OF CASES In where a plaintiff is beyond the jurisdiction is that if quired tha that a certificate of the judgment rejudgment is given against him he, presumably his covered in one Court shall be filed in the other, and property, is not within the reach of our law to have thereupon execution issues. As between London, process issued for the costs, in eise he fails in his suit. Dublin, and Edinburgh, this need never entail a It was argued that under that Act process would now delay of more than 24 hours. Under the Austrarun into the other colonies, and therefore that security lasion Judgments Acts before the certificate can be was no longer necessary, and Raeburn v. Andrew L. registered an affidavit must be filed in the Court out R. 9 Q.B. 119 was relied upon. In that case an of which it is intended to issue process, and sworn by order for security for costs was refused by the Queen's the person in whose favour the judgment was made or Bench division of the Supreme Court in England, by some other person cognisant of the facts of the because although the plaintiff resided out of the case, stating that the amount for which execution is jurisdiction, in Scotland, yet that since the Judgment proposed to issue is actually due and unpaid. The Extension Act 1868, the reason for granting security Act purports to apply to all the colonies of Australia, had ceased. That Act authorized a certificate of a to Tasmania, New Zealand, and Fiji. If the Federal judgment obtained in England to be entered in Scot- Council intended that the affidavit should speak conland, and thereupon execution issued as if it were a temporaneously with the issue of execution then it is judgment of the Scotch Court of Session. That Act difficult to see how the affidavits could be made unless applies to England, Ireland, and Scotland. In the person entitled went to Fiji (for instance) if the Ireland the Courts have differed. The Court of person against whom execution is sought resided there. Queen's Bench there follows the case of Raeburn v. If the intention of the Act was that an affidavit should Andrew, whilst the Courts of Common Pleas and Ex- be made by (for instance) a person in Hobart that a chequer still require security to be given by a plaintiff judgment dit is due to him by a debtor in Fiji, the residing in England or Scotland, 1 Chitly, 395, 14 debt may be pad some weeks before the affidavit can Ed. In Victoria in 1876 the Supreme Court refused be used or execution issued in Fiji. The language of to order security to be given by a plaintiff, resident the section seems to import that the foreign Court in New South Wales. The Court, Fellows and should have evidence before it at the time execution is Stephen, J.J., held that Raeburn v. Andrew governed issued by it of the amount then actually due, and for the case, and that the Act 19 Vie., No. 12 of New that amount, and no more execution is to issue. South Wales, rendered security unnecessary. That addition to this affidavit, a further one would appear Act authorised a memorial of the judgment obtained to be necessary, for section 3 declares that the Act in another colony to be filed in the Supreme Court at shall only apply to (1), where there is personal service Sydney, and then a judge of that Court could issue a of the writ of summons on defendant; or (2) where summons calling on the judgment debtor to show there is service in accordance with the Australasian cause why execution should not issue against him, Civil Process Act, 1886; or (3) where the defendant etc. These provisions make new and active proceed submits to the jurisdiction. Whilst the Home Court ings mor ssary in New South Wales, and must cause may be aware from the proceedings before it whether extra exp use, inconvenience, and delay in recovering the case comes within the Act, the foreign Court eo ti. Whilst this has been the decision of the would require an affidavit to show whether the case : upreme Court of Victoria, the Court in New South, came within section 3, for unless it did so that Court Wales has adopted a different course of practice. In would have no juri-dict on to proceed. I am of opinion W! Whinnie v. Union Co., 2 W.N. N.S.W., 73, two that the more complicated process, and the greater es were cited in which that court had decided that expense and delay that would be necessary to enforce plaintiff resident in Melbourne must give security for judgment in accordance with the Act of the Federal costs, on the other side Raeburn v. Andrew, and also Council within the wide limits of the colonies referred the Victorian case Martin v. McDonough, were cited. to, as compared with the more simple and inexpenWindeyer, J., said he had consulted with the Chief sive mode of enforcing them under the British Act Justice, who had had the point before him on within the limits of the United Kingdom, distinguishes previous occasions, and he ordered security to be this case from Raeburn v. Andrew, In England the given. A decision to the same effect was given in orders under the Judicature Act placed costs absoCoote v. Howlette in May, 1887, by Mr Justice Innes. lutely at the discretion of the Court. In Tasmania So far then as authority goes it is pretty evenly there is no such power vested in the Court, and the balanced. The principle to be adduced seems to be constant practice of the Court has been to require that when the process of