PRACTICE COURT. 31st August and 17th September. (Before Williams J.) for designs, and that which relates to the erection of the work in question. On the same date, 24th January, 1887, two distinct resolutions were passed by the council. One. "That in the opinion of this I council it is advisable that a new town-hall be erected in the borough, and that the cost thereof be included in the proposed new loan." The other, "That the following six architects, namely, &c., be requested to READE V. MAYOR., &c., OF ST. KILDA AND OTHERS. prepare alternative designs for submission to the Local Government Act 1874 (No. 506), 88., 165, 170, 248, 314, 315, 316, 321, 322, 339.-Local Government Amending Act 1884 (Vo. 831) sec. 6-Erection Town Hall--Loan-Resolution-Estimate of Cost-Inspection-Tenders-Objection by ratepayer -Time to take objection-Delay. council of a new town-hall, to be erected on one of the two sites, &c. The successful architect to have the carrying out of the building, cost not to exceed first of these two resolutions it will be observed, £16,000, if not objected to by the ratepayers." The leaves the question of what is to be the cost of the new town-hall an open question, and is a resolution. passed evidently in connection with the power conMotion on behalf of the plaintiff for an interim inferred upon the council by section 165 of the Act junction to restrain the defendants from proceeding of with the erection of a new town-hall at St. Kilda. The fact and arguments appear sufficiently from sent in shall represent a building, the cost of which the judgment. Mr Hodges and Mr Isaacs in support. Dr Madden, Mr Hood and Mr Topp for the council of the borough; and Mr Box for the contractors to oppose. No. 506; the second relates merely to inviting designs from architects, one of the conditions of the invitation being that the designs will not exceed £16,000. On the 23rd of February, 1887, the council's surveyor submitted schedules of the works to be carried out under the proposed loan of £90,000 (subsequently increased to £100,000), and in the summary is included "Town Hall £16,000," and on the same day a resolution was passed that the schedule of works so submitted be adopted and con HIS HONOR said I will consider the matter. HIS HONOR on a subsequent day read the follow-firmed; but these proceedings on February 23 relate ing judgment:-This was an application made to me, sitting as the Court, on notice for the purpose of restraining the defendants from proceeding with the erection of the new town-hall in St. Kilda. The grounds stated on the notice are three, and are as follow -1. That the said contract is not a valid contract, and was entered into illegally and in excess of the authority of the council of the said borough. 2. That proper tenders were not called for previously to entering into the said contract. 3. That the said loan was improperly and illegally incurred. In argument before me counsel for the applicant particularised these grounds by confining the argument to the three following points :-1. That the resolution authorising the erection of the town-hall only authorised the erection of a town-hall the cost of which was not to exceed £16,000, and that this resolution had never been rescinded. (2) That the council had failed to call for proposals as required by section 170 of the Local Government Act No. 506. (3) That no estimate of the cost of the work had been prepared; nor was such estimate open for the inspection of the ratepayers, as required by section 314 of the Local Government Act No. 506. With these grounds I proceed now specially to deal. No. 1. I do not think the resolution authorising the erection of a town-hall confined the council to the erection of one which would cost not more than £16,000. In discussing this ground, and likewise ground No. 3 (non-preparation of the estimate), I desire at the outset to observe that there is, in my opinion, a marked distinction between those matters which relate to the loan and the calling to the proposed loan. So with reference to the public works committee's report, subsection C, "that the amount to be provided in the loan schedule for the erection of the town-hall, &c., be restricted to £16,000," and the resolution adopting that subsection on 19th September, 1887. The report of the town clerk and surveyor, presented on the 3rd October, 1887, so far as matertial to the subject matter on the present application, relates only to the designs for the town-hall. "The cost of carrying out designs must not exceed £16,000, any design necessitating a larger expenditure will be rejected as not complying with these conditions." The proceedings again on the 12th December, 1887, clearly relate to the proposed loan, and not to the erection of the work in question. The result therefore, in my opinion, of the proceedings to which I have referred is that there is no resolution which limits the council to the erection of a town-hall, the cost of which shall not exceed £16,000, but that there is, on the other hand, a resolution (assuming that any such resolution was required) authorising the council to erect a town-hall, and to include its cost in the proposed new loan. scribing the first part of this resolution as an authority to the council to erect a town hall is, perhaps, hardly correct. The authority to the council is contained in section 165 of the Act No. 506, which, when read in conjunction with section 248 gives the council power to construct this work, and to pay for it out of the "municipal fund;" and in connection with the subject of payment for such a work in the event of a deficiency of funds reference may be made to De section 6 of the amending Act of 1884 No. (831). If the view I have expressed as