concluded that the land was only 18ft. wide through out and prepared a transfer accordingly, showing 4 of the party wall on the land to be transferred, and the land to be transferred as 18ft. in width. On the registration of this transfer a Certifi. cate of Title issued to the Building Society as Mortgagee for the plaintiff in which the map on the margin showed land having 18ft. frontage to Roden Street, colored red, and on part of this the party wall was colored blue as if it were within the 18ft. frontage. All the lines on the plan parallel to the eastern boundary and the eastern boundary itself, so far as appears, were straight lines. The land colored blue was stated to be subject to an encumbrance in favor of the proprietor of the adjoining land who had the right to use it as a party wall. The defendant contended that this Certificate accorded with the facts and gave the plantiff all they were entitled to and A'Beckett, J. agreed generally with this contention but held that through the negligence of the defendant the plaintiff was left with an apparent title to less than he really possessed, and that he could not show title to the full area without satisfying a purchaser of the correctness of their measurements of the buildings on the land by actual measurement on the ground, that the discrepancy might subject them to inconvenience and involve them in litigation, and that if the wall were destroyed he might possibly lose his title to the 4 inches. The plaintiffs claimed £500 damages and under the head of special damage claimed £10 for loss of land, £100 for loss of party wall and £250 depreciation in value arising therefrom. The learned Judge held that no special damage had been proved but directed Judgment to be entered for the plaintiff for £50 and costs, the sum of £50 to be reduced to £5 if within 3 months the defendants procure at their own expense an amendment of the certificate.

From this Judgment the defendant appealed.

Hood, Mitchell and Coldham (for defendant, appellant.) The damages for defective title are not claimed [Williams, J.-He claims general damages. Higinbotham, C. J., But the learned Judge says it is only a possibility of inconvenience and litigation.] Yes: It is merely that the Certificate does not show everything on its face. [Williams, J.-It is clearly wrong if damages are given for loss of land but I think the damages are given for what it would cost to put it right.] We offered to amend but not to pay costs. It is merely that the Certificate leads to a wrong inference and if he had said that defendants might have settled the action but plaintiff was evidently advised that he had lost the land which is not correct. The Titles Office recognise the wall as an abuttal and the abuttals govern. Small v Glen 6 V.L.R. (L.) 154. [Williams. J. It is merely that he has not got such a good picture.] The schedule to the Transfer of Land Statute shows it only costs £1 to

rectify a certificate. The learned Judge made a mistake as to facts. He treats Mr. Ellerker as retained for conveyancing purposes. The plaintiff got his loan from the Building Society-The plaintiff did not employ defendant. This is clearly special damage which should have been claimed and evidence given to show what it would cost to put certificate right but no such evidence was given.

Isaacs and Smith (for plaintiff). Mr. Ellerker was clearly engaged by plaintiff. The surveyor was asked to make a plan. He must have known it was for Title. Cann v Wilson 39 ChD 39 ; Heaven v Pender. 11 QBD 503. Weoffered during the trial to take nominal damages if they would rectify it. [Williams J.: If the judge choose to give you £50 I think you may be entitled to it for costs of putting the certificate right and a lump sum for inconvenience but your claim on should not have allowed costs.] account of having lost the land is unreasonable and I

Hood (in reply). These damages are not claimed and £45 of the £50 is clearly special damage. We are entitled to appeal against costs if the judgment is based on a wrong ground or at any rate this ought to influence the Court in dealing with the other point.

Higinbotham C.J. We think the objections taken to this judgment have not been sustained on legal grounds and in saying that for myself I do not concur with the learned Judge in the view he took of the facts of the case. A more unreasonable action than this has seldom been brought from the facts which appear in evidence and if it were in the power of this Court to mitigate the effects of such an action brought against the defendant I would be well disposed to exercise it. I do not think we have such power. The plaintiff proved a cause of action and the learned Judge found general damages to the extent of £50 to be reduced to £5 in the event of defendant rectifying this trivial paltry mistake in the plan of survey within 3 months. We see no reason for disturbing that judgment and the appeal will be dismissed without costs and we shall extend the time during which defendants may correct this error to 3 months from this date.

Williams J. I do not know that I agree that this action should not have been brought. It would be far more satisfactory to the owner to have the certificate without any doubt or discrepancy and that is what he would have got if defendant had done his work properly. Through this neglect plaintiff has got an inferior Certificate of Title though when spelt out carefully it gives him all he is entitled to. The point I feel as hard is the way in which the case was shaped as to damages. It was certainly misleading and may have prevented defendant from acknowledging some liability and paying into Court or getting the certificate made right and on that ground I would not have given costs. But strictly technically and legally the plaintiff is entitled to hold these damages

which are in the nature of general damages and are therefore recoverable under the head of damage though not specifically alleged. I do not think we can disturb the judgment but I quite agree that the appeal should be dismissed without costs.