enforcing in one colony a security for costs whenever the plaintiff resides out of judgment recovered in another colony is simple and the jurisdiction. This practice, I am of opinion, is inexpensive, that security for costs should not a reasonable one, and I see nothing in the Act of the be required to be given by a plaintiff residing in the Federal Council to militate against its continuance, former colony in case he sues in the Courts of the If a plaintiff comes to Tasmania and invokes the aid latter. In every case so delay and expense must of this Court, and is not successful in his suit, there be inctured, beyond what would be necessary to issue is no reason why a defendant should be put to the process if the plaintiff re il within the jurisdiction, expense and inconvenience of going to another Court and the question, therefore, resolves itself into one of to enforce judgment for his costs. The summons is degree. Under the British Act nothing more is re-dismissed with costs. 1 IN THE SUPREME COURT OF TASMANIA 369, and that it was signed at the end, and was duly (ECCLESIASTICAL JURISDICTION). IN THE GOODS OF THOMAS SHEEHAN. Sept. 18th & 24th, 1888. Will-Execution—Signature at foot of first page not on last page-1 Vic. c. 26 s. 9 & 16 Vic. No 4.Application for probate of whole of the document. The signature to a will, required by the Wills Act must be at the foot or end of that which the deceased intended to execute as his will. The only question in this case was whether the document propounded was duly executed. It was written on two sides of a foolscap sheet of paper, at the foot of the first side was the signature of the decensed, duly attested, but the second side had not been signed by the deceased, but was signed by the witnesses who had signed on the first page. Jackson in support of application:-The second page is by reference made part of the will, provided it was in existence at the time when the will was executed; Singleton v. Tomlinson, 3 App. Ca. 404; In the goods of Dallow, L.R. 1 P. & M. 189; In the goods of Watkins, L.R, 1 P. & M. 19; but if this contention be bad, probate should still be granted of both papers as being really the will of the testator; In the goods of Kimpton, 33 L.J.P. & M. 153; In the goods of Coombs, L.R. 1 P. & M. 302; In the goods of Wootton, L. R. 3 P. & M. 159. C. Ad. Vult. Mr. JUSTICE DODDS on September 24th delivered the following judgment :-In this case the testator having used a lithographed form of will, which was on the first side of a foolscap sheet of paper, executed it at the foot of that side, and his signature was attested by witnesses on the same side. This side contained inter alia the following paragraphs in writing:—(1) "I give devise and bequeath to the following relatives named in this my last will the sums of money as directed by me, Thomas Sheehan." (2) "All the moneys realised from the sale of my property and the money to my credit in the bank with interest, if any, are to be given to those mentioned in this my will if living." No persons are mentioned on this side. The second side of the paper is written on and certain bequests are made to persons whose names indicate that they are relatives of the deceased. and the concluding words of the writing are:-"The above is the way I wish my moneys to be divided, as witness my hand this 15th day of January, one thousand eight hundred and eighty-three, in the presence of." Then follow the signatures of the witnesses who attested on the first side, but the testator has not signed. The question is whether the document is entitled to be admitted to probate as being properly executed within the language of the Wills Acts. The argument mainly relied on in moving for probate was that the two sides together constituted the complete will, that it commenced on the second side, and ended on the first, as in Wootton's case, L.R. 3, P. and D. executed within the statute. In that case a lithographed form was used, but it was not filled up save as to the appointment of executors, and on the second and third sides the testator wrote her will beginning on the top of the second side with the words, This is the last will and testament, etc.," and she signed her name at the end of the first or lithographed page, the witnesses attesting on the same side. The present case is different. The writing here does not purport to commence on the second side, and with the words used in Wootton's case, viz., "This is the last will, etc." It begins with a bequest and the whole of the writing is apparently intended to give effect to the intention expressed by Sheehan on the first side when he said he gave "to the following relatives named in this my last will," but to make the reasoning of Wootton's case apply, we should have to distort the plain facts, turn the paper inside out, alter the language of the testator by substituting "preceding" for "following," and hold that the names of the relatives written on the second side precede a paragraph written on what seems to us to have been intended as the first side. This last-mentioned paragraph, and that which says that "the moneys, etc., to be given to those mentioned in this my will," show that the writing on the second side is part of the will, and not an existing independent document referred to by the will, and the last lines of the writing, viz., The above is the way I wish my money to be divided, as