to the effect of the resolutions be correct, it disposes of the first ground of the contention of the counsel for the applicant, and I may proceed to the consideration of the second, viz., that the council had failed to call for proposals as required by section 170 of the Local Government Act No. 506. The facts bearing upon this point are shortly as follows:-The council undoubtedly, in the first instance, complied with the requirements of the section, and tenders were sent in, all of which appeared to the council to involve too large an outlay. It accordingly selected the three lowest tenders of those sent in and invited the three lowest tenderers to tender again, omitting certain portions of the originally proposed work. This was done, and then the lowest of the three tenders was accepted. I have some doubt whether the council ought not also in the second instance to have proceeded under section 170, but passing that by undetermined, I do not think the omission of the council to do this invalidates the contract which the council have entered into with the defendant contractors, and under which a considerable portion of the work has been executed. I am inclined to think this section is directory, and that though non-compliance with its directions might give an aggrieved ratepayer a right to stop the council from entering into a contract with a contractor, no such right passes as against a contractor who, in good faith has entered into a contract with the council, and executed work under that contract. If collusion could be established the right would, I think, survive; but in my opinion, the defendant contractors in the present case have acted in perfect good faith. I think the dicta of Bramwell, L.J., in Young v. The Mayor, &c., of Leamington, S. App. Cas., pp. 527-528. support my judgment upon this point. The only ground remaining for consideration, so far as the applicant is concerned, is the third :-"That no estimate of the cost of the work had been prepared, nor was such estimate open for the inspection of the ratepayers as required by section 314 of the Local Government Act No. 506." This point involves a consideration of part 13 of the act "loans," and perhaps also of the facts-(1) That no such demand as is contemplated by section 316 has been made; (2) that thereupon the council proceeded under sections 321 and 322 to make and adopt the special order for borrowing mentioned in those sections, and (3) that the loan was in due course obtained. I think the ratepayers cannot now object to the legality of the loan, having failed to do so at the proper time; and that the objection raised of noncompliance with sections 314 and 315, though it might have been, if raised at the proper time, a valid objection to proceeding to "borrow is not a valid objection to the right of the council and the contractors to proceed with the present work. I am disposed to with agree the contention of counsel for the applicant that no such estimate has been prepared, as is contemplated by section 314, that is, according to my opinion, an estimate of the cost of work to be carried out in accordance with certain plans and specifications; but as I have said before, this omission does not affect the validity of the contract for this work, nor does it give a ratepayer any right to have the parties to the contract restrained from carrying on the work the subject of the contract. Upon this point I would further observe that section 339 makes it imperative on the council to apply loan monies to the purposes for which the same were borrowed. No objection has been taken that the council is out of the loan monies appropriating any of the monies, borrowed for other purposes, towards payment of this particular work, that it is, in other words, committing, or contemplates committing, any breach of the injunction contained in section 339 of Act No. 506. If such an objection were taken I do not think it could be supported on the facts. The council, as I understand the facts, contemplate applying in payment of this work the £16,000 borrowed for the purpose, the premium paid by English lenders for being allowed to lend, and whatever further sum may be required out of the municipal funds, or from funds which form no part of the loan. In any event, if this ground has been relied on by the applicant it would have been for him to establish it; but it has neither been relied on nor established. In conclusion, I desire to express my opinion that, while conceding that the applicant comes before me as a protesting and not as an acquiescing party, he has been guilty of very great and unreasonable delay in making the present application, the contract having been accepted as far back as the 14th of May of the present year, and the present notice of motion being dated the 11th of August. If it were necessary, which it is not, to decide this application upon this ground, I should not feel disposed, after such unreasonable delay, to give him the assist ance he now seeks. Apart again from this objection I have some doubt as to his bona fides. I am not satisfied that he is anxious to have the further execution of this contract stopped on account of excess of cost. I am not satisfied that his real reason is not his dissatisfaction with the site on which the erection of the town-hall is taking place. I dismiss the motion with costs, to be taxed. Solicitors, for plaintiff, Cleverdon and Westley; for defendant council, Woolf; for defendant contractors, Gillott, Croker, Snowden and Co. It appeared from the affidavit of the Crown Solicitor filed in support of the application that an order by consent was made by Kerferd J. that the questions of law raised by the pleadings should be heard before the Full Court, and