. did not supply L. regularly with 
meat, and L. lost some customers in conse- 
quence of the irregularity. L. therefore- 
rescinded the contract, though P. had heard 
no complaints and was willing to continue the 
supply of meat. Held that L. was not justified 
in rescinding the agreement. Ibid. 



CONVEYANCE. 



205 



Contract Terminated by Third Person— Authority 
—Onus Probandi.] — Where a contract is termi- 
nated hy a third person, the onus lies on the 
plaintiff to shew the authority, or facte from 
which the authority might be presumed, of 
such third party. Norton v. Williamson, 6 
A.L.T.. 101. 

"What Amounts to a Breach.] — See Bruce v. the 
Queen, post under Crown — Liabilities, &c. 

Count for Money Had and Received — Breach of 
Contract — Failure of Consideration.]— A tender 
by M. for the lease of a turnpike gate was 
accepted by the Government, and M. paid' a 
deposit by way of rent in advance. Before he 
entered into possession the name of the gate 
was changed, and the gate itself moved four 
miles in situation. M. took possession, paid 
the rent in advance for three months, but not 
for the fourth, and, without making any com- 
plaint of the inferior value of the gate so 
moved, kept possession until the 23rd of the 
fourth month, when he was evicted for rent 
due and payable in advance for the fourth 
month. His receipts for the fourth month 
were less by ,£75 than his original deposit ; he 
therefore sued the Government for damages, 
alleging for breach of the demise, that they 
never gave him the gate actually demised, and 
he also sued them on the money count for his 
deposit, alleging a total failure of consideration. 
M. recovered a verdict generally, with damages 
one shilling ; but leave was given to move for 
an equitable verdict. On the motion, Held 
that M. could not recover his deposit on the 
money count as for a total failure of consi- 
deration, the parties not being able to be 
replaced in statu quo. The Court, however, 
offered to make the rule absolute without 
costs, to increase the damages on the first 
count, but the defendant refusing, a, new trial 
was granted, costs to abide the event. Martin 
■o. Board of Land and Works, 1 W. & W. (L.,) 
123. 

Damage for Breach — Maintenance Money for 
Detention as Witness.] — In assessing damages 
for breach of contract the jury are not at liberty 
to include in such damages as a separate item 
the plaintiff's maintenance as a witness during 
the time he has been awaiting the trial. 
Norton v. Williamson, 6 A.L.T., 128. 

Damages for Breach.] — Ton v. Tresnan, ante 
column 191. 

And see cases post under Damages. 



206 



CONTRACTOR. 

See NEGLIGENCE — "WAY— WORK and 
LABOUR. 



CONTRIBUTORY. 

See COMPANY. 



CONVERSION. 

When Effected.] — Where imperfect instruc- 
tions, executed as and purporting to be a will, 
but which were held by the Court to be 
effectual only in passing the income, contained 
directions for sale and conversion without any 
directions as to distribution of proceeds, Held 
that the direction for sale did not work a con- 
version, so as to change the nature of the pro- 
perty, which, as to the corpus, was distributable 
as upon intestacy. Bead v. Bead, 5 V.L.R. 
(E.,) 212. 

Contract for Sale— Default of Purchaser.] — The 
right as between real and personal representa- 
tives of the vendor depends upon there being a 
valid contract at the time of his death; if there is 
a valid contract then that is in Equity con- 
sidered to be done which is contracted to be 
done. If, however, the property being sold, the 
title afterwards fails, the effect of the con- 
version ceases. Where the purchaser, after re- 
maining in possession for some time, threw up 
his contract owing to his inability to pay, Held 
that that had not the same effect as a defect in 
title, and that there was a conversion and 
decree made for a. vesting order vesting the 
legal estate in the executors of the deceased 
intestate vendor as against the universal 
devisees of his heir-at-law. Flower v. Wilson 
3 W.W. & a'B. (E.,) 84. 

Tinder Act No. 230 ("Intestate's Seal Estate 
Act") — Application for Administration Required.]— 
The Act No. 230 does not of itself convert real 
into personal estate, but requires an applica- 
tion for administration to be made, which, 
when granted, has a retrospective effect to 
the death of tbe intestate. Until then the 
property continues real estate with all the 
incidents of real estate. English v. English, 
3 W.W. & a'B. (E.,) 170. 



CONVEYANCE. 



Of Personal Property^]— Bee Bill of Sale and 
Assignment. 

Of Lands Tenements and Hereditaments.] — See 
Deed. 



207 



COPYRIGHT. 



208 



CONVEYANCER. 



Admission of — Fees.]; — The Court has no power 
to entertain a petition for remission of any 
part of the fees payable before examination of 
candidates for admission as conveyancers, &c, 
under the " Supreme Court Rules 1884," the fees 
being payable by Act of Parliament. In re 
Scott, 1 W. & W. (L.,) 7. 



CONVICTION. 

See CRIMINAL LAW— JUSTICE OF THE 
PEACE. 



