Mr. Higgins in support. Order L. r. 6 is directly in point. This rule provides that an application for an injunction may be made exparte or on notice at any time after the issue of the writ of summons. Order LII. r. 9 only applies to notices of motion, but this proceeding is taken by summons.

13th April, 1889.

Mr. Topp to oppose, There is a preliminary objection | retrospective operation which it would have had in in this matter. The defendant has not entered an New South Wales, thus divesting the title of the appearance yet, and therefore by Order LII. r. 9, if execution creditors in Victoria. No authority has the plaintiff wish to serve a notice of motion on the been cited which supports this contention. Story's defendants before appearance they would have to Conflict of Laws, p. 412, and Geddes v. Mowat, 1 obtain the leave of a Court or Judge to do so, which Glyn and Jamieson's Bankruptcy Reports, are against leave has not been obtained. it. I hold that the judgment creditor's rights are not displaced by the sequestration of the debtor's estate in New South Wales subsequently to the seizure, and I bar the claim made on behalf of the estate of Tuttle, the judgment debtor. The property seized is admittedly the property of a bankrupt firm, of which Tuttle is a member, and I have not to decide anything as to how the debtor's interest in this property is to be sold. I merely decide that his official assignee in insolvency cannot stop the sale of his interest in the chattels seized. I order the claimant in each case to pay £3 3s. costs to the sheriff, and expenses caused by the claim, and £3 3s. costs to the judgment creditor in each case, in addition to costs of adjournment, which have been already provided for.

HIS HONOR Said: Order L. r. 6 seems to be a distinct authority for the procedure adopted in the present application. I therefore disallow the objection.

The argument then proceeded and the application was granted until further order.

Solicitors for plaintiffs, Skinner and Brooke; for defendants, Crisp, Lewis, and Hedderwick.

Before 'Beckett, J.

THE UNION BANK V. TUTTLE.
D'ALBA V. TUTTLE.

Solicitors for claimant, Pavey, Wilson and Cohen; for Union Bank, Blake and Riggall; for Mrs. D'Alba, Eggleston and Derham.

PRACTICE COURT,

2nd April

Rules of Supreme Court, 1884, Order LVII, r. 1— Sheriff's interpleader-The rights of an execution creditor are not displaced by the sequestration of the judgment debtor's estate in a neighbouring colony subsequently to the seizure.

Interpleader summonses. The Union Bank and Mrs. D'Alba had respectively obtained judgments against W. N. Tuttle, who carries on business in Melbourne and Hawthorn as a photographer. He had also carried on business in New South Wales with another person, who was also interested in the business in Victoria. After the writs of execution had been issued in Victoria and the sheriff had seized under them, but before he sold, Tuttle's estate was sequestrated in New South Wales. The official assignee then, through his agent in Melbourne, claimed the goods, and the sheriff interpleaded.

Mr. Duffy appeared for the official assignee, the claimant of the goods; Mr. Hood for the Union Bank; Mr. Isaacs for Mrs. D'Alba.

The

HIS HONOR Said :-- The claimant in these cases is the official assignee in insolvency of the judgment debtor, who was domiciled in New South Wales. Before the order for sequestration had been made the creditors had seized under executions on Victorian judgments. order of sequestration under the law of New South Wales had relation back to a period antecedent to the seizure by the Victorian creditors, and it has been argued that this Court, recognising the opera tion of the sequestration in New South Wales, must do so to its full extent, giving it in Victoria the

Before Williams, J.

IN RE ROSS.

11th, 28th March

Licensing Act, 1885, 8.8., 18, 41, 66, 70--Where the Licensing Court grants a license for a house that is intended shall be built on condition that the house shall be built in accordance with certain plans and specifications and shall be completed by a certain date, and the house is not completed by that date, the court has no power to adjourn the application for the final certificate to enable the applicant to complete the house-Under such circumstances the court should refuse the application for the final certificate, and the application for a license should be commenced de novo.

Order nisi for a writ of certiorari to bring up the proceedings of the Licensing Court for the Licensing District of Yarrawonga, with a view to quashing the certificate of fulfilment of conditions, endorsed on the conditional certificate, for a license on the 22nd January, 1889, by the said Licensing Court. The facts as appeared by the affidavits were as follows:

On the 22nd December, 1887, Ross applied to the Licensing Court, under Section 66 of "The Licensing Act, 1885," for a victualler's license, for a house he proposed to build at Cobram, in accordance with plans and specifications submitted to the court. The

court approved of the plans, &c., and granted the application conditionally on the house being erected in conformity with the plans, &c., by the 1st December, 1888. On the 8th December, 1888, Ross applied to the court to determine that he had fulfilled the conditions and to endorse upon the conditional certificate a certificate that the conditions upon which it had been granted had been fulfilled, but it was objected on behalf of certain ratepayers of the Municipal District that, although the certificate was conditional, no record of the conditions was produced, and that the conditions had not been fulfilled. adjournment was granted to the 29th December, 1888, An to enable the certificate to be produced from the Licensing Court at Alexandra, where the Licensing Court was sitting, on the hearing of the application on the 22nd December, 1887. On the 29th December the certificate was produced, but it was proved that the house was not quite complete, it requiring some plastering and painting, which would cost about £100, and the Court held that the house could not be considered completed. Application was then made for an extension of time within which to complete which was opposed, on the grounds that the Court, having determined the period on the 22nd December, 1887, had no jurisdiction to vary the same unless by way of a rehearing of the entire original application for a license with the same notice to the public, and with all the same grounds of objection available as on the original application. The Court granted an extension until the 22nd January, 1889, when the Court decided that the plans and specifications, and the conditions upon which the conditional license had been granted, had been complied with and endorsed on the conditional license a certificate to that effect.

