6. the parties to the bank he would satisfy them that the cheque was all right, or they could have the cash at half-past 1. The necessity to see Mr. Tyson was to get his sanction to honouring the cheque for £2,400 before the Exchange had returned the cheques paid in to the plaintiff and Reed's credit for collection that morning. They got back to M'Kean and Leonard's office about four minutes past 1. Plaintiff said, "Gentlemen, you can have the cash in 30 minutes, or, if you come to the bank and sign the documents, the manager will satisfy you that the money is available. Mr Leonard said, " No, my clients are not going to chase all over the town; this is the place for settlement, and the matter is now at an end." W. Strong also said the matter was at an end. He then handed a folded piece of paper to plaintiff, who opened it, and found that it was the L100 preliminary deposit. Plaintiff put it in his pocket. Both plaintiff and Reed left, saying. This is a shabby affair altogether." Defendants' witnesses deny that these words were said, but say that the words used by plaintiff we e, ̈ I did not think you would be so short with us." Plaintiff and Reed went to the bank, and Mr. Tyson advised them to see Mr. Westley, Acting on h's advice, they cashed a cheque for 12,500, and got gold for it. Then they got a cab and called first at one of the defendants' (Mr. Lord's) house, at Carlton. He was not in. Then they went to Wm. Strong's, at Brunswick, but he was not in. They returned to the city about half-past 7. They got another cab, and accompanied by Mr. D. Smyth, plaintiff's clerk, Whitford, and a Mr. C. G. King, they went again to Lord's house. He was not in. They again went to W. Strong's, and found him in. Whitford and King offered to count the gold out before him. but Strong would not accept the cash, alleging it was too late at night, and he did not understand about legal tender at night. Whitford and King offered to sit up all night with the gold, and take his receipt, conditionally upon its being all right in the morning. Strong refused. Plaintiff's party then returned to town. Next day, plaintiff, Reed, and Smyth, with Mr. Westley, solicitor, went to M Kean and Leonard's office, and saw Mr. Hoyland. Mr. Westley said "I have come to inspect the title on behalf of the plaintiff, and to enforce the fulfilment of the contract." Mr. Hoyland said the contract had never been signed. Mr. Westley said a contract had been signed. Mr. Hoyland said if there was a contract he had been wrongly instructed, and it would put a new face on the matter altogether. Mr. Hoy land went to Mr Westley's office and saw the receipt. The defendant William Strong admitted that on the 24th May (two days after the preliminary deposit was paid) five or six persons, sent by an agent named Baker, in whose hands the property had been placed for sale at £550 an acre, waited upon him, The spokesman was a person who gave his name as Stott, but W. Strong now "ecognises him as F L. Flint, a Find agent. Strong told them he had sold the land to Pudney and Reed. Flint then asked if Pudney and Reed had settled for it. Strong told the parties that Pudney and Strong were to settle next day at 12 o'clock. He was then asked if he had got a substantial dep sit, and he told them "No." Strong says he was advised to be careful as Pudney and Reed were men of small means, He was then asked if he knew the names of any of Pudney's syndicate. Strong mentioned a Mr. Munday, Munday, who happened to be one of this party, said he had not been consulted, and would withdraw from Pudney and Reed. Two or three others present said they were to be in the same syndicate, but intended to withdraw. Strong says he told them if Pudney and Reed met their engagement at the proper time they would get the land but he admitted that he might have heard that the best would be done to prevent l'udney and Reed from getting the land, and he heard that Flint and others were anxious to get the land. He also admitted that he had consulted Hoyland that afternoon as to the legality of the steps he had taken with reference to Pudney; That he met Flint MacMahon and some others with reference to the same land at McKean and Leonard's on the afternoon of the day that he (Strong) had refused to complete the sale with Pudney ; and that they called in Mr. Hoyland to advise them as to getting the land for Flint and his party. The defendants have refused to complete the sale, and the plaintiff has brought this action. An objection was taken on behalf of the defendants that it appeared that Reed was the buyer as well as Pudney and that Reed's name was not mentioned in the contract and a further objection that Pudney was not described as the Purchaser in the contract, and, therefore the contract did not satisfy the Statute of Frauds. The case Vanderbergh v. Spooner, (L. R. 1 Ex., 316,) was cited as an authority in support of these objections, and also of the contention that the contract did not satisfy the Statute of Frauds. In my opinion that case has no application to the facts in this case and is readily distinguishable from it. The marbles sold were identified as having been purchased by B, and that fact was consistent with any other person being the owner at the time the contract was made. I would say that the defendants having elected to make a contract with R. C. Pudney, having full knowledge at the time that he was a member of a syndicate of ten persons formed for the purpose of buying this land and that as the representative of such syndicate defendants had negotiated with him for the sale and