Wrenfordsley J. I quite agree with the observations of the Chief Justice with regard to the merits of the action.

(Before Higinbotham C.J., Williams and Holroyd, J.J.) IN THE MATTER OF A TRANSFER FROM GEORGE ANNAND, A LUNATIC, BY HIS COMMITTEE, AND IN THE MATTER OF THE TRANSFER OF LAND STATUTE SECTION 135. - Sep.27; Dec. 12,14,1888 Lunacy Regulation Act 16 and 17 Victoria c. 70, sections 125, 147--Lunatic resident in EnglandLand in Victoria--Order for sale-Approbation of court-Imperial Act extending to Victoria Order of foreign court An order of the court in England England made under section 125 of the Lunacy Regulation Act 16 and 17 Victoria c. 70, that "certain land of a lunatic in Victoria should be sold, and that the committee be at liberty, with the approbation of the Master in Lunacy, to take such steps and proceedings as might be necessary for the purpose of selling and realising the estate of the said lunatic in Australia and for the remittance to England of the proper proceeds of such sale," does not empower the committee or his attorney under power to sell and convey the land without the approval of the Court or the Master, but quoad the committee is merely a direction to take preliminary steps towards effecting a sale with a view to afterwards obtaining the approval of the Court to the sale.

Semble: If the order did so authorise the committee it would be ultra vires of section 125.

Section 125 of 16 and 17 Victoria, e 70, by section 147 of that Act extends to this colony notwithstanding that since its enactment Victoria has a Constitution and local Lunacy Act.

The order of a foreign court should be construed most favorably to the jurisdiction of the Court.

Summons under section 135 of the Transfer of Land Statute referred to the Full Court by Higinbotham, C.J.

became lunatic in Victoria, and was sent for medical treatment to England where he remained. On 9th January, 1856, George Annand the elder died, and on 22nd November, 1864, George Annand the younger was found lunatic in England, and on 10th December, 1864, G. B. Yates was appointed but hedying on 12 April 1871 H. G. Yates the present applicant was appointed committee in his place. On 12th May, 1885, an action for partition was commenced in this court by Joseph Annand against the lunatic; on the 18th May, 1886, a commission for partition was issued, and on the 3rd December, 1886, there was an order on further directions giving one-half the land to each. On 23rd May, 1887, Lord Justice Lindley, in England, made an order under 16 and 17 Victoria c 70, sections 125 and 147 and 30 and 31 Victoria c. 87 section 13, which order is set out in the judgment of the court (infra.) On 15th July, 1887, a power of attorney was executed by Yates in England, which appointed Ashley and Meudell his attorneys and authorised them to take such steps as might be necessary for the purpose of selling and realising the estate of the lunatic in Australia and remitting the proceeds to England and also to execute deeds, documents, &c., to convey the land. On 11th October, 1887, Ashley and Meudell lodged an application to bring the lands under the Transfer of Land Statute, and on 29th January, 1888, a Certificate of Title, issued in the name of George Annand, the lunatic. Subsequently Ashley and Meudell sold a portion of the land to the Victorian Railways Commissioners, and on the 6th March, 1888, they executed a transfer of this part, which transfer was, on the 16th March, offered to the Registrar for the Registration, which he refused. On 3rd May an application was made to the Registrar to state the grounds of his refusal, and on 18th May the grounds were sent by the commissioner's direction. The case was argued on September 27th, but the Court requiring a fuller statement of the Registrar's grounds, it was re-argued on December 12th.

The Registrar's reasons briefly were that this colony had an independent legislature and local laws colony of a lunatic estate here or elsewhere, and had providing fully for the disposal of real estate in this a system of title to land by registration peculiar to this colony, and that it was therefore highly improbable that the order of May 23rd, 1887, was intended to authorise the sale of the land without proceedings being first taken to obtain the sanction or assistance of the Supreme Court here and without strict conformity to the requirements of the local law governing the title to and disposition of the land, that the wording of the order did not authorise a sale on the authority of the order only, but contemplated the taking such steps and proceedings as might be necessary for the purpose of selling land in Australia," and should be so construed.

Weigall (for the applicant) objected.

PER CURIAM. --Nemo est haeres viventis --We regret we cannot hear you,

Higgins and Agg (for the Registrar). The discretion of the Lord Justice cannot be delegated to the committee, and a fortiori cannot be to the attorney of the committee. The order may mean with the approval of the Lord Justice. The committee is to take "the proper steps for the purpose of selling the land." He has not taken the proper steps by our law. There ought to be a local finding of lunacy and a power of attorney executed in accordance with the requirements of the Transfer of Lands Statute. In re Eisenstadter Argus, 6th December, 1865-Until 16 and 17 Vic. c 70, the Lord Chancellor had under his general jurisdiction only power to administer. So here he must show he comes strictly under the Statute The Court must sell, and cannot authorise committee or anyone else to sell. In re Harvey, 21 Ch. D 123, lays down this rule under the Settled Estates Act.