cause

Dr. Madden (with him Mr. McArthur) to show Ross's application was based in 1887, under Section 18, as being a house containing more than thirty rooms, and also under Section 66, which empowers the Court to grant a conditional license while the house is being built. It is alleged that the magistrates had no authority to grant the license, that the house had to be erected within the period fixed by the Licensing Court once and for all, and

that the Court could not extend the time. I submit

that the Court has authority to determine from time
to time. A man must go on building a house, and if
he does so the Court may give him further time.
Section 66 provides that a license shall not issue until
the Court endorses thereon a certificate that the
conditions have been fulfilled. The word until was
considered in Pratt v. Williams, 6 W. W. and a'B.
(L.) 22, and that shows that the Court had the
power
to consider at any time whether the conditions had
been fulfilled. Section 41 provides that the Court
may re-hear and determine anything it may think
fit.
The Court did re-hear, but it is said that
notice of such re-hearing had not been properly
given. If the Court had jurisdiction to, an 1 had
heard, although a proper notice had not been

13th April, 1889.

given, this would be an irregularity only, and
would not oust the jurisdiction, and this remedy
would not be allowed. Reg v. Alley; ex parte Guess,
9, V. L. R. (L) 19. The persons opposing this have
no locus standi. One of them applied for a similar
license and was refused. The Act states in Section
70 what objections may be taken.
These persons
had already made their objections on the first appli-
cation in the present proceedings, and they could not
be heard again.

The

The

Mr. Hood, to move the order absolute. the delays in building would be a reason for asking Court having determined to grant a conditional license the Court to fix a distant date for completion. Court in the first instance refused the license on the ground that the applicant had not complied with the conditions, but adjourned the matter. witted that there was no It is subpower to adjourn the matter at all. Sec. 41 does not apply. There was should have been given, and an opportunity given to no re-hearing; no notices were given. Fresh notices take objections again. dorsed on the certificate that the original conditions The Court never have enhave been fulfilled. right to object now is not taken If there was no re-hearing the

away.

HIS HONOR said: I will consider the matter. HIS HONOR, on a subsequent day, said: The Licensing Court had authority to issue the conditional certificate, which it did in this case; the condition being that the hotel was to be erected within a certain time mentioned. The house was within that time, and an application was made at a not built subsequent meeting of the court for an extension of time; this application was granted, and subsequently it having been proved that the house was completed, the Court decided that the conditions had been complied with, and endorsed a certificate to that effect on the conditional certificate. The main objection was that the Court had no jurisdiction to grant an extension of time, or to make a determination, seeing that the original conditions had not been complied Court had jurisdiction to do so under the provisions with. Against the order it was contended that the business in the Court I have not had time to give of Sec. 41. On account of very great pressure of the matter the attention it deserves, but I am, nevertheless, giving my judgment now because I am informed that if I delayed the matter further it would be practically useless to the parties. The Court acted in an almost ex parte manner on a portion only of the original matter. I agree with the contention of Mr. Hood, and think that instead of granting an extension of time the Court should have directed a re-hearing. In other words they should be made absolute, at the same time I should be very have commenced de novo. I think this order should glad if it were taken to a higher court.

Solicitors for the applicant, Wisewould, Gibbs and Wisewould, agents for Turner and Abernethy; for the objectors, Smith, Emmerton and Johnson.

SUPREME COURT SITTINGS.

(Before Hodges, J.)

trustees should hold it "upon trust, to invest the
66 same
for the benefit of the children.
"and the interest thereof to accumulate for the
"benefit of the said children during the life of the
"said Ellen S. Heale"; and upon the death of Ellen

PERPETUAL EXECUTORS AND TRUSTEES &c., LIMITED S. Heale, he directed that all his real estate should be

Will-Rule against perpetuities -Interest - Erecutory
Bequest.

