be manifestly unreasonable, it does not vitiate the contract merely because it is not expressly authorised. As to the reasonableness of the condition in the present case it is clear on the evidence that the vendor considered the credit at five per cent. as for the benefit of the purchaser. The rate of interest was low and was offered as an attraction not required for the vendor's advantage. The mortgage was executed, and the provisions enabling the purchaser to return the notes should he wish to complete may have presented itself to the mind of the agent as advantageous to his principal, a facility given to the purchaser which might induce him to settle for cash." Here the rate of interest and the rate of rebate were the same, namely, 5 per cent. Assuming that the money market remained in the same condition, the vendor would obtain the whole of the purchase money at the same rate as that on which he was receiving interest, and he would suffer no loss. It was said that this was in excess of the power given to the agents, as it gave an option to one only of the parties. It was an option, however, which might be reasonably considered to be the duty of the agents to offer to the purchaser in the interests of the vendor. If the agents had any discretion at all it would seem to be entirely reasonable that on the terms of interest and rebate they should give an option to the one party which would be for the benefit of that party, and in the interests of their principal. In the case of Jordan v. Walker (11 V.L.R. 353), the rate of interest was lower than was contemplated by the vendor. This objection also failed. The judgment appealed from is correct that the agents had not exceeded their authority, and the appeal will be dismissed with named by his principal-that is, that his authority was limited to buying at or below the prices named by his principal. In other respects his authority was ambiguous, and because it was ambiguous the court held that the agent had a discretion as to which interpretation he would put upon the ambiguous document. He had a discretion to put one interpretation of two. There was nothing whatever in that case which departed from the principle, which I think was as clearly established as any proposition of law, that an agent authorised to act by special instructions must act substantially within the limits of those instructions. I am in some degree comforted and consoled in being in a minority upon this point by the fact that I am following to a certain extent the decision of a very learned judge who adorned the bench for a long period of years, and who was engaged for the greater part of his working life in deciding, among others, points of this description. I refer to Mr. Justice Molesworth, who, in the case of Breese v. Lindsay, decided this point without any qualification or any doubt that an agent authorised by his principal to sell for cash could not sell on credit; that he must sell for cash. The head note to that case is, "Where an authority is given to an agent to sell for cash, and he sells giving a month's credit, that is a breach of his authority, and specific performance cannot be enforced." I do not know that it was necessary in this case to go so far as that. But if it were necessary to go as far as that, I am not prepared to say that I do not concur with the judgment of the very learned judge, Mr. Justice Molesworth on that point. But I do not think that it is necessary to go that length here. I am willing to state his judgment and draw the conclusion he drew WILLIAMS, J.—I regret that I differ in toto from the from the same basis as that on which the decision of learned judge who tried the action, and from the the majority of the Court was based. Assuming that majority in this Court. I desire to observe at the an agent has a discretion to depart from his instrucoutset, that the agents in this case could not be con- tions in so far as he reasonably might do so, he is sidered in any sense of the term as general agents for bound to act for the interests of his principal. He is the sale. They were agents employed to sell specified bound, in the reasonable exercise of his discretion, to land under express and special instructions. Those act for the interests of his principal. To ascertain instructions were reduced to writing by the agents, whether he has done so we must look at the contract, and were contained in the document which was put in and regard the language of the contract in each parevidence. That document, after specifying the land ticular case. Then, what has been done in this case? to be sold, went on to authorise and empower the de- The contract provided tnat, upon acceptance of title, fendants to sell the land at £10 per acre, half cash, the purchaser was to be entitled to possession of the the balance at 5 per cent. for two or three years. I property. I property. That is a very important point to be retake it that an agent so authorised by express special inembered