COPIES OP DOCUMENTS. 

See EVIDENCE. 



COPYRIGHT. 

1. Paintings, Photographs, Engravings and 

Designs, column 207. 

2. Telegrams, column 208. 

3. Books, column 209. 

1. Paintings, Photoghaphs, Engravings, 
and Designs. 

Photographs— " Copyright Act 1869," Ho. 350, 
Sees. 86, (38.] — N. summoned P. for selling a 
colourable imitation of a photograph duly 
registered by the proprietor N., and without 
his consent. Held under Sec. 36 of the Act, 
that the selling of a copy did not deprive the 
registered proprietor of the copyright ; that the 
Section protects only photos taken, not through 
the intervention of a negative, and does not 
apply to those taken through such intervention ; 
that the description of a photograph, " Collins- 
street, looking East," is a sufficient description 
for the purposes of registration under Sec. 38. 
Decision of justices fining P. affirmed. Pyrke 
v. Nettleton, 3 V.E. (L.,) 6; 3 A.J.R., 27. 

Person Aggrieved — " Copyright Act 1869," Sec. 
60.] — A "person aggrieved" within the mean- 
ing of See. 50 of the " Copyright Act 1869," 
applying to expunge an entry of copyright in 
an engraving, &c, must have some substantial 
objection, and one going to the merits of the 
registered proprietor's title, or he must show 
that the entry is inconsistent with some right 
that he sets up in himself or in some other 
perBon, or that the entry would really interfere 
with some intended action on his part. In re 
Martin, ex parte The Equitable Life Assurance 
Society, 10 V.L.R. (L.,) 196; 6 A.L.T,, 31, 61. 



A life assurance society starting business in 
Victoria made an application to expunge the 
entry of the name of the manager of a si milar 
society, which had been for some time carrying 
on business in Victoria, as the proprietor of 
the copyright in an engraving. The applicants 
proved that for several years prior to their 
registration in Victoria they had made use_ of 
a design very closely resembling that which 
was registered, and there was no direct evidence 
as to the originality or otherwise of either 
design. Held that the applicants were persons 
aggrieved, that the design of the registered 
engraving was probably copied from theirs, 
and order made expunging entry. Ibid. 

Copyright in Engraving — Who may Apply to 
Expunge Entry of— Person Aggrieved—" Copyright 
Act 1869," Sees. 36, 50.]— The entry of a copy- 
right in an engraving, under Sec. 36 of the 
" Copyright Act 1869," may be expunged on 
the application of the person aggrieved, under 
Sec. 50, if such engraving be not new and 
original. Ibid. 

"Original" Engraving, What is.]— An engrav- 
ing which is a mere reproduction of another 
is not " original." Ibid. 

Design— "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, 
so as to be capable of registration. Begina v. 
Radke, ex parte Dyke, 8 V.L.E. (L.,) 23 j post 
under Patent. 

2. Telegrams. 

Copyright of Newspaper Proprietors in— Injunc- 
tion to Restrain Infringement.] — Certain news- 
paper proprietors entered into a contract with 
a telegraph company for the supply of news. 
By agreement with two other papers the pro- 
prietors of these journals were allowed to 
publish these telegrams simultaneously with the 
original journal. Defendant, proprietor of an 
evening journal at Geelong, copied the tele- 
grams from one of the two journals who 
published under the agreement, and published 
them in his paper. Upon motion to restrain 
him from so doing, Held that the telegrams 
were copyright; that the publication by 
defendant was a sufficient injury to justify the 
interference of a Court of Equity, and injunc- 
tion granted to restrain defendant from print- 
ing or publishing telegrams supplied or 
published by the plaintiffs. Wilson v. Row- 
croft, 4 A.J.K., 57. 

'* Copyright Act" 350, Sec. 24— Newspaper— Tele- 
grams from England— Injunction.] — Bill by pro- 
prietors of Argus newspaper against defendant, 
proprietor of the Gippsland Mercury, from 
publishing the contents of telegrams daily 
received by former and published in Argus. 
Plaintiff's paper was registered under Act No. 
350, which expressly extends to newspapers, 
Sec. 24. Bill alleged that the intelligence 
published in the Argus as telegrams from Eng- 
land appeared in defendant's paper before the 
Argus reached Gippsland so nearly in the same 
words that it must be inferred that the Argus 



209 



CORPORATION. 



210 



intelligence was copied into telegrams sent to 
Gippsland, and then inserted in defendant's 
paper. Case made by defendant was that 
news contained in Argus became a matter of 
common talk, and was sent .by defendant's 
Melbourne correspondent as such. Held that the 
odour of defendant's publication was soperf ectly 
identical with that of plaintiffs' that it was clear 
it was taken from the plaintiffs' publication ; 
that right of copyright extends to results of 
inquiries as to facts which writer reduces to 
order, such being property from to-day acquired 
which is habitually infringed as soon as 
acquired with such speed that no effectual 
remedy could be found after publication. 
Ordered that defendant be restrained from 
publishing as news from England, or in any 
other form, in the Gippsland Mercury or 
otherwise, any copy or colourable alteration or 
adaptation in the nature of copies of any tele- 
grams from England received and published 
by the plaintiffs. Wilson v. Luke, 1 V.L.E. 
(E.,) 127. 