that if the decision of the Full Court should be in favor of the defendant judgment should be entered for him with costs, and if in favor of the plaintiff the damages (if any) should be assessed by a judge, and the judgment should be entered accordingly for the plaintiff with costs, subject only in both cases to the right of appeal from such decision and judgment to the Privy Council. The questions of law were argued before the Full Court, and judgment was ordered to be entered up for the plaintiff and the cause to be set down for assessment of damages. Notice of inquiry for the assessment of damages by a judge had been given for the next sittings of the Court. That the order was a final order by which the merits of the case were concluded and may indirectly involve a civil right amounting to or of the value of £500. Mr. Box in support. The application is made under the Orders in Council, 9th June 1860, by which leave to appeal to the Privy Council may be given where a civil right amounting to or of the value of £500 is involved. In this instance the plaintiff claims £1000 damages, and therefore a much greater amount than the statutory amount may be involved. Mr. Hodges to oppose. The damages have not yet been assessed, and therefore the application is made too soon. The affidavit only says that a civil right of the value of £500 MAY be involved, it does not use the word MUST. The case of M'Kinnon v. The Board of Land and Works, 3 A.J.R. 47, shows that the application cannot be granted at this stage of the proceeding. HIS HONOR said: I will consider the matter. HIS HONOR on a subsequent day read the following judgment:-The defendant in this case applies for an order that leave be granted to the defendant to appeal to Her Majesty in Her Privy Council from the decision and order of the Full Court, pronounced on the 3rd of September, 1888; and that all further proceedings in this cause be stayed pending the said appeal. The defendant relies on the following grounds :First, that he feels aggrieved by the decision; and secondly, on the reasons which are disclosed by an affidavit to which I shall next refer. An affidavit has been made in support of the application by the Crown solicitor, and he includes in his affidavit the order made in this cause by Mr Justice Kerferd, on the 13th of June, 1888. That order was made on consent, and it provided that this action was to be determined by the Full Court on the arguments of the questions of law, raised on the pleadings, and that the questions of law should be set down for argument before the Full Court. The defendant consented to such questions of law being argued and determined, notwithstanding that notice of action had not been delivered, the omission to de'iver such notice before action being 29th Sept., 1888. waived by the defendant. The order further provided that if the decision of the Full Court upon the question of law should be in favor of the defendant, judgment in this matter should be entered for the defendant, with costs to be taxed, and that if such decision was in favor of the plaintiff, the damages (if any) should be assessed by a judge of the Supreme Court; and that judgment should be entered for the plaintiff accordingly, with costs to be taxed, subject only, in both cases, to the right of appeal from such decision, and judgment to Her Majesty in her Privy Council. The order was in no way to imply any admission of the facts of the case as raised upon the pleadings, except so far as it was necessary for argument and determination of such law points. The affidavit also sets forth that the arguments of the questions of law came on for hearing before the Full Court, and that on the 3rd of September instant the Full Court ordered that judgment should be entered for the plaintiff, and that this cause should be set down for assessment of damages by a judge. The Crown Solicitor says that, as such solicitor, he has received notice of inquiry for the assessment of damages in this action by a judge for the next sittings of this Court at Melbourne; that the order so made by the Full Court was a final order, and “ may indirectly involve a civil right amounting to or of the value of £500 sterling ;" that by the order the merits of the case are concluded. The cases of M'Kinnon v. Board of Works, 3 Aus. Jur.; and The Bendigo Waterworks Company v. Thunder, 1 V.R. (L.) were mentioned. It appears to me that this application on the part of the defendant is at least premature, for I am not informed, except by way of conjecture, of the extent of the "civil right" involved, within the meaning of the Privy Council order. The order of Kerferd J. provides for an assessment which has not been tried, and which must be completed before final judgment can be said to have been entered for the plaintiff. is not stated that any other claims of a similar character may be made, or that the liability of the defendant may be increased by the action of any other litigant. I have no evidence by which I am able even to estimate the amount of the claim. It may be It much, or it may be little; but I am quite in the dark as to the appealable amount. The order to which I have referred only applies to this particular claim, and which as I have said, has not been ascertained or concluded, as contemplated and provided for by the consent order. If I granted this application in its present form I should, in effect, decide that a mere statement to the effect that a civil right was involved was a sufficient ground to establish a right to appeal of opinion that it is not a sufficient ground, and I, under the existing order of the Privy Council therefore, refuse this application for liberty to appeal ; the costs to be costs in the cause. I am defendant, Crown Solicitor. Solicitors, for plaintiff, Cleverdon and Westley; for *Ante p.g. 60 (Before Williams J.) 19th and 21st September. RODGERS AND OTHERS V. HEYMANSON. Judicature Act 1883 (No. ) Sec. 41-Rules of Supreme Court 1883 (English) Order XXXVI. r. 12 -Motion to dismiss action for want of prosecution granted on the application of the defendant. Motion on behalf of the defendant to have the action dismissed with costs. 