witness my hand, etc." seem not only to indicate that this was the end of the will, but that the testator intended to execute it on the second page by a subsequent signature. There is no such intention shown in Wootton's case. Looking at the whole document, we think, as was contended at the bar, that the first and second sides together constitute that which the deceased intended to execute as his will, but that he omitted to do what the statute imperatively demands, sign it "at the foot or end thereof, and the proviso to the 2nd sec. of the Wills Act Amendment Act, 1852, enacting that "no signature shall be operative to give effect to any disposition or direction which is underneath or which follows it," renders this omission fatal to the validity of the disposition contained on the 2nd side. We are of opinion that the case is governed by the decision in Sweetland v. Sweetland, 34 L.J.P.M. and Ad. 42, and to use the language of that judgment "it does not become the Court in a laudable anxiety to give effect to the document to twist or distort the plain meaning of the statute by ingenious construction, and virtually break the law to mend the testator's blunder." As the two sides together constitute the will, probate cannot be granted of the part contained on the first side, although it is signed, for the Court would not be justified in fixing upon a signature in the midst of what the testator intended as his will, and treating it as as an execution of all that preceded it, and granting probate of so much of the will to the disregard of the remainder. The Court ho ds, with regret, that probate must be refused. OF CASES allow the Solicitor for a plaintiff to judge for himself whether there has been a default, or whether where there has been a regular appearance so far as he knows he ought to pass over that appearance upon the mere request of the solicitor. I do not think the Prothonotary ought to do either and I have reason to believe that in this I am in accord with the Prothonotary. I have been referred to the case of Smith v Dobbin 3 Ex. D.338. In this case the point seems to be substantially the same as here except that I do not know how far the officer was informed by affidavit or otherwise as to what made the appearance bad. In the present case there was nothing except the statement of the solicitor. I am not disposed to follow that case. If the solicitor for a plaintiff finds that the time has elapsed for receiving a notice of appearance he may go to the Prothonotary's office and search for an appearance, and if he finds that an appearance has been entered but that he has received no notice of such appearance he has his remedy by applying to set aside the appearance for irregularity and all proper costs would be allowed him. Notice of appearance is essential to the regularity of the appearance but not to the appearance itself. I think that judgment ought not to be entered where there is a valid appearance so far as the Pro thonotary is aware. It will be remembered that Rule The judgment was entered for default of appear ance. It appeared from the affidavits that the plaintiff in person entered an appearance in the Prothonotry's office and served a notice of such appearance on a clerk to the plaintiff's solicitors, but did not at the same time serve a sealed duplicate memorandum of the appearance. The plaintiff's solicitors treating the appearance as a nullity signed judgment which the defendant in this application sought to set aside. The arguments appear sufficiently from the judg-9 of Order XII provides that service of the notice of ment. Mr. Sierwright in support. Mr. Box to oppose. HIS HONOR Said "I will consider the matter." HIS HONOR on a subsequent day said. In this case judgment has been entered in the ordinary form on a specially endorsed writ on the ground of default of appearance. The Rules as to appearances are Rules 8 and 9 of Order XII. Rule 8 provides the mode of entering an appearance in the Prothonotary's office, and Rule 9 provides that on the same day as the appearance is entered in the office, the defendant shall give notice to the plaintiff or his solicitor of having entered an appearance either by notice in writing or by prepaid letter. together with a sealed duplicate memorandum of appearance, which latter has not been done in the present case. The appearance and notice of appearence are quite distinct. It has been urged that if Rule 9 is not complied with no appearhas been entered. The authorities cited in Hamil ton's Judicature Act support that view to some extent, but I am not inclined to go that length. I think that, where a regular appearance has been entered on the records of the Court, the prothonotary finding a regular appearance entered should not, on the mere application of the plaintiff, allow judgment to be entered as in default of appearance. That which the solicitor thought justified him in taking the course he did was that there had been an irregular notice of appearance and that that justified him in treating the appearance as a nullity. There was nothing before the Prothonotary to show that there had been any default whatever. Of course it is a matter of prac tice to determine whether the Prothonotery ought to appearance may be made by prepaid letter, therefore if a letter miscarried there might be a good service although the plaintiff's solicitor never received the notice. As the defendant caused the irregularity I will set aside the judgment without costs. Solicitors, for plaintiff Malleson England and Stewart; for defendant Sierwright. See North Melbourne, &c., Building Society v. Trendenberg, 7 A.L.T. 38.