3. Books. 

"Book"— Acts No. 5 and 6 Vic, Cap. 45.]— In a suit 
for an injunction to restrain the defendant from 
infringing the plaintiff's copyright in a "book" 
consisting of plans and diagrams with instruc- 
tions for their use printed on them, for an im- 
proved method of cutting out ladies' and 
children's dresses, it appeared that although 
the defendant's system was superior to that of 
the plaintiff, nevertheless the defendant had 
copied the plaintiff's and had incorporated a 
great part of the latter's book in his. Held 
that the case should be dealt with as a mere 
subject of copyright, that as such the defendant 
was virtually stealing the plaintiffs book, and 
interim injunction granted. Hanbury v. Dums- 
day, 10 V.L.E. (E.,) 172. 



CORONER. 

A coroner's court is a Court of record in 
Victoria, and the Coroner has, under Sec. 4 of 
the " Coroner's Act," No. 253, and Sec. 39 of 
the Act No. 267, power to commit for contempt 
for a period of 48 hours. ' Casey v. Candler, 
5 A. J.E., 179 ; for facts see S.C., post under 
Trespass. 



CORPORATION. 

(a) Municipal Coepobations (except Boad 
Boards, as to which see Local Govern- 
ment.) 
I. Eights and Duties. 

(1) Powers and Liabilities. 

!a) Generally, column 210. 
b) In respect of Making and Man- 
aging Streets, Roads, Drams, 
Waterworks, $[c., column 215. 



(2) Bye-Laws, column 216. 

S3) Application of Funds, column 218. 
4) Rates, column 219. 
II. Election of Members. 

il) Voters, column 220. 
2) Nomination and Election, column 
221. 

(3) Ballot and Voting Papers, column 
224. 

(4) Disqualification, Removal and Re- 
tirement from Office of Persons 
Elected, column 225. 

(5) Bribery, column 228. 

(b) Coepobations other than Municipal, 
column 229. 

(c) ' Liability op Coepobations on Con- 
tracts AND OTHEBWISE. 

(1) Contracts and Resolutions. 
(a) Generally, column 229. 

(6) When Sealing Necessary, col- 
umn 229. 

(c) When Sealing Unnecessary, 
column 230. 

(2) In other cases, column 231. 

(d) Pboceedings By and Against Cobpo- 
bations, column 232. 

Statutes. 

"Municipal Institutions Act," 18 Vic, No. 
15, and " Amending Acts," 18 Vic, No. 32, and 
19 Vic, No. 16, repealed by 24 Vic, No. 114. 

24 Vic, No. 110 (Improvement of Fitzroy 
Ward.) 

24 Vic, No. 114 (Municipal Institutions,) 
repealed by 27 Vic, 184. 

" Shires Statute 1863," No. 176, repealed by 
Act No. 358. 

"Municipal Institutions Act 1863," No. 184, 
repealed by Act No. 359. 

"Shires Statute 1869," No. 358, and "Amend- 
ing Acts," Nos. 387 and 401, repealed by Act 
No. 506. 

"Boroughs Statute 1869," No. 359, and 
"Amending Act," No. 373 repealed by Act 
No. 506. 

"Local Government Act 1874," No. 506, and 
various Amending Acts : 1876 — Nos. 553 and 
564 (Dancing Saloons;) 1877— No. 573; 1881— 
No. 687 (Eate Surplus,) No. 688 (Waterworks,) 
No. 711 (Sinking Fund;) 1883— No. 756, No. 
762 (Change of Name.) 

(a) Municipal Cobpoeations. 

I. Eights and Duties op. 

(1) Powers and Liabilities of. 

(a) Generally. 

Accepting Contract — Estimate.]— Before a cor- 
poration can accept a contract, an estimate of 
the cost of the proposed work should be pre- 
pared, and the rate made on that basis, except 
in cases of emergency or when the cost is small. 
Attorney-General v. Shire of Wimmera, 6 V.L.B. 
(E.,) 24; 1 A.L.T., 125 [following Attorney- 
General v. Mayor of St. Kilda, 6 W.W. & a'B. 
(E.,) 141, and Attorney-General v. Shire of 
Kyneton, 1 V.L.E. (E.,) 269.] 



211 



CORPORATION. 



212 



IPor facts of cases Attorney-General v. Mayor 
cf St. Kilda and Attorney-General v. Shire of 
Kyneton, see post columns 218, 219. 

