IN CHAMBERS. Before 'Beckett, J. EDELSTEN V. COOKSON. Rules of Supreme Court 1884, Order XXII, r., 6 (a) --Payment into Court-Money paid in taken out by the plaintiff with intention of going on to trial for the balance of the sum claimed-Order made allowing plaintiff to replace in court the sum so taken out. matter and from the pleadings that he did not in23rd and 24th Oct. tend by drawing the £70 out to abandon the remainder of his claim. Though the effect of taking the money out might have been to discontinue the action I think the step is not irrevocable. In the case of Savage v. Payne, 33 W.R. 909 to which I have been referred a blunder had been made on both sides, but the plaintiff was not held bound to the consequences of the blunder which he had made in taking money out of Court and was allowed to replace it. It is true that in that case the defendant offered to have the moneys replaced, but I gather from the tenor of the judgments that the plaintiff would have been allowed to recover his position had there been no such offer. In giving the leave sought I express no opinion as to the effect of taking out the money having regard to the pleadings and to the stage at which the case stood, or as to how the costs of preparing for the trial which did not come off ought to be disposed of. The second question seems to me to depend upon the All that I order is that the answer to the first. plaintiff may at his own cost, within two days, return the money that the Prothonotary receive the money and cancel to the Prothonotary which he drew out; the receipt given by the plaintiff therefor, and that the plaintiff pay the defendant two guineas costs of the summons, and as requested I certify that this is a proper case to be attended by counsel on behalf of the plaintiff. Application on behalf of the plaintiff for leave to replace a sum of £70 which had been paid into Court by the defendant. The action was for commission and the defendant by his defence admitted the agency but said that there was no agreement to pay any thing more than the ordinary rate of commission, viz., 24 per centum, which amounted to £70 paid into court. The plaintiff in his reply stated that that sum was not sufficient to satisfy his demand, but took the money out of court being under the impression that he could do so and go on with the action to recover any balance found to be due to him. Kerferd, J. at the trial was of opinion that under the circumstances the plaintiff could take the money out only in full satisfaction of all demands, but gave leave to the plaintiff to apply for liberty to replace the sum taken out. Dr. Madden in support. The effect of Order XXII R. 6 (a) is that a taking of money out of Court is equivalent to a judgment in the plaintiff's favor, and the Court will always allow an application to set aside a judgment to be made. Chitty's Archbold 14, Ed. p.g. 347, Savage v. Payne, W.N. (1885) 154. The plaintiff desires an order that the £70 may be paid into Court to the credit of the cause and also that the receipt for the same be cancelled. Mr. Barrett to oppose. It is submitted that the action is entirely stayed under Order XXII r. 6 (a) M'Auley v. Beatty, 8 A.L.T., 66 12 V.L.R. 633. When an action is once stayed it cannot be again revived. Walker v. M'Kinley, 7 A.LT. 19, 11 V.L.R. 366. The report of Savage v. Payne, in 33 W.R.. pg. 909 shows that the judgment was by consent. HIS HONOR said: I will consider the matter. HIS HONOR on the following day read the following judgment: In this case the plaintiff sued for £150, and the defence was accompanied by payment of £70 into Court. The plaintiff replied denying that the sum paid in was enough to satisfy his claim. The defendant rejoined. The plaintiff subsequently took the £70 out of Court in satisfaction of the cause of action in respect of which payment into Court was made. He now applies by summons to be at liberty to replace the £70, being desirous of continuing the action, and stating that he did not intend to forego his right of action for the remainder of the sum claimed. I am satisfied from the affidavit in the Bills of Exchange Act 1883 (No. 772) sec. 70-Where the plaintiff did not apply for an order that the loss of the promissorg note sued upon should not be set up until after the defence had been delivered, the order asked for was made on the terms of the plaintiff paying the costs of the application, and of the defence setting up the loss of the instrument. Application on behalf of the plaintiff for an order under sec. 70 of Act No. 772 that the loss of the promissory note sued on in the action be not set up, and that the second paragraph of the defence be struck out. The action was brought upon a promissory note, of which the defendant was the maker and the plaintiff was the payee. The defence alleged that the defendant did not make the note and that the note was lost. It appeared from the affidavits that upon delivery of the defence setting up the loss of the note the plaintiff offered and the defendant accepted an indemnity against the claims of any other person upon the note, and the defendant gave a consent in writing that in consideration of the indemnity he would consent to an order that the loss of the note should not be set up or relied upon at the trial but refused to strike out the paragraph of the defence setting up the loss of the instrument on the ground that the defence had been properly pleaded, and that if the paragraph were struck out the defendant would not be able, in the event of his ultimate success in the action, to obtain his costs of such portion of his defence. Dr Madden in support. So long as the defence of loss of the instrument stands on the record the plaintiff must plead to it. This plea should be struck out, for the plaintiff has indemnified the defendant against loss on the instrument and the defendant has consented to an order being obtained that he should not set up or rely upon this defence. It is embarrassing in the extreme to have to plead to a matter which is not really in issue between the parties. Mr Hodges to oppose.