-[ED.] that the matter could not be gone into until Lund was served with notice of the application and that m any event it was only the person who had teen wrongly joined as a plaintiff who could make an application like the present. It was contended on behalf of the applicants that this application might be made by any plaintiff. Daniell's Chancery Practice 6 edition page 263 ; and that a Judge had power to grant the application under Order XVI r. 2 without service on the plaintiff Lund. His Honor said: An action having been commenced by the plaintiff's two of them now wish to bring another action on the ground that they have been deceived. I do not say that I would have refused the application if Lund had been served with notice of it; but I dismiss it with £3 3s. Od. cost on the ground that Lund has not been served. Solicitors for applicants, Hopkins; for defendant, Cuthbert, Hamilton and Wynne. SUPREME COURT SITTINGS. Before A'BECKETT, J. HUSSY V. BANK OF AUSTRALASIA. Libel -Writing letters N.P.F. on promissory note presented for payment at a bank at which the promissory note was not made payable- -Privilege. gested-were objected to because they were solicitors for the plaintiff. When too late an offer was made to pay the amount to be secured into court. The plaintiff being resident in England, difficulty arose in forwarding sureties other than those objected to. The vacation intervening, the absence on leave of the prothonotary, and the proclamation of the 26th of January as a holiday, when the time for perfecting security had nearly expired, occasioned other difficulties by no means insurmountable, but they afford some excuse for the dilatory and irregular proceedings of the plaintiff's solicitors, which necessitated this application. As to jurisdiction, I am asked to act under section 34 of 15 Victoria, No. 10, which contemplates the time for entering into security being enlarged by the Court, and is thus less stringent than the Orders in Council. It is therefore necessary to determine whether the order giving leave to appeal is to be dealt with as made under the act or under the orders. The amount involved, the nature of the decision, the terms of the order, and of the affidavit on which it was made, are quite consistent with its being under the act. The practice established since the case of Johnson v. Colclough, to which I have been referred, is to obtain two orders of the Court when leave is granted under the Orders in Council. There is no indication in the present order of another being contemplated. It is absolute in the first instance, and I take it to be an order under the act. The case came before me after the time for perfecting the security had expired. The notice of motion was in time, and was for a day, which would also have been in time had it not been proclaimed a holiday. I think I have jurisdiction to do what is asked under section 34. I Action by George Henry Cleland Fussy, against shall order that the time for entering into security le the Bank of Australasia for wrongfully and neglienlarged for six weeks from the 26th day of January gently marking the letters N.P.F. on the back of a As to costs, Ithink that the delays and irregu- promissory note which the plaintiff had drawn, and larities to which I have referred justified the defend-which by mistake had been presented to the ants' solicitors in appearing to oppose, particularly as Australasia," the defendant, instead of to the "Royal the plaintiff was warned by letter of the 16th of No- Bank of Australasia." On the 25th February, 1888, vember that an extension of time would be opposed. the plaintiff made a promissory note for £22 10s. Ed., I therefore direct the plaintiff to pay the defendants payable six months after date at the Bank of their costs of opposing the application, and to abide Australasia, which was endorsed "without recourse by Messrs. Gemmell, Tuckett & Co., the paye 's, and given to the Victorian Land Company. During the currency of the note, the plaintiff, with the consent of the holders, made an alteration in it making it payable at the Royal Bank of Australasia. The note was sent to the Commercial Bank for collection, and was presented by it in due course to the Bank of Australasia, the defendant, where the plaintiff happened to have an account. The clerk at the Bank of Australasia returned it, with the letters N.P.F. " on it, and this constituted the libel complained of, as it was alleged that it was meant that the plaintiff had made the note payable at the defendant's bank and had not provided for it. tended that, under the circumstances, what it wrote was privileged. At the trial the jury found that the defendant was guilty of neligence in treating the promissory note as payable at its bank; but that the last. their own costs thereof. SINCLAIR, TURPIN and LUND V. NAYLOR. Rules of Supreme Court 1884, Order XVI v. 2- -Altera tion of parties- Notice- Where it is sought to strike a party out of the list of plaintiffs and make him a defendant, such party must be served with notice of the application. 