In Contracting — "Local Government Act. 1874," 
Sec. 169.]— Sec. 169 of the "Local Government 
Act 1874," prescribing the form in which con- 
tracts are to be made by a municipal council, 
though in form permissive is really mandatory. 
Shire of Leigh v. Shire of Hampden, 8 V.L.E. 
(L.,) 370. 

Powers in Accepting Tenders for Contract — 
"Boroughs Statute 1869," No. 359, Sees. 35, 37, 
39, 182, 140 — Vote of Interested Councillors — 
Accepting Highest Tender.] — A municipal council 
called for tenders for lighting the streets, and 
two companies put in tenders, one company, 
which had previously had the contract, at £5, 
the other, of which three of the councillors 
were shareholders and directors, at £7 5s. 
The council, by a majority of six to three, 
resolved to accept the higher tender. Of the 
majority three were the Councillors who held 
shares in the successful company. An infor- 
mation was brought against the council, and 
an injunction prayed for seeking to restrain 
them from affixing the corporate seal to the 
contract. Five of the defendants, who had 
TOted for the resolution, demurred on the 
ground that it did not appear that they or any 
of them were incapacitated from voting as in 
the bill alleged, or that by reason of having 
so voted, the proceedings were null and void. 
Upon the motion for injunction, Held, per 
Molesworth, J., that the councillors who were 
shareholders committed a breach of the 122nd 
Section of Act No. 359, and subjected them- 
selves to the penalty; but that their so doing 
did not avoid the corporate resolution; that 
the council were not warranted in sacrificing 
the interests of the corporation for the alleged 
good of the locality, and the injunction was 
granted until further orders. Upon the de- 
murrer, Held, per Molesworth, J., that the bill 
sufficiently alleged facts impeaching the pro- 
priety of the council's acts, and demurrer 
overruled. Against the decision upon the 
demurrer the demurring defendants appealed, 
and pending the appeal the information was 
set down for hearing ; and, upon the hearing, 
Held, per Molesworth, J., that the acceptance 
of the highest tender is within the discre- 
tionary power of a municipal council, though 
several councillors be interested in the con- 
tract, if the motive for accepting the tender be 
the ultimate benefit of the corporation; that 
the Court ought not to interfere with their 
discretion, and information dismissed with 
costs. Upon appeal, the Full Court upheld the 
decision overruling the demurrer, but reversed 
that dismissing the information upon the 
grounds that if Sec. 122 applied, it avoided 
the resolution to accept the tender; that the 
proviso of Sec. 39, validating the acts of an 
incapacitated councillor, relates to qualification 
and not to being interested, and that the reso- 
lution to enter into the contract was avoided 
by the interested councillors having voted upon 
it. Attorney- General v. Mayor of Emerald 
Sill, 4 A.J.E., 14, 32, 48, 104. On appeal, 
Ibid, 135. 



[Note.— Sec. 56 of Act No. 506 follows Sec 
39 of Act No. 359, and Sec. 152 of Act No. 506- 
follows Sec. 122 of Act No. 359.] 

Power to Contract — Act No. 506, Sec. 169 — Con- 
tract for Construction of a Bridge.] — Contracts by 
municipal corporations must be made in one of 
the modes or forms prescribed by Act No. 506 
(" Local Government Act 1874,") and the pro- 
visions of the Act being for the protection of 
the ratepayers are mandatory. Mayor of Rich- 
mond v. Edwards, 9 V.L.E. (L.,) 348 ; 5 
A.L.T., 118. 

Liability of Corporation on Contract Entered into 
by One Council at Request of Other — Ratification.] — 
Three municipal councils agreed to join in the 
erection of a bridge at their common boundary. 
One of the councils sent » member to the 
meeting of one of the other councils with a 
letter written by the secretary with its 
authority, stating that such member had full 
authority to represent such council at the 
meeting of the other council. The latter 
council entered into a contract on the joint 
behalf of the two councils, with the concur- 
rence of the member sent by the former 
council. Held that the former council was 
bound by the contract ; that the council which, 
by agreement, had entered into the contract 
and superintended the execution thereof, had 
necessarily a reasonable discretion as to details 
in carrying it out, dealing with unlooked for 
difficulties, allowing extras, and in remitting 
penalties under the contract; and that the 
first-mentioned council waived any necessity for 
consulting it further about subsidiary con- 
tracts which might not perhaps have • been 
thought to come within the authority given to 
approve the main contract by subsequently 
paying a part of its share of the expense of 
such subsidiary contracts. Shire of Leigh v. 
Shire of Hampden, 8 V.L.E. (L.,) 370. 

Under " Local Government Act 1874," Sec. 392.] 
— The obligation imposed by Sec. 392 of the 
" Local Government Act 1874," upon adjoining 
municipalities to unite in building and main- 
taining a bridge at their common boundary, 
confers upon them, by necessary implication, 
a power to unite for the purpose by voluntary 
agreement in either of the modes prescribed by 
Sec. 169, without the formal preliminaries, 
required to start the process of compulsion. 
Ibid, p. 379. 