A testator directed his Trustees to pay a sum of L200
per annum to A.B. for life for the maintenance &c.
of herself and children and to accumulate the balance
of the income for the benefit of the children during
the life of A.B. He further directed that all his
realty and personalty should be converted into money
on the death of A.B., and he declared that the
proceeds should be divided amongst the children left
by A.B. at her decease, upon their attaining if girls
the age of 25 years or marrying under that age and
if boys upon their attaining the age of 30 years.
He further provided, that, in the event of the death of
A.B. before the children should attain the specified
ages, the trustees should pay to their respective
guardians the interest upon the shares of the children
and should pay the interest direct, to any child who
should attain 21 years. In the event of the death of
A.B. and her children without learing lawful issue,
he directed his estate to be divided according to the
statute of distributions. He further directed that
A.B. should have the use of a certain cottage during
her life so long as she should reside there free of
Held on the construction of the will, that the shares
of the children vested on the death of A.B.
Held that A.B. was not entitled to let the cottage, but

rent.

that her interest in it ceased when she ceased to reside there.

▲ reference was made to chambers to ascertain what increased allowance should be made for the maintenance &c. of the children, the sum specified in the will being insufficient.

Originating summonses, adjourned into court. The plaintiffs were the Perpetual Executors and Trustees, &c., Limited, and W. C .F. Heale, and the defendants were Ellen Spreckley Heale, Edwin Heale, and Catherine Heale. By his will, dated 24th April, 1885, William Swanwick appointed the plaintiffs and the first named defendant, executors, and trustees; the testator died on the 13th August, 1887, and probate was granted to the executors on the 22nd September, 1887. Ellen Spreckley Heale was the only child of the testator, and the two last-named defendants were the children of Ellen Spreckley Heale. By his will, the testator directed that his trustees should pay the sum of £200 per annum, out of the income of his personalty, to Ellen S. Heale, during her life, “for her sole use, and for the support, “education, and maintenance of herself and children." And as "to the remainder of the income of my said "real and personal estate," he directed that his

sold : and he declared "that the moneys to arise from such sale or sales, and such last-mentioned accumu"lations of rents and income of my real and personal estate, and the proceeds of the sale of the remainder of my said personal estate, shall be divided equally "Letween and amongst the children left by her, at "her decease, upon such children (if girls) attaining 66 the age of 25 years of marrying, and, if boys, upon their attaining the age of 30 years, but in the event of the death of the said Ellen S. Heale, before her said children shall have attained such age, then my "said trustees shall pay to the guardian of any such children during their minority, and to such children respectively upon each attaining the age of 21 years, the yearly interest accruing on their respective "shares." He further directed "that the said Ellen

66

66

66

66

66

S. Heale shall have the use of the cottage in Donni'thorn street, Kyneton, during her life, so long as He also directed that in the event of the death of "she shall reside therein, free of any charge for rent." the said Ellen S. Heale and of all her children, without leaving lawful issue," his whole estate should be sold and distributed according to the Statute of Distribution. The proceedings were iniof the corpus and accumulations of the estate, tiated by reason of the doubts arising as to the gift whether it was not void as violating the rule against perpetuities; also by reason of the doubts as to the rights of the defendant, Ellen S. Heale, in regard to the court to increase the allowance for maintenance, the cottage at Kyneton; it was also proposed to ask &c. The interest of Ellen S, Heale was adverse to would take all as being the only next of kin of the that of her children, as, in the event of intestacy, she

testator.

Higgins appeared for the plaintiffs.

The

Macltugh, for the defendant, Mrs. Heale. term "children" means the children in existence at the death of Mrs. Heale. As regards the corpus of the testator's property, the only gift is in the direction to divide; the substance, consequently, and not merely, the enjoyment is postponed. Jarman, I 839, 840, (4th ed.) Leake v. Robinson, (2 Mer 363). It may be contended that as there is a gift of the interest on the death of Mrs. Heale that direction vests the shares ; but that is a merely contingent gift, and is actually repugnant" to subsequent directions in the will, so that no argument can be reasonably based upon it. It is submitted that Mrs. Heale is entitled to let the cottage at Kyneton if she wishes. The words “ use of during her life" give her an estate in the property; she can, consequently, let the house, or assign her interest therein. Rabbeth e. Squire, (19. Beav 70). There is no injunction on her to reside there, and no penalty in the event of her not doing

Gleeson v. Gleeson, (12 V. L. R., 785; Theobald, for the maintenance and education of the children 150, e. Jarman, 1 798 (4th Ed).

HIS HONOR :-The plaintiff cannot succeed unless he has some interest in the land. Unless he has an interest in the land the Court can not, at his instiga tion, restrain the defendant Williams or the registrar from dealing as they think fit with the land. therefore to look at the pleadings, and see what is there stated--whether the plaintiff has at the present time, any interest in the land. It was admitted that the plaintiff had lost his right to recover the money. This was clearly and unmistakably shown by section 47 of the Real Property Statute, which provided that after the passing of this act no action, suit, or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity. but within 15 years next after a present right to receive the same shall have accrued to some person capable of giving a discharge or release for the same." The action or suit must be brought within 15 years from the time when the right to recover the money arose. The equitable mortgage here related to a money charge on the land, and as the money was charged on the land by the equitable mortgage an action to recover it must be brought within 15 years from the time at which the plaintiff acquired the right to get the money. But the question arose, apart from the right to get the money, whether the plaintiff had any in- | terest in the land. I use the word "interest