purchase of such land, cannot now object that the names of other persons interested in the transaction are not mentioned in the contract. I would say further to entitle him to do so the objection should have been raised on the pleadings. With regard to the second objection that it does not appear that R. Pudney was the purchaser named as such in the contract I confess I am not able to appreciate the force of it. The introductory words of the receipt are-- "Received from R. C. Pudney the sum of one hundred pounds by cheque, being deposit on purchase of 50 acres," &c. What other intendment could there be inferred but that R.C. Pudney is the purchaser? But if there were any doubt as to the occupations of the parties named in the contract the evidence of the surrounding circumstances of the essence of the contract, has the right by a is admissible to show that R. C. Pudney was the agent specific notice fixing a reasonable t'me for settleof a syndicate formed to buy this piece of land, that ment to make the time so fixed by him of the the defendants were the owners of the piece of essence of the contract. In this case time was not land, and that the occupations of these two persons of the essence of the contract under the provisions of brought together in the contract could only be con- the contract, and the question is was there such a sistent with the plaintiff being the buyer and the de-specific notice given by the defendants to the plaintiff' fendants the seller of that piece of land? Newell as to make time of the essence of the contract. I am v Radford, (L. R. 3 C. P. 55) These objections of opinion that there was no such notice given. In cannot in my opinion opinion prevail. The next the different accounts stated by the parties as to what objection taken was that the receipt does not took place and as to what was said and done embody all the terms of the contract, and that an ex-by different persons at the several meetings, tended contract was to be prepared, to be submitted there is the usual conflict of statements nearly to their solicitor, showing that the deposit receipt was always found where persons are called upon to not a final agreement. It was contended that there give their recollections of what took place on some were two terms of the contract omitted; one that occasion, or at some interview where such persons had bills of exchange were to be given for £9,500 payable not the slightest idea at the time that they would at 12 months, and one for £9,750 payable at 24 ever be called upon to do so. The reason of such months. I stated during the argument that I found conflict is obvious. People do not see, nor hear, nor as a fact upon the evidence, and upon all the circum- give the like attention to what is going on before stances attending the making of the receipt, that no them, and have not the same powers of observation or such term as to giving bills had been agreed upon of recollection. With regard to what took place on between the parties, and that the word "bills" did not Friday, the 25th May, at M'Kean and Leonard's office, I appear to have been mentioned by anyone until the believe the plaintiff's account to be the most accurate extended form of contract was prepared, which had because it was the most clear and circumstantial, the word "bills" printed in that part of it showing Where the defendant William Strong contradicts the how the purchase money was to be paid. With re- plaintiff. I believe the plaintiff and disbelieve the gard to the objection that the term providing that a defendant William Strong, and I do this because of formal contract to be prepared is the most important the manner in which he gave his evidence. It did part of the contract left out, I would say that if the not carry the conviction to my mind that he was the agreement were to be subject to the preparation of witness of truth. I am satisfied that the defendant such a formal contract, it would be the most important William Strong had in his mind the desire to get out term of the contract omitted, because it would show of the contract he had made with the plaintiff, and that the parties were not finally greed, and that went to M'Kean and Leonard's on that Friday mornwhat had been done was to be subject to something ing with the full intention to do so if he possibly thereafter to be agreed upon. But that is not this could. Whether he was influenced because a better case. The terms of the contract in this case were the offer had been made to him by Flint, or from believsubject of protracted discussion and deliberation ating the disparaging statements made against Pudney, several interviews. The plaintiff, within the know-it would be difficult to say. Now, the plaintiff's ledge of the defendants, consulted the members of the syndicate he represented upon those terms. At last the plaintiff and defendants agreed, and then the receipt was drawn up by the plaintiff, and all the terms agreed upon were embodied in it, he reading aloud what he had written. The defendant, Wm. Strong, signed it for himself and partners. I find, as a fact, that the receipt does contain all the terms of the contract agreed upon between the parties. I find also that the formal contract to be drawn up was to embody those terms and no others. Winn v. Bull (7 Ch. Div. 29), cited by counse for defendants, is an authority that such a contract will satisfy the Statute of Frauds, and that view of the law is confirmed by a later case in the House of Lords (Rossiter v. Miller, L.R., 3 Ap.. Ca., 1139). I now come to the objection that the plaintiff was