"Local Government Act 1874," Sec. 394 — 
Agreement.] — The agreement between two shire 
corporations, for the carrying out of works 
within the boundary of two shires, must be a 
definite and formal agreement clearly binding 
on the parties. Semble, a mere acquiescence 
by one shire in the acts of the other is insuffi- 
cient. Attorney-General v. Shire of Echuca, 4 
V.L.E. (E„) 4. 

Statutory Authority to do an Act — How far 
Private Eights may be Interfered with.] — King v. 
Mayor of Kew, post under Statutes — Construc- 
tion and Interpretation — General Eules. 



213 



CORPORATION. 



214 



Council Suing to Restrain a Nuisance— Eight to 
Sue — " Municipal Corporations Act 1868."] — A 
municipal corporation, established under the 
" Municipal Corporations Act 1863," does 
not represent the interests of the popula- 
tion of the municipality, so as to be entitled 
to_ maintain a suit to abate a nuisance 
existing in the municipality, but not shown 
to be upon soil the property of the cor- 
poration. Such a corporation has no right 
to_ institute, on behalf of the public or any 
private individual, proceedings to restrain the 
continuance of such a nuisance. The Mayor of 
Ballarat East v. Smith, 1 W.W. & a'B. (E.,) 52. 

Powers of City Council under the " City of Mel- 
bourne Building Act," No. 39.]— Begina v. Call, 
ex parte Seamark. See post under Metro- 
polis. 

Charging for Use of Land Reserved for Public 
Purposes.] — Semhle, that where Crown land 
within a municipality has been reserved for 
recreative and gymnastic purposes, and the 
municipal council has incurred expense about 
such land in order to assist its use for public 
exercises, the council may lawfully remunerate 
themselves by charging particular companies 
for its partial use ; and such companies, 
again, having incurred expense for particular 
amusements or games, might lawfully charge 
an admission price to pay for that expense. 
United Sir William Son Company v. Koh-i-nor 
Company, 3 W.W. & a'B. (M.,) 63, 75. 

Liabilities, Adjustment of on Separation of 
Borough — " Local Government Act 1874," Sees. 530, 
531.] — Where the Governor has, by an Order 
in Council, under Sec. 530 of the "Local 
Government Act 1874," severed one portion of a 
municipality and constituted it as a new one, 
the proper construction to be put upon Sec. 531 
of the Act is that no adjustment of existing 
liabilities between the original municipalities 
and the new one so constituted can be made by 
the same order, but such adjustment must be 
made by a separate order after hearing both 
parties. Roebuck v. Mayor of Geelong West, 
2 V.L.E. (L.,) 189. 

Investigation of Accounts at Annual Meeting — 
Ratepayers — "Local Government Act 1874," Sec. 
302.]— Under Sec. 202 of the "Local Govern- 
ment Act 1874," ratepayers, though they have 
a right to be present, have no right to be heard 
before the Shire council at a meeting of such 
council for the investigation of accounts. 
Rijppon v. Dennis, 6 V.L.E. (L.,) 81 ; 1 A.L.T., 
164. 

Liability for Trespass of Revenue Inspector — 
" Wines, Beer, and Spirits Sale Statute," No. 827, 
Sec. 67.] — E. had been appointed by the Corpo- 
ration of Melbourne to be inspector of licenses 
under Act No. 227. E. had received no 
instructions further than to prosecute in cases of 
default of license. E . laid an information against 
H., and obtained a warrant to a constable 
to seize beer, which it afterwards appeared 
.did not belong to H. H. sued the Corporation 
in trespass. Held that E. acted beyond the 



scope of his authority, and that there being 
no ratification by the Corporation, they were 
not liable. Henderson v. the Mayor of Mel- 
bourne, 5 A. J.K., 134. 

Appointment and Removal of Officers — Town 
Clerk — Appointment.] — The town clerk of a 
municipality established under the Act 18 
Vic, No. 15, being an officer whose services are> 
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 



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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. 
<L.,) 20. 

Bond as Security— Act No. 345, Sees. 18, 120.]— 
A bond as security for the prosecution of the 
appeal may be approved by the assistant 
registrar under Sec. 18j and if it be made 
■simply for carrying out such order as the 



Supreme Court shall make or for payment of 
costs on dismissal of the appeal, it is in- 
sufficient, it should provide for the prosecution 
of the appeal ; but the Court refused to make 
absolute a rule for striking out the appeal case 
where neither the bond itself nor a copy were 
produced. Aarons v. Lewis, 3 V.L.E. (L.,) 
317. 

Money Deposited on Appeal — May be Paid Over 
Without Order.] — Jensen v. Hagan, ante column 
266. 

(4) Special Case — Form Settling and 
Delivery of. 