:

The power of Attorney is approved of by the Master in Lunacy who had no power to do it. He could only approve of a power of attorney giving a manual duty to some person here. The lunatic is entitled to the personal approval and judgment of the Lord Chancellor. Whenever the Master is to do anything independently the Statute says so Sections 55-95. [Holroyd, J. It seems to me that the Committee cannot sell without the approval of the master but the committee or his attorney are to execute the necessary conveyance after the approval and report of the Master and consequent approval of the Lord Chancellor.] Assuming that the order does give power to the Committee to sell it does not contemplate anyone else selling but merely that somebody else may execute documents and so the master was wrong in approving of the power giving Attorney the same power as the Committee. Again this land is sold for railway purposes not building purposes. [Holroyd, J. Building purposes does not necessarily mean building houses.] Next the proper proceedings have not been taken. This Act was passed before our Constitution Act and was not intended to apply when there is a Constitution. [Higinbotham, C.J.: In 1853 we had Legislative Constitution. [Holroyd, J. And so had Canada.] The Act mentions "Dominions plantations and Colonies." It is submitted that "Colonies means "Crown Colonies." [Higinbotham C.J: Surely not.] "Takesuch proceedings" did not mean to override our legislation on Lunacy. Section 166 of our Act gives the same power as Section 125 of the English Act. They ought to have had Yates appointed as Committee by the Victorian Court. In re Crozier 13 VLR. 362. The lunatic was domiciled here and his land is here. Again they have not followed Section 113 of the Transfer of Land Statute. [Holroyd, J. Section 136 says forms substantially the same will do.] This is a

:

16th Feb. 1889.

Form 16 calls attention to the donor of the power and then the Attorney is to deal with land under the Act Fitzgerald v. Archer 1 WW and a.B (L) 40. The Court will not interfere under Section 135 un'ess the applicant's title is quite clear.

The form used

Weigall (for the applicant:) The class of objections that the order of the English Court was not proper and that even if it was it contemplated further steps in England by approval of the Master or the Court should not be considered. There is no evidence whether a proper sale has been mentioned or approved in England. The question really is can the Lord Justice for Lord Chancellor in England order land in Victoria to be sold without the consent of the Victorian Court. [Higinbotham; C.J.: And by an application not in conformity with Victorian forms.] These attorneys were recognised when the land was brought under the Act. The answer to the only question is that there is a clear overriding power, [Holroyd, J. When exercised in pursuance of the Act. Higinbotham, C,J. An executor has to obtain probate here to deal with property here.] That is because English Law has not said that English probate shall apply here. We are not to go into questions of practice of English Court. [Higinbotham, C.J.: Here we have a different system of Title and a public officer may be entitled to say to the English Judge "comply with the forms of the local law."] The point would be exactly the same under the old law. here is substantially the same. The greater includes the less. To have the man found lunatic here it would be necessary to have a jury of 12 men and would lead to great trouble as was found in re Crozier 13 V.L.R.362 and loss of time and market. Then the English Act effects the very object and is of the greatest assistance and in the best interest of the lunatic. [Holroyd, J.- Does the order authorise delegation to an Attorney? The descretion of the Lord Justice cannot be delegated to a Committee nor by the Committee to an Attorney and no order can do it.] This Court should not be asked to criticise the judgment of the English Court for the argument applies to lands in England and it would therefore really be an appeal from the Lord Justice in England on the ground of mistake in law. [Higinbotham, C.J.-This argument goes to his jurisdiction not to his discretion only. Holroyd, J.Suppose the Committee here and this Court made a similar order as to this land, could not he take the objection that the Court had no jurisdiction to make the order.] Yes, but this is a foreign Court and this Court is unacquainted with the proper practice. [Williams, J.-It is a question of power not practice. Higinbotham, C. J.-There is no disrespect in questioning the jurisdiction of a foreign Court even the House of Lords where it is not a Court of Appeal, where it is consistent with our Statutory duty.] A judgment of a Foreign Court cannot be questioned or ground of want of jurisdiction. It is to be assumed,

till evidence rebuts it, that it has acted properly and that the judgment is correct. Taylor e. Ford 29 L.T.N.S. 392, Meyer v. Raite 1 C.P.D. 358. The sale is with the approval of the master because he approves of the power of Attorney allowing it. The order says the proceeds are to be remitted to England which evidently contemplates carrying out the sale. The Registrar allows the land to be brought under the Act and then says we cannot deal with it. The object of the English Act is to abolish the necessity of ancillary proceeding in our Court. Costs should be born out of Assurance Fund at all events, Act No. 872 Sect. 72.