-Applications under sec. 70 for an order that the loss of a promissory note sued on should not be set up should be made before the action was commenced or immediately afterwards. If the pleading setting up the loss of the document is ordered to be struck out it should only be on the terms that the plaintiffs pays the costs of this application and of the plea. King v. Zimmerman LR 6 C.P. 466 any pay Appointment of guardian of infants to consent on their behalf. In an application for the appointment of a guardian of infants to consent on their behalf to the prayer of a petition for the sale of estate settled within the meaning of the above-mentioned statute, it is not sufficient to show that the proposed guardian has no interest adverse to the infants, and is a person of respectability. Similar statements to those made on similar applications under the English Settled Estates Act will be required. [See Daniel's Chancery Forms, 4th Ed, form 2227.] Order 16, part 3 (Rules of the Supreme Court) does not apply. Application for the appointment of a guardian of infants for the purpose of consenting on behalf of the infants to the prayer of a petition for the sale of settled estate. Higgins, in support, referred to Ord. 16 r. 19. [Weigall made a similar application in re settled estates of Simon Staughton.] cases purposes, and those His Honor, in giving judgment, said:-In these cases I have to consider applications for the appointment of guardians to consent on behalf of infants to orders under the Settled Estates Act. The affidavits merely show that the proposed guardians have no interests adverse to the infants, and are persons of respectability. They do not show that the nominees HIS HONOR Said. The matter resolves itself into know anything of the property in regard to which one of costs. It is merely a question of terms. The they are to act, or why they have been selected to defendant pleaded the loss of the document which represent the infants. According to my recollection was a perfectly good defence, but something has been it has always been the practice to require information done subsequently which does away with the legal of this kind, and I have corroborated my impression effect of that defence, and the defendant consents to by reference to the papers in two of the reported an order that that defence should not be set up. The - In re Dolan (1 V.R. (E) 30 and in re plaintiff thinks that he is entitled to something more McGregor (4 V.L.R. (E) 1), in each of which I find than that, and that the pleading which was proper in that special affidavits were filed. The rules framed the first instance should be struck out, but he did not under the English act specified certain particulars to make offer to the costs of the pleading or of this be given on applications for these application. The defendant on the other hand does under the fourth head are as follow:-" In what way not object to the pleading being struck out on the the proposed guardian is connected with the infant, terms of the plaintiff paying the costs of the pleading and why proposed, and how qualified to be appointed." and of this application. I order that the loss of the Our court has not adopted these rules, but it has promissory note sued upon be not set up; that the required similar statements to be made. It should second paragraph of the defence be struck out; and know why it can properly accept the consent of the that the plaintif do pay to the defendant the sum of person whom it authorizes to represent an infant on £3 3s for his costs of and attending this application. an application under the act. There is no satisfactory evidence on the subject as to the proposed guardians in either of the cases before me, and I shall, therefore, require further information before I appoint them. I have been referred to part 3 of order xvi. of the new rules as altering the practice, but I do not think the rules in question can be taken to apply to guardians required for the special purposes of the act. The act does not specify how guardians are to be appointed for its purposes, but although its language was general it was held that an ordinary testamentary guardian could not act as such, and that special requisites were to be complied with. I cannot suppose that the rules intended to substitute the nomination of a solicitor for the exercise of discretion Solicitors for plaintiff, Smith, Emmerton and Johnson; for defendant, Gillott, Croker, Snowden and Co. SUPREME COURT SITTINGS. Before A'Beckett, J. Oct. 18th, 25th IN THE SETTLED ESTATES OF JOHN LOBB. Real Property Statute, 1864, part V. s.s. 95, 113.