28th February. Application on behalf of the plaintiff's Sinclair and Turpin to strike the plaintiff Lund out of the list of plaintiffs and to make him a defendant. There was no appearance for Lund and it was admitted that he had not been served with the summons, Mr. Coldham for the defendant to oppose contended 5th March. Bank of The defendant con Mr. Leon and Mr. Amess appeared for the plaintiff: Dr. Madden and Mr. Mitchell for the defendants. will be found collected in Odgers on Libel, second Statements necessary edition, under the heading of The to protect defendant's private interest." "Any one," says Lord Denman in the case of Touson . Ecans, 12 Adolph and Ellis, "in the transaction of business with another has a right to use language bona-fide which is relevant to that business and which a due regard to his own interest makes necessary, even if it should directly or by its consequences be injurious or painful to another; and this is the principle on which privileged communication rests." The principle has protected an unfounded assertion that a trader has committed an act of bankruptcy, and imputations upon character far more serious than that involved in the assertions that funds have not been provided for payment of a promissory note. defendant here did not volunteer the statement which is treated as libellous, but made it in giving the ordinary explanation for not satisfying a demand for payment made in the ordinary course of business. is true that if the writing supposed to contain the demand had been carefully examined the defendant would have found that it was made upon another bank, and would have declined to pay for that reason, and not for the reason assigned, but this should not deprive it of the protection to which it would have been entitled had the demand been properly made upon it, and it had, by bona fide mistake, declined to pay, and written "N.P.F." on the back of the note. Though the refusal to pay would be actionable, the writing of the letters objected to would be privileged, as I hold the writing to have been in the present case. For these reasons I give judgment for the defendant with costs. HIS HONOR read the following judgment: This is an action for libel altogether novel in its circumstances. The libel consisted of the letters "N.P.F." written by a clerk employed in the Band of Austral asia on the back of a promissory note for £22 10s 8d., given by the plaintiff, which was presented to the Bank of Australasia in mistake for the Royal Bank of Australia. The letters N.P.F. mean not provided for, and were equivalent to an assertion that funds were not available to meet the note at the bank at which it was payable. The plaintill had suflicient funds available at the Royal Bank, but had not sufficient at the Bank of Australasia. The mistake arose through the carelessness of the plaintiff. Hussy bought land; he gave a promissory note for part of the purchase money, making it payable at the Bank of Australasia. He afterwards wished to make it payable at another bank, and was allowed to alter the note by writing the word "Royal" before the words "Bank of Australasia, but he wrote it in such a way that the alteration was not observable without close inspection. The Commercial Bank, with whom the note was lodged for collection, did not observe the alteration, and presented the note at the Bank of Australasia. The Bank of Australasia did not observe the alteration, and the plaintiff, having an account there which was in credit for less than the amount of the note, wrote "N.P.F." on the back of it. The mistake was at once corrected by the persons interested, and the plaintiff did not discover what the Bank of Australasia had done until after the note had been paid. Thinking, then, that the discovery might be made profitable, he brought this action against the Bank of Australasia, charging it with falsely and maliciously writing and publishing of and concerning him the letters "N.P.F.," whereby he had been greatly injured in credit, reputation, and character, for which he claimed £250 damages. In answer to questions sent to the jury, they found that the Bank had been guilty of negligence, but that the plaintiff's own neligence necessitated exceptional care on the part of the bank to avoid making a mistake, and they assessed his damages at one shilling. It was argued for the plaintiff that contributory negligence was no answer to an action for libel, and that the plaintiff was entitled to judgment for his shilling. The defendant contended that the letters N.P.F." were written under circumstances which constituted a privileged occasion, and that therefore the writing was not actionable, and that the defendant was i entitled to judgment. The writing seems to me well within the principal which protects statements injurious in their consequences but made without It Solicitors for plaintiff, Reed; for defendants Klingender, Dickson and Kiddle. BEFORE KERFERD, J In the settled estate of W. J. T. Clarke.' Feb. 14th, March 1st. "Real Property Statute 1864" part V. Application of proceeds of sale of settled land. Person in possession. Compensation. Income of tenant for life. Corpus. In carry 4 conditional agreement for the sale of certain settled Motion for payment out of Court of the purchase moneys arising from the sale of certain lands settled malice in the course of business, instances of which the will of William John Turner Clarke deceased. The testator died on the 13th. January 1874. By |