Statement of Case — Referring Back to County 
Court.] — The Supreme Court has power to refer 
a case, which has been stated on appeal from 
the County Court, back to the County Court to 
be rectified. The County Court Judge is, how- 
ever, not to be directed to amend the case, but 
only to see if the evidence has been properly 
set out, and, if he thinks fit, to make any altera- 
tion he may choose. M'Mullen v. Fraser, 2 
A.J.E., 117. 

Form of Case — Judge's Notes of Evidence.] — 
Where a Judge signed a case for appeal " I, 
James F. Nolan," instead of " I, the Judge 
who tried the case," as directed by the rules, 
the case was remitted to be properly signed. 
Guy v. Pierce, 3 A. J.E., 39. 

Discrepancy Between Case and Judge's Notes of 
Evidence. ] — Every presumption should be made 
to reconcile the case as stated by the Judge 
with his notes of evidence. Davies v. Breading, 
7 V.L.E. (L.,) 107; 2 A.L.T., 128. 

Setting Out Evidence in the Case.] — Where 
the evidence required by Sec. 120 was not 
included in the case, but a note of the evidence 
was placed before the Supreme Court by 
consent which contained only an incomplete 
and inaccurate fragmentjof the evidence, Held 
(per Higmbotham, J.,) that for that reason, 
viz., the incompleteness of the evidence, the 
appeal must be dismissed. Fletcher v. Buzolich, 
7 V.L.E. (L.,) 348, 353. 

Although the evidence as furnished by the 
Judge's notes is very meagre, the Court will 
not scrutinise it too closely to discover reasons 
to reverse the decision. Guy v. Pierce, 3 A.J.E., 
48. 

Amendment— Where Judge May Amend.] — The 
initials of the County Court Judge to the 
rough draft of an appeal case, signifying his 
approval of that document as a draft only, 
cannot be regarded as his signature to the case 
for transmission to the Supreme Court. The 
case is not out of his hands finally until he has 
signed it in the ordinary way, and the seal of 
the Court has been attached to it. Up to that 
time he may further amend the case. Henry 
v. Eidd, 4 V.L.E. (L ,) 466. 

Special Case — Settled by Judge — No Evidence 
that Parties Could Not Agree— Act No. 29, Sec. 68.] 
— On an appeal by special case under the Act 
No. 29, Sec. 68, the case had been settled and 



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272; 



signed by the County Court Judge, but there 
was nothing to show that the parties or their 
attorneys could riot agree. The objection being 
insisted on, Held that the Supreme Court could 
not hear the case, and case struck out. 
Broadfoot v. Wilson, 1 W. & W. (L.,) 147. 

Special Case — Settled by Judge — Consent of 
Parties— Act No. 89, Sec. 68.]— On an appeal by 
special case under the Act No. 29, Sec. 68, the 
County Court Judge had settled and signed the 
case, and on the face of the case there was 
nothing to show that the parties could not 
agree, but in the fold of the case was a consent 
by the parties' attorneys to the case being set 
down for argument before the Supreme Court. 
Held that the parties had agreed to waive the 
objections, and that the Supreme Court could 
hear the case. Cooke u. Coward, 1 W. & W. 
(L.,)148. 

This case was identical, save that the consent 
to the case being set down for hearing before 
the Supreme Court was on a separate piece of 
paper and was signed by the respondent's 
attorney only. Held that the consent was suffi- 
cient to show that the parties had agreed to 
waive the objection, and that the case could be 
heard. Rucker v. Lyall, 1 W. & W. (L.,) 149. 

Case Signed by Judge — Presumption that Parties 
Differed.]— The fact of a County Court Judge 
stating that he had settled and signed an 
appeal case "in accordance with the provisions 
of Sec. 120 of the 'County Court Statute 
1869,' " necessarily implies that the parties 
must have differed, since he possessed no 
power under the statute to settle the case if 
the parties had not differed. Martin v. 
Elsasser, 4 V.L.E. (L.,) 481, 483. 

Judge of County Court Desiring Case Sent Back.] 
— If the Judge of the County Court desires to 
make a communication to the Court, e.g., that 
he wishes an appeal case sent back to him that 
he might state what his charge to the jury was, 
he should make it direct to the Court and not 
through counsel. Brown v. Lyon, 4 A.L.T., 39. 

The Court will not go behind the case as 
stated, nor send back a case containing a wrong 
direction to the Judge for re-statement. Currie 
v. McNeave, 1 A.L.T., 18. 

Case Irregularly Drawn up — " County Court Sules 
of 1881," Sec. 369, 271.]— On an appeal from a 
Court Court the appeal case was drawn up by 
the appellant's attorney, and a copy was made 
by the respondent's attorney, who made certain 
alterations in it. The case was then sent to 
the Judge, who settled the statements in it 
without further communication with the 
respondent. It was contended that the case 
was irregularly drawn up, since by the rules the 
Judge had no power to settle a case until the 
respondent had stated whether he had disap- 
proved of the draft as prepared by the appel- 
lant, and here the respondent had not done so. 
Seld that the case was irregularly drawn up, 
and case placed at the bottom of the list in 
order to give the parties an opportunity to 
agree on the facts in dispute. Grant v. 
Gilligan, 6 A.L.T., 10. 