in considering whether there has been a instructions must act substantially--I do not say in a reasonable exercise of discretion in the interests hard and fast way--but he must act substantially of the principal. The title here is equivawithin the limits of these instructions. A trifling excess here, or a trifling excess there, would probably not affect the mere exercise of his authority; but substantially he must act within the limits of the conditions given to him. I have read carefully the judgment of Mr. Justice Blackburn in Ireland v. Livingstone, and I do not think that case establishes a different proposition. That was a case of the purchase of goods, and the Court there held that the agent was bound to purchase the goods at the prices costs. lent to a Crown grant-nothing could be simpler. It was admitted that the vendor had the Treasury receipts for the land, and under the 57th section or the Transfer of Land Statute that was equivalent to a Crown grant, for he was entitled to the land, and the Crown grant would follow, as a matter of course, on the Treasury receipt. Under the contract sued upon here the purchaser could have accepted title within 18 hours, and he probably would have accepted it. He could then have entered into possession, and dealt with the property as his own in various ways. All the security as against him that the vendor had in the way of payment of any portion of the purchase money was the £50 deposit. The rest of the purchase money was postponed for a period, subsequent in all probability to the time at which he took possession of the property. I do not call that a reasonable exercise of the agent's discretion, assuming that he had the discretion which was contended for. I call it an unreasonable exercise of discretion, and one not in the interests of the principal, but against his interests. Reference was made to a portion of the evidence given by the defendant in his examination, in which he said he never expected to get all cash. I think an erroneous view has been taken of the meaning of that passage in the evidence. One part of the case for the defendant was that after he gave these instructions they were reduced to writing; that he afterwards countermanded a portion of the instructions, and instructed the agents to sell for all cash and not for bills, or to sell on terms of credit. His statement in reference to not expecting all cash referred to that which was quite a distinct defence which he set up, and on which he had been unsuccessful, and with which we are not now concerned. The evidence had no relation whatever to the part of the case the Court was now considering, whether the agent acted upon his instructions to take half cash. Upon that point, therefore, starting on the same basis as the majority of the Court did, and assuming that the agents had discretion to act substantially outside the instructions, as to which I have very grave doubts, when the nature and terms of the contract were looked at I am of opinion that the exercise of discretion was unreasonable, and was not in the interests of the principal. Reference has been made to a usage among land agents. Assuming that the evidence of usage is admissible so as to bind the principal I think no usage has been established. Each agent gave a different view of the usage -no two witnesses had agreed. There was no uniform usage established, and I do not see how it could bind the vendor. I have no doubt on the first objection, but I have some doubt as to the second. It is occasioned by a passage in the evidence as to whether the 12th condition, that the purchaser should have power to retire the bills, was in excess of the authority of the agents. It was to be borne in mind that this is not one of the printed conditions. It was inserted in manuscript by the agents on their own mere motion. It was not pretended here that the principal saw these conditions, or that he ratified any excess of authority by the agents. The doubt which I entertain was caused by a passage in the evidence of Mr. George Arthur Price, in which he said that the defendant stated that "he would not take less than £10 an acre, but for the balance he was not particular; he would leave us to do the best we could, the interest £5 per cent. and two or three years if required." If the interpretation was given that the agents had authority to do the best they could, I agree that a reasonable construction of it was that they were to sell the land and take the balance in bills extending over two or three years. If they could better it for the vendor they were to do it, but it did not give the agents a roving commission, and certainly did not authorise the agents to do worse for the vendor than he stated his terms to be. If that was the construction to be placed on the condition, then the agents had again exceeded their authority in inserting this manuscript condition, because, instead of doing better for the vendor, the agents had done worse. The agents gave