not ready to pay over the £2,400 cash at the time appointed. It was contended that time was of the essence of the contract, although not made so by the contract itself, after a time had been appointed for the settlement of the payment under the contract. I would say that the vendor under a contract, in which time was not made account is that the appointment was fixed to be at his office, and not at M'Kean and Leonard's office; that there was an undertaking given by the defendants that the formal contract was to be submitted to his attorney (Mr. Daly) for perusal; that he had been repeatedly to Mr. Daly's office to see if the formal contract had been sent to him as promised, and found that it had not. I have come to the conclusion that the conduct of the defendant, Wm. Strong, at the meeting for the signing of the formal contract and 'payment of the £2,400 was most unreasonable. He would not go to the bank, nor would he allow sufficient time for so large a sum of money to be obtained in gold. His conduct appears to me to be capable of only one explanation, namely, from the beginning of that meeting to the end of it he desired to get out of the contract he had made with the plaintiff. I stated during the argument that in my opinion there was no rescission of the contract, and I now find as a fact that the plaintiff did not agree to the contract being rescinded. I am of opinion that the plaintiff was able, ready, and willing to perform his part of the contract if a reasonable time had been allowed him to do so; that his conduct Married Women's Property Act 1870, section 14-4 pointment of trustee of moneys to become payable under a policy of insurance expressed to be effected for the benefit of the wife and children of the in sure-Proof of the consent of the wife and adult children to the appointment of the proposed trustee will be required by the Court. Application on behalf of Junes Henry Dickenson that the National Trustees Executors and Agency Company should be appointed trustee of the moneys to become payable under the hereinafter mentioned policy of insurance. On the 22nd May, 1873, James Henry Dickenson effected a policy of insurance on 13th Oct., 1888. of notice of the application on any other relatives or connerions of the deceased, in the colony, dispensed with. Thomas John Forbes pending the minority of the Motion for a grant of letters of administration to eldest child of the deceased. 1888. guardian of the person and estate of Patrick Coyle Thomas John Forbes had been duly appointed had continued to act as such up to the death of the (who was a lunatic) on the 9th August, 1887. Hle lunatic, which event took place on the 3rd September, The deceased had left three children, all under age, who were his next of kin. The only other surviving relatives or connexions of the deceased were a female cousin and three sisters-in-law, all of whom were resident in the colony. A verified request by the three children (the eldest of whom was 19 years of age) to the applicant to act as administrator had No notice of the application had been served on any person. been filed. same matter. been made in the matter of James Bull, deceased. Weigall in support: A similar application had This appears in a report of another application in the (E) 11.) It is submitted that no notice need be In re James Bull, deceased (7 V.L.R. served on the relatives or connexions, the eldest child having nearly attained the age of 21 years. [Shelford on Lunacy, p 213, and Elmer on Lunacy, p 270, referred to.] HIS HONOR granted the motion. R. V. Sept. 13 DICKENSON EXP. FRANKLIN, Justices Act, No. 571 Land Act. 1869, No. 360, his life, expressed to be for the benefit of his wife and Before Higinbotham, C..)., Williams & Holroyd, J.J. children. From the affidavit, in support, it appeared that there were eight children of the marriage, four of whom were adult. It also appeared that no trustee had up to the present been appointed. MacHugh in support: The policy being effected in 1873, the provisions of the Married Women's Property Act 1870, section 11, apply. Re Bower's Policy (12 V.L.R. 210). The policy is expressed to be made for the benefit of the wife and children of the insured, and no trustee has yet been appointed. HIS HONOR: The wife and children are the persons intended to be benefited. Before making the order sought, I shall require proof of the consent of the wife and adult children to this application. Solicitors for applicant, Duffett and Brown. PROBATE JURISDICTION, Before A Beckett, J. Oct. 1th. IN THE ESTATE OF PATRICK COYLE, DECEASED. Practice, Probate Deceased lunatic Minor children Guardian of the person and estate of the lunatic Administration granted to the guardian pouding the minority of the eldest child; the eldest child having nearty attained the age of 21 years, service Sec. 49-Game Act, No. 464, Sec. 5-Objection token below; costs Land held under a Goldjie'd's Residence and Cultivation License under Sec. 49 of the Land Act, No. 360, is not Crown Lands within the meaning of See, 5 of the Game Act, No. 4604. It lies on the Respondent wishing to save costs, to show that an incurable objection was not taken before the justices. Order nisi to prohibit (under Act No. 571) justices from enforcing a conviction for trespass in pursuit of game under Act No. 164, sec. 5, on the ground that the land on which the trespass had taken place was Crown Lands. The evidence showed that the land in question was held by the complainant, one James Leckie, under a Goldfields Residence and Cultivation License under sec. 49 of the Lands Act, 