29th Sept., 1888 I casus omissus in the rules, for none of them provide for a contingency such as has arisen in this case. have consulted the other judges, and we all think that under the circumstances sec. 41 of the Judicature Act 1883 would apply. That section provides that "The practice and procedure of Her Majesty's High Court of Justice in England existing at the time of the passing of this Act, whether established in England by Act of Parliament or by Rules of Court or by usage, shall, so far as applicable, and so far as not inconsistent with this Act or the Rules of Court in the second schedule to this Act costs. Solicitors for plaintiffs-Wisewould, Gibbs and Wisewould; for defendant-Fink, Best and Phillips. It appeared from the affidavit filed in support of the application that issue was joined in the action on be adopted and followed in the Supreme Court. the 16th March, 1887. The plaintiffs on the 7th April, 1887, obtained a commission to examine wit-mode of procedure, and therefore we resort under sec. There is no Rule of Court providing for this special ness in England, returnable on the 1st November, 41 to the practice and procedure of Her Majesty's 1887; the return day was extended by consent to High Court of Justice in England. Under that the 15th February, 1888, and was further extended peremptorily to the 1st September, 1888. On the 16th authority I can grant this motion, which I do with June, 1888, the defendant's solicitors received a letter from the plaintiffs' solicitors, stating that they were informed that the plaintiffs were unable and did not intend to proceed with evidence under the commission, and not proceed any further in the action and intimating that no further expense need therefore be incurred. A reply to this letter was sent by the defendant's solicitors on the 19th June, 1888, in which it was asked that the proper steps should be taken by the plaintiffs to discontinue the action, as it was unfair to stay the defendant's hands by an informal notice. The plaintiffs' solicitors did not reply to this letter, and on the 4th September as search was made, when it was found that the commission had not been returned to the prothonotary. Mr. Goldsmith in support. The letter of the 16th June, 1888, does not bind the plaintiffs. Order XXXVI, r. 12 of the English Rules provide for a case of this kind, but that rule is not in force here. If some remedy is not provided the defendant would have to go to the expense of preparing for trial, although the plaintiff had no intention of appearing. By sec. 9 (II.) of the Judicature Act 1883 it is provided that "Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the Rules of Equity and the Rules of Common Law with reference to the same matter, the Rules of Equity shall prevail." There is no Common Law Rule in respect to this matter, but I submit that relief would have been given in Equity. He cited La Grange v. M'Andrew 4. Q.B.D. 210. Mr Agg for the plaintiffs. The plaintiffs reside in England, and their solicitors in this colony have not received instructions to discontinue the action. I would suggest that your Honor should make the same order as your Honor did in Rodgers v. Gerson 10. A.L.T. 57, viz., order the matter to be adjourned for one month to enable the solicitors to receive instructions from their clients. HIS HONOR Said I will consider the matter. HIS HONOR On a subsequent day said-This was a motion to dismiss the action. There seems to be a SUPREME COURT SITTINGS. Before Kerferd, J. 6th and 13th Sept. IN THE MATTER OF ESTHER LEGH, A LUNATIC. Lunacy Statute s.s. 96, 126—Inquiry before MasterNext of Kin-Leave to appear on inquiry-Costs. In order to entitle next of kin to their costs of appearing on an inquiry before the Master in Lunacy, an application for leave to appear thereon should, in the first instance, be made to the Court. Motion on behalf of Benjamin Muton Lucas and Isaiah Douglas Lucas for an order that the costs of the said B. M. Lucas and J. D. Lucas (to whom the Master in Lunacy gave liberty to attend on the preceedings before him in the above matter) of and incidental to the inquiry as to the lunacy of the said Esther Legh may be taxed, and when taxed, paid to the said B. M. Lucas and J. D. Lucas or their solicitors on the grounds disclosed in the affidavits filed herein. It appeared that the petition of William James Lucas for an inquiry into the soundness of mind of the said Esther Legh was heard on the 22nd September 1887, and an order was made for the inquiry as asked. On the 3rd October, 1887, the inquiry was commenced before the Master in Lunacy, and the said B. M. Lucas and J. D. Lucas appeared thereon and applied through their counsel for leave to cross examine witnesses, &c., which leave was granted by the Master. Goldsmith, in support :-Upon the inquiry that was held the two applicants were allowed to attend, and this is an application for the costs incurred by attending the inquiry. They obtained permission to attend under section 126 of the Lunacy Statute. The affidavit of the solicitor for the applicants shows that the Master had "determined" that the applicants might attend ; Elmer on Lunacy, p. 21; Shelford on Lunacy, p. 241. wood local board in accordance with the provisions of the Health (Amendment) Act 1883. It appeared that the