power to the purchaser to retire the bills at any moment he chose, and to get a rebate of 5 per cent., without any notice to the principal. The purchaser might exercise his option at any time during the currency of the bills. He was not required to give any notice to the vendor, so that the vendor might look out for another investment for his money. The vendor was obliged, in fact, to keep the bills. He could not discount them or deal with them in any way; he was bound to have them, so as to be able to give them to the purchaser when they were demanded from him. This, I think, a most unreasonable and outrageous exercise of discretion. I do think that, although agents are not bound by the exact letter of their instructions, they ought to exercise a discretion substantially within the limits of their instructions. I think it is necessary that the Court should hold to the principles that have been established, having regard to what has lately taken place in this colony. Cases had come before the Court in shoals of late in consequence of what has been termed the "land boom" which has prevailed here. In many of the cases the agents had sold land without any authority whatever, and in others they had exceeded their instructions, and had sold land on terms and at prices at which they were never authorised to sell it. I think that the Court should watch and see whether a land agent did not assume to exercise an authority which he was not justified in assuming. To such an extent has this abuse of authority gone that the more respectable firms of agents have been endeavouring to get a measure passed through Parliament rendering it necessary that for the sale of land the instructions from a principal to his agent should be in writing. I only mention this as a reason why the Court should be very slow to countenance the view that agents were authorised to depart from the letter of their instructions, or exercise such a wide discretion as was contended for here. I only desire to add that if the first condition means as was said, that the contract for sale and purchase was to be signed within a month, that only made things worse, for the purchaser might go into possession in 48 hours, and the contract would not be signed till a month afterwards. Solicitors for the defendant, Crisp, Lewis and Hedderwick; for plaintiff, Eggleston and Derham. IN CHAMBERS. (Before Holroyd, J.) FRANKLIN V. FRANKLIN. 14th December. Judicial Separation--Costs De Die in Diem-Order-Where a petition is accepted and the facts are in dispute a judge has no power to make an order that the costs De Die in Diem when taxed shall be paid into the Prothonotary's office to abide further order. Application on behalf of the wife, the petitioner in a petition for judicial separation, for costs De Die in Diem. Mr BARRETT, in support, asked for the usual order, Mr LEON to oppose. The usual order should be varied in this case by having the costs when taxed paid into the Prothonotary's office to abide further order. The facts, as disclosed by the petition and answer, are peculiar. The parties were married in 1838 and are now 72 years of age. The act of cruelty upon which the petition is founded took place in 1876, when the petitioner alleges the respondent attempted to poison her; she immediately left the respondent and they have lived apart ever since, the respondent contributing to her support. tuting proceedings is a question of fact which cannot be determined until the evidence is closed. MR LEON. The acceptance of the petition means that the petitioner has a bare right to come into the jurisdiction, but when statements are made denying the statements in the petition then the order I ask for may be made. HIS HONOR. The application in Rogers v. Rogers was supported upon outside grounds on affidavit showing that the woman was an improper woman, which was not denied and therefore was not in dispute. Here the facts are in dispute. MR LEON.-Here the petitlon shows that the petitioner founds her right to relief on an act ef cruelty which took place twelve years ago, and she could not, under the present form of the petition, be entitled to any form of relief. The petitioner would not be damnified if the order was made. MR BARRETT.-Rogers v. Rogers does not apply, for in that case the wife admitted the charge of adultery. If application for alimony were made to the Police Court the husband would say that he had a home for his wife, and the jurisdiction of the magistrates would be ousted. A wife in fear of a repetition of the act of cruelty alleged in this petition would never dare to return to the home of her husband. HIS HONOR said :-For the reason I have intimated I think the application made by Mr Leon cannot be granted. It was clear from the undisputed HIS HONOR,-Is not the object to obtain per fact in Rogers v. Rogers that the petitioner could not manent alimony? MR LEON. No. The police court is the proper place for that. The cruelty alleged must be of such a nature as would lead the petitioner to reasonably believe that there was fear of bodily danger, but this cannot be set up in this case as the parties have not lived together since 1876. Where it appears that the proceedings are instituted for the purpose of making costs the order asked for by me will be made. Rogers v. Rogers, 34, LJ, (P. & M.) 87. HIS HONOR.