1869, No. 360. Crown Land in this section Hood (to show cause), [Holroyd J. That provision is in another part of the Act relating to alienation by licenses of a dinerent character and by leases. It cannot be said that the words "every license in sec. 20, which prescribes conditions to be inserted cover licenses under sec. 49.] This license is for cultivation and residence. Could it be intended that sportsmen should destroy the licensee's crops! [Higinbotham, C.J.: He has his remedy by trespass.] At all events there should be no costs, as it is not shown that the objection was raised by the court below. Ierine (in support was only called on the question of costs): There is a strong inference from the cross-examination of complainant that this objection was raised. The successful party should have his costs, unless the other side show the objection was not taken. [Holroyd, J.: I think it lies on the respondent after he sees the order nisi to show that the objection was not taken. Williams, J.: I am of the same opinion, when the objection is incurable, It might be different if the objection was curable.] Per Curiam: The order will be made absolute with costs. Before Higinbotham C.J. Williams and Holroyd J.J. Sep. 14 1888. R v. PANTON EXP. SCHUH. Justives' Act No. 571–Police Offences Statute No. 265 Sees, 30, 65—1 Constable unauthorised by the local authorities has not a sufficiently direct interest in the penalty from the fact that one moiety goes to the Police Reward Fund by Sec. 65 of the Police Offences' Statute to enable him to prosecute for an offence under Sec, 30 of that Act. Order nisi to prohibit justices from enforcing conviction under Sec. 30 of the Police Offences Statute 1865 against Schuh a tobacconist for having his shop open on Sunday for the purpose of trade. Dr. Madden (to show cause-- Our answer to the contention that an ordinary informer could not sue as he has no interest in the penalty is that here the prosecutor Constable Hayes has a distinct interest in the penalty. Sec. 65 provides for the appropriation of these moneys and one-balf (this being incurred in a borough) goes to the Police Reward Fund which fund by Secs. 20 39 of the Police Regulation Act No. 476 is awarded to members of the Force under certain conditions. See Coakley v. Vickery 12 V.L.R. 142 quoting Bradlanghv. Clark 8 Ap. Ca, 354, R v. Hare exp. Bush 13 V.L.R. 71; Q. c. Cope Esp. Wilder 4 V.L.R. 397 is bad law. Hodges (to move the order absolute) The interest must be a direct one -R. v. Cope Exp. Wider 4 V.L.R. 397 (quoting Hawkins Pleas of the Crown) was not referred to in Coakley e. Vickery which was devided under the particular words of the Act which gave one half to the informer and th other half to the Local Board. If the contention on the other side be correct it would follow that every ratepayer has an interest when the penalty goes to the Municipality and that every individual has an interest when it goes to the Crown. The onus is on the common informer to show that the Statute has conferred on him the penalty for which he sues. Here he only has the possibility of an interest - Clark e. Bradlaugh & Ap. Ca. p 58. By section 30 the local authorities are to cause Sunday to be duly observed and the prosecutor had no authority to act on behalf of the Municipality. HIGINBOTHAM, C. J. An application has been made in this case to prohibit the enforcing of an order of justices on the ground that the prosecuting constable was not authorised and did not prove any authority to recover the penalties mentioned in sec. 30 of the Police Offences Statute, 1865. It did not appear that the constable was authorised by the local authorities to take proceedings against the defendant, for a breach of the injunction in the Statute, not to keep his shop open on Sunday for the purpose of trading. It was sought to justify the prosecution by the argument that a common informer might lay this information. I think that view cannot be supported. It was also contended that the constable had such an interest in the penalty, portion of which went to the Police Reward Fund, as to give him the right to act as a common informer. The authorities do not support that view. The rule in such a case had been laid down by Lord Selborne in Bradlaugh v. Clarke, & Ap., Ca. 544, in terms which had been adopted and followed in this court. That rule was that a person could not sue for a penalty in which he had no interest, and that an informer had no interest in a penalty of this nature unless it was expressly or by sufficient implication given by the Statute. That is to say the informer was to have an interest in the penalty so as to give him the right to sue. It was not sufficient that he should have an interest in a fund which was to be created or augmented by the penalties. The old authority which in Hawkin's pleas of the Crown stated: was cited In what cases an information or action qui tam will lie, I take it for granted that they lie on no statute which prehibits a thing as being an immediate oflence against the public good in general under a certain penalty, unless the whole or part of such penalty be expressly given to him who will sve for it, because otherwise it goes to the king and nothing can be demanded by the party. any part of such penalty to him who will sue for it by action or information, &c., I take it to be settled that anyone may bring such action or information and lay his demand tam pro domino rege quam pro se ipso." But when such statute gives The informer must have an interest in the penalty. He did not have such an interest in the