The judgment of the Court was delivered by Higinbotham C.J This is a summons under Sec. 135 of the Transfer of Land Statute calling upon the registrar to substantiate and uphold his reason for his refusal to transfer certain land. The grounds stated by the registrar cover several points which it is not necessary to deal with. The applicants for the transfer are persons appointed under a power of attorney by the committee of George Aunand who was declared by the English Court in 1864 to be a lunatic. In May 1887 Lord Justice Lindley made an order now before this Court. It was made under Sec. 125 of the Imperial Act 16 and 17 Vic. C 70, the powers contained in which were extended by Sec. 147 to all lands, etc., of a lunatic in Her Majesty's dominions plantations and colonies except Scotland and Ireland. Section 125 provided that

"Where a lunatic is seised of or entitled to land in fee simple and it appear to the Lord Chancellor entrusted as aforesaid to be for his benefit that the same or any part thereof should be made available for building purposes and that to that end the same should in lieu of being demised for long terms of years be absolutely sold he may order the same to be sold accordingly to such persons in such quantities upon such terms and in such manner as to him may seem expedient and the moneys arising thereby shall be applied and disposed of in manner directed by Sec. 132 of this Act respecting the surplus moneys therein mentioned and the committee of the estate may and shall in the name and on behalf of the lunatic execute and do all such conveyances and things for effectuating this present provision as the Lord

Chancellor entrusted as aforesaid shall order."

By a later statute the power of the Lord Chancellor has been vested in one of the Lords Justices. The terms of the section contemplated the exercise of judgment on the part of the Lord Char cellor or the Lord Justice respectively in respect not merely to the expediency of sale but also in respect to particular conditions connected with the sale. In respect to the order of a foreign Court we should be extremely slow to form an opinion as to the jurisdiction of that Court to make such an order unless its jurisdiction was challenged in a very distinct manner and the order of a foreign Court should be construed most favorably to the jurisdiction of the Court. We ought not without being compelled to do so by the express terms of the order conclude that the order was intended to give directions beyond the powers that the Court was authorised to give. This order appears to have been made upon reading the certificate of William Morris Nicholson a master of the High Court in England. That Certificate is not before us and we therefore do not know its contents

The order of Lord Justice Lindley proceeds to state "I do order, it appearing to be for the benefit of the said lunatic, that his land in Australia should be made available for building purposes, and for that end should be sold that Henry George Yates as the committee of the estate of the said lunatic, be at liberty in his name and on his behalf with the approbation and under the direction of the said Master in Lunacy. to take such steps and proceedings as may be necessary and proper and he may be advised for the purpose of selling and realising the estate of the said lunatic in Australia in the said certificate mentioned and for taking or concurring in any proceeding necessary for such sale or realisation of such estate and for the remittance to England of the proper proceeds of such sale and generally for the purpose of carrying into effect any arrangement which it may appear necessary and proper to make either in relation to the suit in the said certificate mentioned or referred to or otherwise on behalf of the said George Annand in relation to the said sale and the matters above-mentioned or referred to, that for the purposes above-mentioned or directed the said Henry George Yates, as such committee of the estate as aforesaid of the said lunatic, be at liberty in his name and on his behalf to execute such power of attorney, deeds, documents, and instruments as may be necessary and proper and he may be advised; such power of attorney, deeds, documents and instruments to be first settled and approved of by the said Masters in Lunacy."

This order was of quite unnecessary length if it was intended by the order to direct the sale of certain property specified in the certificate of the Master. The order did not purport to direct a sale but that the preliminary steps should be taken towards effecting a sale, obtaining a purchaser, enquiring as to the conditions of sale, the price of the land, and all the conditions necessary for a sale. After these preliminary steps had been taken application could be made to the court on these materials to direct a sale in such quantities and on such terms as the Court might think fit. If the Court desired that the eommittee should effect a sale without the authority of the Court it was difficult to reconcile it with the provisions of the Act. The committee had given a power of attorney to certain persons here to act in connection with the sale and to execute certain deeds and documents to convey the land; but that power seemed to go beyond the intention of the order of the Lord Justice which did not authorise the committee of the lunatic to sell any land. Taking that view of the order of the Lord Justice it was not necessary to go further because if it was not the intention of the Lord Justice to authorise a sale the committee of the lunatic had no power to appoint persons to execute conveyances of the land and had no power to present to the registrar a transfer of the land to be registered. The registrar was on this found justified in refusing to register the transfer. The summons would be dismissed, the costs of the registrar to be paid out of the assurance fund.