-There is one difficulty about this application, and that is that this petition has been accepted, which shows that in the opinion of one of the judges of this court the petition is a proper one. MR LEON. The petition was accepted ex parte, but there are now further materials before Your Honor. The case is launched by the petition, but when the petition is looked at together with the answer I say there are fresh materials which might lead the Judge to alter his opinion. HIS HONOR.-I am not sure that the answer can make any difference. The question whether the proctor has sufficient grounds to justify him in insti by any possibility succeed. Here there is something to be argued. I think the case stands in the same position as when the Judge accepted the petition for the fact of the answer denying the petition does not affect the matter at all. Order made in the usual form. I certify for counsel. PROCTORS -For petitioners, F. Barrett; for respondent, Lynch, M'Donald, Stillman and Keep. Before Holroyd, J. BRAILSFOBD V. TOBIE. 20th Dec. Order of Supreme Court, Order XIX. rr. 4, 24-Order XX, r. 7-Alternative pleading-Inconsistent defences-A party will not be permitted to set up in the alternative two inconsistent sets of facts when one set or the other must be known to the party pleading to be false. Application on behalf of the plaintiff to strike out either paragraph 3 or paragraph 4 of the defence at the defendant's election on the grounds that— 1. The said paragraphs set up contradictory and antagonistic allegations in fact. 2. It is embarrassing, unfair, and oppressive to the plaintiff that both the said paragraphs should be allowed to stand together. 3. It tends to prejudice and embarrass the fair trial of the action to permit both the said paragraphs to stand together. The pleadings were as follows: STATEMENT OF CLAIM. The defendant says that 1. By deed dated the 28th day of September 1888 and made by and between the plaintiff and the defendant, the plaintiff sold and the defendant purchased (among other things therein mentioned), all the plaintiff's interest in and to the furniture, fixtures, and trade utensils then in or upon the Shepherd's Arms Hotel, Smith-street, Fitzroy, together with the then existing lease and goodwill of the said hotel and the business thereof for the price or sum of £2,350. 2. The plaintiff duly delivered up to the defendant, who has received and has since retained, all the said property so sold as aforesaid, and the defendant has paid to the plaintiff portion of the said price or sum, namely £2,275, and no more. 3. The plaintiff claims £75, balance of the said price agreed upon as aforesaid. DEFENCE. The defendant says that- 1. As to the first paragraph of the Statement of Claim, save that she alleges that the sum of £2,200 and no more was the price or sum agreed to be paid by the defendant to the plaintiff as purchase money of the property therein mentioned, she admits each and every allegation contained in the said first paragraph. 2. As to the second paragraph of the statement of claim she admits that the plaintiff duly delivered up to her the property sold and that she received and has since retained all the said property, and that she has paid to the plaintiff the sum of £2,200 and no more as the purchase money of the said property, and has repaid to the plaintiff the sum of £75 paid by the plaintiff to one, Mrs Wood, under the verbal agreements set out in the particulars to the third paragraph of this her defence. Save as aforesaid she denies each and every allegation contained in the said second paragraph. should be £2,200 and no more; and subsequently thereto, and also prior to the making of the said deed, application was made by the plaintiff to the said Mrs Wood, the owner of the said hotel, for leave to transfer the lease of the said hotel from the plaintiff to the defendant; and the said Mrs Wood demanded the sum of £150 as consideration for the granting of such leave, whereupon it was verbally agreed by and between the plaintiff and defendant that the plaintiff should, in the first instance, pay the said sum of £150 to the said Mrs Wood, and that the defendant should repay to the plaintiff the sum of £75-being one half of the said sum of £150. Ry mistake the purchase money of the said property was set out in the said deed at the sum of £2,350, whereas in truth and, in fact, the purchase money agreed upon was the said sum of £2,200 and no more. In accordance with the said verbal agreements the plaintiff paid the said sum of £150 to the said Mrs Wood, and the plaintiff accepted the same as and for the purchase money of