local board of Collingwood had served a notice dated the 16th February, 1887, upon the defendant, requiring her to take the necessary steps for the formation, &c., of an intended road upon which the said land abutted, in accordance with section 131 of the above mentioned Act. Subse Higgins, to oppose :The material statements in the affidavit of the solicitor for the applicants are not admitted by the petitioner. Section 96 of the Lunacy Statute gives a discretion to the court to order that the costs of persons attending the inquiry before the Master be paid as may seem fit. No such circum-quently, on default being made by the defendant, the stances have been shown as would justify the court in awarding costs. There is no analogy between this proceeding and an administration action. Cur, adv. oult. HIS HONOR: An application should have been made to the court for leave to appear and oppose. In in re Nesbitt (2 Phill. 245) the Lord Chancellor gave permission to attend. He went on to say "It is for the interest of all parties that the truth should be ascertained, and therefore, although it occasions some additional expense, unless the estate be a very poor one, it is desirable that they should have leave to attend." In in re Richards (1 De. G. M. & G. 719) leave was granted upon the condition that the applicant should undertake to abide by any order the court should make as to increase of costs caused by the attendance. In this case there was no previous application to the Court, and the Master allowed the next of kin to appear at their own request and by consent of the parties. To entitle them to costs, the leave of the court for them to appear ought to have been first obtained. It was not. I therefore dismiss the motion with costs. Solicitors, for applicants, Watson, Morgan & Gill; for the committee, Briggs and Snowball. Before Kerferd, J. ABBOTT V. BULL. 12th and 21st Sept. Health (Amendment) 1883 ss. 131, 144, 145, 146. Notice requiring owners of property to execute certain works-Owner in default-Work executed by local board---Incumbrance upon land—Personal Liability. Where works had to be executed by a local board under section 131, owing to the default of the owner, if the owner at the time the statutory notice is served, is known, service of the notice on him does not charge the land with the sum payable to the local board so as to make it an incumbrance affecting title. The liability is simply personal. local board had selected the alternative course prescribed by the section, and had proceeded to execute the work themselves. Notice requiring payment of the proportion of the expenses incurred, due by the defendant, was served upon her on the 17th August 1887, and, subsequently, a final notice to the same effect, dated the 24th November, 1887. The agreement for the sale of the land was executed on the 26th October, 1887. On the original hearing, Webb J. declared the plaintiff and defendant entitled to specific performance of the agreement, and directed a reference to Chambers to enquire as to title. By the Chief Clerk's certificate it appeared that the plaintiff'objected to the title on the ground that the above mentioned sum of £34 13s. Od. was due to the Collingwood local board for the construction of George Street upon which the property abutted. To this the defendant had answered that the sum was not a charge or encumbrance on the land. The certificate went on to state that this objection of the plaintiff had not been sufliciently answered, and that the defendant could make a good title upon payment of the said sum. summons was, therefore taken out by the defendant to vary the Chief Clerk's certificate by striking cut, amongst others, the words "had not been sufficiently answered" and "upon payment of the said sum. The summons, by consent, was adjourned into court. A Topp, for the defendant-The Chief Clerk's certificate should be varied as required by the summons. Either the defendant is not liable to pay the sum at all or, if she is, it is a personal liability only. If the work was not executed at the time of the agreement for sale as is contended the defendant is not liable at all; it is not the notice under section 131 but it is the execution of the work which creates the liability. By the interpretation clause of the act the term "owner" is defined to mean the person for the time being entitled to receive the rents of the land etc. Accordingly, though the defendant may have been in default under sec. 131 she cannot be considered as Application to vary the Chief Clerk's certificate. the "owner" in default at the time when the work The action had been originally instituted by the was completed, which event happened as is contended, plaintiff against the defendant by statement of claim, after the date of the agreement for sale. As regards and by the defendant against the plaintiff by defence the second position, the plaintiff is on the horns of a and counter claim, to enforce specific performance of dilemma; sections 144, 145 make it quite clear that an agreement for the performance of an agree- the power to charge land can only arise under the ment for the sale of land situate at Fen-act when the owner is unknown. Accordingly, if the wick-street, Clifton Hill, parish of Jika Jika, defendant is not the owner she is not liable at all; if county of Bourke. The fact of the agreement she is the owner, she is known, and therefore no for sale was not disputed, and the net issue appear- charge attaches to the land. The 2nd and 5th clauses ing on the pleadings was, which of the parties should of the contract for sale show that the plaintiff' was pay a sum of £34 13s, stated to be due to the Colling- the person entitled to the rents &c, at the time of the |