Settling Appeal Case.]— Plaintiff's solicitor pre- 
pared an appeal case and sent it to defendant's, 
solicitor, who made some alterations and 
returned it. Plaintiff's solicitor agreed with 
the alterations, prepared a copy and sent it to. 
defendant's solicitor, who refused to sign it. 
Held that the proper remedy was to take out a 
summons in the County Court, calling upon 
defendant to show cause why the case should 
not be returned signed, or should not be settled, 
by the Judge. Meury v. Mayor of Daylesford, 
4 A.L.T., 150. 

Settling Appeal Case— Eemoval of Judge.]— If 
a County Court Judge who tried a case has- 
been removed before an appeal; the appeal 
case may be settled from his notes and signed 
by his successor. Bank of Australasia v. Keiree, 
8 V.L.E. (L.,) 147. 

Settling Appeal Case—" County Court Eules 1881,7" 
Rules 269, 270— Non-Compliance With.]— In set- 
tling an appeal case in the County Court, 
Eules 269 and 270 of the " County Court Rules- 
of 1881 " should be strictly complied with ; 
but if they are not complied with, the case 
will not necessarily be struck out, but may be- 
sent back for re-statement. Mason v. Ryan, 
10 V.L.E. (L.,) 189. 

Duty of County Court Judge.] — It is the duty of 
the County Court Judge to give the Court of. 
Appeal the benefit of the evidence which he 
was able to take, and to accompany it with the 
exhibits, to enable the Court of Appeal to form 
an opinion, and he is not to throw the duty 
upon any one else. Bauld v. WilUams, 6 
A.L.T., 162. 

Appeal Case Not Sealed.] — The want of a seal 
on an appeal case transmitted to the Supreme 
Court, under Sec. 120 of the " County Court 
Statute 1869," is a defect which can be sup- 
plied, and is only to be regarded on the question, 
of costs. Mason v. Ryan, 10 V.L.E. (L.,) 189; 

Case Delivered to Attorney not Authorised to 
Receive it— Mandamus to State Another Case Re- 
fused.] — Where a special case had been stated,, 
but owing to difficulties it had taken a long 
time before it was completed, and during this 
period the appellant was incarcerated in gaol,, 
and the case was delivered to his attorney who- 
was not authorised to receive it, and nothing 
more was heard of it, a mandamus to compel 
the Judge of the County Court to state 
another case was refused. Regina v.- Pohlman,. 
ess •parte Thomson, 4 A.J.E., 29. 

Delivery of Appeal Case to Respondent — Act Noi 
345, Sec. 120— Rules, Order 5, Rules 1 and 2— 
Extension of Time] — Where an appellant had 
exceeded the fourteen days allowed in Order 5 y 
Eules 1 and 2, for delivery,, and applied for 
an extension of time, the County Court Judge- 
refused on two grounds — (1) want of jurisdic- 
tion, (2) want of sufficient circumstances. Eeld 
that the Judge had jurisdiction to extend the 
time, as by Sec. 1.20 of the Act the right to- 
appeal vests in the appellant fulfilling 
its requirement, but the Court refused by 
mandamus to interfere with the Judge's. 



273 



COUNTY COURT. 



274 



discretion as to there being no sufficient cir- 
cumstances to justify the extension. Regina 
v. Hackett, ex parte Goodson, 5 V.L.E. (L.,) 
357; 1 A.L.T., 51. 

Delivery of Copies to Judges.] — It is not neces- 
sary to deliver a copy to an absent Judge. 
When a Judge is absent from the colony, it is 
sufficient if the appellant furnishes one copy 
and the respondent another to the two Judges 
constituting the Court of Appeal under such 
circumstances. Aarons v. Lewis, 3 V.L.E. (L.,) 
317. 

(5) Practice on Appeal. 

(a) Generally. 

Taking Objections — Objection Appearing on the 
Pace.] — Where a case stated for appeal was 
not sealed by the registrar of the County 
Court, in compliance with the County Court 
Practice, Order 5, Eule 4, the Court held that, 
inasmuch as the defect appeared on the face of 
the case, the proper time to take the objection 
was when the case was called on, and that the 
irregularity was no bar to the hearing the 
appeal, but merely a question of amendment 
with costs. Wrixon v. Macoboy, 2 A.L.T., 60. 

Objection Hot Taken Below.]— An objection 
which is not taken below, may, if fatal and 
incurable,, be relied on in the Supreme Court 
on the appeal. White v. Ross, 4 A.L.T., 85. 

What Points May be Taken on Appeal — Point 
Overruled.] — A point which was clearly raised 
in the plaint as a ground for a nonsuit and 
overruled, is open for argument on appeal, 
although it has not been specified in the 
grounds of appeal. Hill v. Willis, 6 V.L E. 
(L.,)193 3 2A.L.T.,20. 