the said property, and the defendant repaid to the plaintiff the said sum of £75 and the plaintiff delivered up to the defendant the said property. Alternatively 4. The defendant says that she was induced to execute the said deed by the fraud and misrepresentation of the plaintiff. Particulars of the fraud and misrepresentation are as follows: The plaintiff, at the time of the execution of the said deed, requested the defendant, and the defendant agreed, to allow the sum of £2,350 instead of the sum of £2,200 to be inserted in the said deed as the purchase money of the said property for the purpose of deceiving one whom the plaintiff was then about to marry and whom she has since married, and leading the said -to believe that the plaintiff had received a larger sum on the sale of the said property than she had in fact received, and for no other purpose. MR ISAACS, in support, after reading the pleading, was stopped by the Judge. MR ANDERSON to oppose. By Order XIX r. 4 a party is compelled to set out all the material facts on which he relies. In this instance the defendant says that the purchase money in the deed is an incorrect amount and that the error in it has arisen either through mistake or by fraud. It is not contended that both can be proved, but that the defendant is entitled to retain both defences so that she may be in a position to avail herself of the defence which will fit the facts adduced at the trial. Order XIX r. 24, Order XX r. 7, and the cases of Owen v. Morgan 55 Ch. D. 492, and Bagot v. Easton 7 Ch. D. 1, show that alternative defences can be pleaded. HIS HONOR said.-I can quite conceive of cases where it would be not only allowable but for a proper party to claim alternative relief, especially where on 3. As to paragraphs 1 and 2 of the Statement of Claim the a given state of facts it may be doubtful as to what said deed was made by mistake. Particulars are as follows: Prior to, and at the making of the said deed, it was verbally agreed by and between the plaintiff and defendant that the purchase money of the said property relief he may be entitled. In a case of this nature, however, I think it would be most improper to allow the defendant to plead as she has done. The actual facts must be within her own knowledge, and that being so she has set up two sets of facts inconsistent with one another. If this were allowed it would be Dec. 13, 1888 Certificate of title; Plan in margin; Figured dimen sions; Abuttals; Negligence in survey; General damages; Hard judgment; Mitigation; Costs. Where the figured dimensions on a plan in a certificate of title and the fact that the boundaries are shown by straight lines would lead to a wrong inference as to the dimension of the land but abuttals are shown correctly, the registered owner is entitled to all the land which actual measurement on the ground would show to lie between those abuttals. Damages for negligence in survey by omission of some of the figured dimensions through which the plaintiff is left with an apparent title to less than he really possesses are general damages and may be recovered under the general head damage though not specifically alleged. Per Higinbotham, C.J.-When the objections to a judgment cannot be sustained on legal grounds the Full Court has no power to mitigate the effect of what they may consider a hard judgment. Per Williams J.--The fact that a case is shaped as to damages in such a way that it may mislead the defendant and prevent him acknowledging some liability may be a ground for refusing costs to the plaintiff. Appeal from a' Beckett, J. This was an action arising out of an alleged error of 4 inches in the position of a wall as shown in the plaintiff's certificate of title, said to be caused by the negligence of Mr. Ellerker, who was employed by the solicitors of the plaintiffs to make a survey of the property. The defence was, in the first place, that there was no negligence; and, secondly, that no damage resulted, as the plaintiffs have got all they are entitled to under their certificate of title. In October, 1885, one of the plaintiffs bought a property described in his contract as a piece of land having erected, &c. a frontage of 18ft. to Roden street, &c., whereon is from 18ft. to 18ft. 4in., measuring to the centre of The property, as occupied, widened out a party wall between the plaintiffs' house, which stood back from the street a short distance, and a house on the adjoining land. Before getting his transfer from the vendor the plaintiff applied to a building society for an advance, and was told he must have the property surveyed. Mr. Ellerker, the society's surveyor, prepared a plan, for which plaintiff' paid £2 2s., and it was in the preparation of this plan that negligence was charged. The plan showed a frontage of 18ft. to Roden street, and the words "centre of party wall" were written along the eastern boundary at right angles to Roden street. From these words and figures the plaintiffs' solicitor |