result of proceedings from the mere fact that the penalty was applied to a fund out of which he might have a contingent interest hereafter. The strict rule of law applicable to these proceedings, and which was laid down in these cases was one consistent with wise policy. It is extremely desirable that the local authorities should understand that the obligation to enforce the provisions of the Statute lies with t em, and that a person is not to be tempted to assume the position of a common informer under a law of this kind, in the hope of gaining a pecuniary benefit from taking such proceedings. It is a very peculiar law and requires very peculiar judgment and discrimina tion in putting it into force. We are glad to find that in this case a common informer is not entitled to Justices Act No. 953 sec. 150-Police Offences Act No. 265 Secs. 15, 65. A constable may prosecute for assault committed within the limits of the shire under sec. 15 of the Police Off ences Statute although the assault was not committed in his view and although the penalty by section 65 when the prosecutor is a constable goes to the Police Reward Fund. Order nisi (under Act 953 Sec 150) to review a decision of the Police Magistrate by which Timothy O'Hehir the applicant was fined for assult on the ground that there was no Prosecutor before the Court the person prosecuting, being a mere stranger to the proceedings having no interest in the subject matter of the prosecution. The summons was issued against O'Hehir on the complaint of one Ferguson Boyce a constable of police for assaulting one Tysoe in the billiard room of Flacks' Hotel Ballan. The constable was not present when the assault was committed. Dr. Madden (to shew cause.) By sec. 65 of the Police Offence Statute No. 265 as this was in a shire half the penalty goes to the common informer hence any person has the right to sue for it Bradlangh v. Clark 8 App. Ca. 354. The proviso that where a member of a police force is the prosecutor his moiety shall go to the Police Reward fund does not deprive him of his right to sue but means he shall hand over the penalty when recovered. R v. Hare exparte Bush 13 V. L. Ř. 71. The restriction on the right of disinterested persons to sue laid down in Bradlaugh v. Clark only apply to qui tam actions and not to informations for offences Coakley v. Vickery 12 V.L. R. 132. The case of Q v. Panton exparte Schuh (supra) does not apply as that was decided under different conditions and it should have been contended in that case that the policeman was a local authority. 13th Oct. 1888 Irvine in support of the order: A policeman stands in no better position than any member of the public as regards the right to prosecute. [HIGINBOTHAM C. J. Has not a policeman in his official capacity as guardian of the public peace and order a right to lay an information for assault]. It is He has no official capacity as prosesubmitted not. cutor for the Crown. His function is to keep the peace and to arrest any person committing a felony or breach of the peace in his view. He may also as any member of the public may arrest any person found offending against the provision of the Police Offences Stat. No. 265 Sec. 56. [Higinbotham C. J. Whenever he can arrest he can prosecute.] The general rule laid down in Bradlaugh v. Clark has been extended to other than qui tam actions Coakley r. Vickery 12 V.L.R. 132. R. v. Hare exparte Bush 13 V.L.R. 71. The lattter case adds cases against public order and propriety but that is not this case. The interest in the penalty to enable a person to sue must be beneficial and substantial and not a mere nominal one. R. v. Panton exparte Schuh (supra) Per Curiam: This is an order nisi for the review of a conviction made by the justices at Ballan on the ground that there was no proper prosecutor before the Court, the person prosecuting being a to the proceedings and having no interest whatever in the subject matter of the prosecution. The proceeding was an information under section 15 of the Police Offences Statute for an unlawful assault committed within the limits of a shire. The prosecutor and inWe think that the former was a police constable. effect of section 65 of the Police Offences Statute is to make a common informer a proper prosecutor, and not a stranger to an information for this offence, where the penalty was incurred w thin the limits of a shire. It has been argued that under section 65 the fact of the prosecutor being a constable would deprive him of his moiety of the penalty. The effect of that section was to compel him to hand over to the police reward fund a moiety of the penalty which, if he had not been a policeman, would have been retained by himself. That section clearly recognised the right of a police constable, as of every common informer, to take these proceedings. It merely deprived him as a police officer of his portion of the fine which every other common informer would have obtained. On this ground the case might be decided. It is unnecessary to express an opinion whether the prosecutor in this case would have been entitled to lay, or justified in laying, this information by virtue of his position as an officer of the police. That might involve further inquiries into various questions, which it is not necessary now to determine. It is sufficient to say that this prosecutor was not a stranger to the Court as alleged, inasmuch as the penalty was incurred within a shire, and part of the penalty so incurred belonged to the common informer who laid the information. The order nisi to review will be discharged with costs. |