A fresh point cannot be taken before Appel- 
late Court for the first time which has not been 
taken before County Court. English v. White, 
2 W. & W. (L.,) 14. 

Title of Rule Hisi.]— An objection that the rule 
nisi for an appeal from the County Court is 
not entitled in any cause, though endorsed as 
the appeal " A. v. B." is good ,- but on such an 
objection the Court allowed the rule to be 
amended on payment of the costs of the rule. 
Lucas v. Murray, 1 A.J.E., 130. 

Practice— Name of Cause. J — Per Curiam. It is 
extremely inadvisable that in appeal cases the 
names of parties should be transposed. It 
would be more convenient if a cause bore the 
same title through all its stages which it bore 
when it was first instituted. Marks v. Pett, 10 
V.L.E. (L.,) 342. 

Payment Out of Sums Lodged in Lieu of Security 
—"County Court Eule," No. 93.]— On an appeal 
from a decision of the County Court, under 
which the plaintiff was nonsuited with costs, 
the plaintiff paid to the registrar the amount 
of the costs and .£10 to abide the event of the 
appeal in lieu of giving security. There was 
no stay of proceedings, and the registrar paid 
the money to the defendant. The plaintiff 



succeeded on appeal, and the order allowing the 
appeal was drawn up and contained a clause 
ordering the registrar to pay the sums lodged 
with him by the plaintiff back to the plaintiff. 
On an application to amend the order by strik- 
ing out this clause, Held that the registrar was 
not justified in paving the money to the defen- 
dant under Eule No. 93, since the money was not 
lodged to the credit of the cause, but only in 
lieu of security to enable plaintiff to appeal,, 
and application to amend the order refused. 
Moore v. Prest, 1 A.J.E., 163. 

Varying Order of Appeal — Act No. 345, Sec. 
ISO.] — Under See. 120 the Supreme Court may 
impose and insert in the order of appeal such 
terms and conditions as may appear necessary 
and proper, the subject having been brought 
under its consideration at the time ; but the 
Court cannot, by an order, ex post facto, insert 
any new condition into the original decision. 
Corbett v. Bachelor, 5 V.L.E. (L.,) 33. 

New Trial.] — Where a new trial was ordered 
in an appeal from the County Court, the 
Supreme Court held that the trial should take 
place before a Judge only, to be set down at 
the next Nisi Prius Sittings after list of causes 
before a special jury of four, and before the 
list of causes for assessment of damages. 
Morley v. Rice, 3 A.J.E., 30. 

New Trial — Damages Certain.] — Where in an 
appeal the decision of the County Court Judge 
is reversed, both parties have been fully heard, 
and the damages are certain, there being 
nothing for the jury to assess, the Court, to 
save expense, will not order a new trial, but 
will enter judgment for the amount certain. 
Allison v. Byrne, 3 V.E. (L.,) 155 ; 3 A. J.E., 67. 

New Trial Before Judge of Supreme Court Without 
a Jury.] — A rule absolute in the first instance 
was granted, making the decision of the Judge 
a rule of Court upon a certificate of his decision 
by the Judge. Queen Insurance Company v. 
i, 5 A.J.E., 124. 



Appeal from Nonsuit — "County Court Statute 
1869," See. 120.] — Where a plaintiff is nonsuited 
against his will, and the County Court Judge 
has heard evidence on both sides, the Supreme 
Court has power under Sec. 120 of the " County 
Court Statute 1869," to consider the merits of 
the case, and give judgment accordingly. 
Dobson v. Sinclair, 2 A.L.T., 8. 

Appeal from Nonsuit — Evidence Not Gone Into.] 
— Where an appeal is allowed from a nonsuit 
without going into evidence, and the case was 
not heard in the County Court, though it may 
be scarcely necessary that the case should be 
heard by a Judge of the Supreme Court, yet 
as the Court would not under the circumstances 
grant a mandamus to compel the Judge of the 
County Court to hear the case, Semble that the 
better course is to order a hearing before a 
Judge of the Supreme CouTt. Solomons v. 
Mulcahy, 4 V.L.E. (L.,) 462. 



275 



COUNTY COURT. 



276 



Damages — Limit of Jurisdiction.] — In a County 
Court action the plaintiff sued on three counts, 
and the jury assessed separate damages on the 
three counts. The Court refused to interfere 
•with the damages, although it directed a re- 
hearing and refused leave to increase the claim 
to £500, inasmuch as a re-hearing before a 
Judge of the Supreme Court does not make it 
a Supreme Court action. Bernstein, v. Blashki, 
3 V.L.E. (L.,) 145. 

Notice to Strike Out Case — Appearance of Ap- 
pellant Not Necessary.] — The appellant is not 
bound to appear where notice of motion has 
been given by the respondent to strike out the 
appeal case, and, if he do not appear, the re- 
spondent can