- OF CASES He further contended that the 107th section of the "Instruments and Securities Statute 1864" had not been complied with. by the court, and to dispense with the information | the contract. Solicitors: Smith, Emmerton and Johnson. (Before Higinbotham, C.J.) Oct. 19th 22nd. CORCORAN V. O'ROURKE. (3.) Isaacs (with him Bryant) for the defendant :-The plaintiff has failed to prove that he was ready and willing to perform his part of the contract. The receipt is admissible in evidence for no purpose as it is irregularly stamped. Apart from the receipt, the contract is bad for three reasons. (1.) The description of the property sold is not definite. (2.) The consideration is not unambiguously stated. There is a term of the contract omitted: [Cooper v. Smith (15 East 103) Anson on Contract 56; 107- Benjamin on Sales (3rd ed.) 186: Smith v. Surman (9 B and C 561) cited.] Part of the consideration is to be given by bill but it is not stated for what period the bill is to be. McCarthy v. Monahan (5 Aust. Jurist 5). As regards the total inadmissiblity of the receipt: "Stamps (Duties) Act 1879" sections 38, 60. Instruments &c. Statute 1864 section Contract for the sale of land-Specific performance-The plaintiff claimed specific performance of a contract for the sale of land. The contract was as follows:-May 14th, 1888. I hereby agree to sell my property to Mr. Corcoran for the sum of four hundred pounds stg., and to allow the sum of ten pounds commission, also to take the sum of three hundred and seventy-five pounds cash, and Mr. Corcoran's bill for the balance, fifteen pounds. John O'Rourke. Held, that the memorandum did not satisfy the 107th section of the "Instruments &c. Statute 1864," in two respects; firstly, as the land sold was not sufficiently described; secondly, as the consideration was not sufficiently stated. Action to enforce specific performance of an agreement for the sale of land in Berkeley street, Carlton, instituted by William Edward Corcoran (purchaser) against John O'Rourke (vendor). The agreement entered into by the parties ran as follows: May 14th, 1888. I hereby agree to sell my property to Mr. Corcoran for the sum of four hundred pounds stg., and to allow the sum of ten pounds commission, also to take the sum of three hundred and seventy-five pounds cash, and Mr. Corcoran's bills for the balance, fifteen pounds. JOHN O'ROURKE. On the back of this document the following was written :- May 14th, 1888. Received from Mr. Corcoran the sum of ten pounds stg., being deposit upon property Berkeley street, Carlton, balance due three hundred and seventy pounds to be completed in 14 days. J. O'ROURKE. The purchase to be completed in 14 days from date. WM. E. CORCORAN. Opposite the signature "J. O'Rourke," on the receipt a penny stamp had been affixed, bearing upon it the initials "J. O'R." and the date 14 | 5 | 88." It was admitted, in evidence, that the plaintiff had cancelled the stamp; the plaintiff could not say that he had done so with the defendant's authority, nor did it appear at what time the cancellation had taken place. The defendant by his defence, contended that the plaintiff was never ready or willing to complete Neighbour (with him Amess) for the plaintiff: It is contended by the defendant that there is not a sufficient memorandum to satisfy the Statute of Frauds. There is a sufficient memorandum if the receipt be read as part of the document was not properly stamped, it can be used contract. Even if it be assumed that that primarily intended, though it be irregularly stamped. for other purposes, than that for which it is Matheson v. Ross (L.R. 2 H.L. Cases 286), Evans v. Prothers (1 De G.M. & G., 572), [Interleaf Publishing Co: v. Phillips, (1 Cababe and Ellis,) distinguished.] It is not proposed to use this document as a receipt. The two documents read together sufficiently identify the property sold Shardlow v. Cotterell (L.R. 18 Ch. D., 280.) Payment by bill is practically the same as payment by cash; Fry on Specific Performance 147. [Pearce v. Watts (L.R. 20, Eq. 492) and M'Carthy v. Monahan (5 Aust. Jurist 5) distinguished.] HIS HONOR, after stating the facts of the case, and holding that, on the evidence, the plaintiff had not shown readiness and willingness to perform his part of the contract, continued as follows:The contract itself, which was of the date of the 14th May, was written by the plaintiff. It was signed by the defendant, the party to be charged, and who was charged in this action. There were two objections to the contract taken by itself. The first was that the property to be sold was not identified It seems to me that that is a fatal objection. The contract stated, "I hereby agree to sell my property to Mr. Corcoran without further words of description, and these might include all the property of the vendor, real or personal, wheresoever situated. So far as the contract itself was concerned, there were no means of ascertaining in it what was the property that the defendant agreed to sell. This was undoubtedly a fatal objection, as the contract in writing must identify the land the subject matter of the contract. It was one of the conditions of a contract to make it valid under the statute. In another respect, also, the contract, taken by itself was also ambiguous any No and ambiguous in a material particular. The mitted that the initials of the defendant on the stamp principal part of the purchase money was were in the plaintiff's handwriting; but the plaintiff to be paid in cash. The contract was silent could not say whether he affixed them at the time or when it was to be paid. The balance was did so with the defendant's authority. On the whole to be paid by bill, but there was no time fixed for I come to the conclusion that the document has which the bill was to be given. It might be a bill been irregularly and improperly stamped. for one month, or it might be a bill for a year. The application has been made to correct that irreguterms of payment were an essential part of the validity larity in the manner provided by the statute in of a contract within the statute. If the writing did respect to some stamps. This receipt therefore not show the terms of sale, as well as identify the must be rejected from consideration. It has been property, the subject of the contract, it was not a suggested that the memorandum signed at the valid contract, it was not a contract within the statute. foot of the receipt "The purchase to be compleIt was also objected that this contract, although partly ted in 14 days from date," might be taken as part of written, was also partly verbal, and that there was an the contract, and as furnishing an answer to the omission from the contract that it was to be completed objection that part of the terms was omitted from in 14 days. It was not necessary for him to decide the contract. But it could not be so considered. that point. In order to get over the difficulty that There was nothing to connect it with the writing presented itself on the face of the writing it had been on the front part of the paper which contained the proposed by the plaintiff to put in a receipt signed by contract. The other objection that the plaintiff did the vendor (the defendant), and a memorandum not complete the contract in the time need not be signed by the purchaser (the plaintiff). If the terms considered except on the question of costs. The of the receipt could be received, it would remove one evidence showed that the defendant having made this of the objections to the contract, for it undoubtedly contract quickly desired to get rid of it, and adopted identified the property. The words of the receipt means of making appointments to meet the plaintiff were "Received from Mr. Corcoran the sum of £10, and of not keeping them, for the purpose of allowing being deposit upon property Berkeley street, Carlton; the time to elapse within which the contract was to balance due three hundred and seventy pounds." be completed, and that he took advantage of the That description of property in Berkeley-street suffi- lapse of time in order to refuse to perform his agreeciently identified the subject of the contract. But the ment. In that view the defendants conduct was receipt introduced another objection, namely, that it highly reprehensible, and although the plaintiff was was in conflict with the contracts, as it stated the not entitled to judgment in the action, the defendant amount paid on deposit as £10, and the balance due was not entitled to costs. The action will be dismissed as £370. That was absolutely at variance with the without costs. contract signed by the defendant, the vendor, which provided that the whole amount of purchase money was £400, that £10 was to be allowed as commission, and £15 was to be paid by bill, leaving a balance of £375. No doubt this was a small amount. Still the exact amount was essential to be stated in the contract, so that the parties might know what they had to carry out. The difference was a fatal objection to the introduction of this receipt as part of the contract of the 14th May, or to explain it. It introduced a term which was inconsistent with one of the terms of the contract itself. The case, therefore, stood thus-That taking the contract by itself, it was ambiguous in two respects. and was therefore not a valid contract under the statute. And if taken in connection with the receipt, it was also ambiguous. Whether the receipt was introduced or laid aside from consideration there were fatal objections to the plaintiff's case Whether the receipt should be taken into account was clearly determined by the objection that the stamp was not properly cancelled. It was the duty of the defendant to provide the stamp and cancel it. There was a conflict of evidence as to when it was affixed to the receipt. The plaintiff said undoubtedly that it was affixed at the time the receipt was given, but he could not say whether the cancellation of the stamp took place at that time or not. It was ad Solicitors for plaintiff, J. Birtwistle; for defendant, Emerson and Barrow. Before A'Beckett J. IN RE WALLS' SETTLED ESTATE. Nov. 1st. "Real Property Statute 1864." (No. 213) Part V. s.s. 79 89, 101. Sale-distribution of proceeds of sale--family arrangement. George Wall, by his will, gave the beneficial intorest in all his property, to his wife during life or widowhood, with remainder (according to one construction of the will) to his nine children. The tenant for life filed a petition for the sale of the settled land. Subsequently to the filing of the petition, but before the hearing an agreement was entered into between all the beneficiaries (all being adults), that the proceeds arising from the sale should be distributed amongst them in certain proportions. No order made, it not being the province of the court to carry out a mere family arrangement. Petition for the sale of land settled by the will of George Wall deceased. By his will, dated 31st December 1884, George Wall devised and bequeathed all his property (com prising the land above mentioned) to trustees upon trust to permit his wife to enjoy the same until death or second marriage. On the occurrence of either of the last mentioned events he directed his trustees not to sell his said land, but to lease the same, and divide the income amongst his children. He made no provision as to the subsequent devolution of the estate. The petition had been filed by the tenant for life on the 15th October 1888, and the beneficiaries, who were all adult, had consented to the prayer. Before the hearing, on the 26th October 1888, all the parties interested had executed a written agreement to the effect that, in the event of the Court decreeing a sale, the proceeds arising from such sale should be divided amongst them in certain proportions. children, who were married, had been examined as to their consent under sec. 114 of the "Real Property Statute 1864." Four female Higgins, in support:-This is an application for the sale of settled estate. There appears to be an intestacy as to the corpus of the estate; this, however, is not material as all the beneficiaries, on any construction of the will, consent to the application, and are before the court. The fact that the parties have entered into an agreement dealing with the disposition of the proceeds of the sale does not affect the present application. Dr. Madden consented on behalf of the trustees. Agg, on behalf of the beneficiaries, other than the tenant for life, was prepared to consent to such an order for sale or would include an order for the payment out of the proceeds of the sale to the persons who were absolutely entitled under the agreement. HIS HONOR.—I shall make no order on this application. The Real Property Statute was not intended to be made an instrument for the carrying out of a family arrangement such as is designed by the present application. The beneficiaries examined before me did not merely consent to a sale of the land, they consented to that plus something else, namely, that they should receive their proper share of the proceeds. If the court were to make such an order as is required it might impose on itself the duty of seeing that the proceeds were disposed of in accordance with the agreement between the parties. I do not think that such is its duty. Moreover, if this matter be dealt with by the court it will simply lead to expense, as the parties have the means of carrying out their wishes, as regards the sale and the distribution of the proceeds, without the intervention of the court. The court declines to carry out a family arrangement. Solicitors: Woolf and Destrée. SITTINGS IN BANCO. Sept. 13, 20. (Before Higinbotham C.J. Williams and Holroyd J.J.) Q. v. PANTON EXP. THE FARMERS' PRODUCE COMPANY LIMITED. OF Corporation Knowledge of Servants. Per Higinbotham C.J., and Holroyd J. (Williams J dubitante). By sec. 6 of the Interpetation Act, No22, the word person in sec. 59 of the Public Health Amendment Act, 1883, No. 782 includes a corporation, for there is nothing in that section repugnant to or inconsistent with that interpretation. A corporation may be prosecuted and fined under that section for knowingly offering for sale unwholesome food. Knowledge on the part of servants authorized by the corporation to expose food for sale is the knowledge of the corporation. Order nisi to restrain the justices at Melbourne from enforcing a conviction against the Farmer's Produce Company Limited, under sec. 59 of the Public Health Amendment Act, 1883, which imposes a penalty on any person knowingly offering for sale unwholesome food. The prosecution was at the instance of John Taylor, the inspector of the Central of the justices by which the company was fined £7 Board of Health. It was contended that the decision and £3 3s. costs was bad, inasmuch as the incorporated company could not be sued for the offence, and if it could that there was no proof of knowledge by any of the company's servants that the meat was bad. Hodges (to show cause).-By the Interpretation Statute, No. 22, sec. 6, "person" includes " corporation," unless there is something repugnant or inconsistent with that interpretation in the act. In England there is no such act, and therefore cases like Pharmaceutical Society v. London &c. Supply Association 5 Ap. Ca. 857 do not apply, but even there a corporation may be fined and have to pay damages per Lord Blackburn at page 869. In England prima facie "person" does not include corporation," just the contrary to what is law here. 66 Barrett (to move the order absolute).—-It must be proved under this section that the party had knowledge, and that cannot be presumed against a corporation. The corresponding sections of the English act omit the word " knowingly." Justices Act in default of distress imprisonment may Under the follow, but a corporation cannot be imprisoned. Knowledge is the gist of the matter, Shillito v. Thompson 1 Q.B.D. 12, Reg. v. Stevenson 3 F. and F. 106 Constructive knowledge is not sufficient. Abrath essential for a criminal offence cannot relate back to v. N.E. Railway Co. 11 Ap. Ca. 247. The knowledge crime must be the direct act of the party charged, a corporation, Comyns' Digest, Vol. IV., p. 347. A R. v. Thomas 1 Q.B. 702. Metropolitan Bank v. Pooley 10 Ap. Ca. p. 218-The person guilty under this section could be punished without implicating the company. Hodges (in reply).-According to the other side the price of goods sold and delivered could not be recovered against a corporation. A corporation in Interpretation Act, No. 22, sec. 6--Public Health contemplation of law has a mind. If a person had Amendment Act 1883, No. 782, sec. 59—Person-authority to do an act he is an officer whose know |