See But the (Before Higinbotham, C.J., Williams and hold that a question of fact and not of law is raised character, The Court, in such a case, would be imby the affidavits in all the cases, and that an error, or properly constituted, and upon objection duly taken mistake of fact, if any such has been committed, is not its decision would be set aside by this Court. a ground upon which this Court can review the deter-re Bendigo Gas Company 3, A.L.T., p. 86. mination of the Court below under this section of the only interest which either of these gentlemen is shown Local Government Act 1874. The second ground of to have had in the matter of these appeals was that the several orders raises a different question. In the which they had as ratepayers, and the disability first, second, and third cases the determination of the arising from this cause has been removed by Act of justices is impeached, on the ground that they had no Parliament. See Section 19 of "The Justices of the jurisdiction to make the order, inasmuch as Mr. Peace Act, 1887." They were at liberty to discuss Young and Mr. Sykes, two of the justices, were dis- freely with other ratepayers the acts of the council, qualified to act, as being so substantially interested in and the exercise of that right would not be a legal bar the matter of the appeals on which they adjudicated, to their sitting on the bench and dealing as justices as to have a real bias. In the fourth case, Mr. Bren- with appeals from the rate made by the council. naud, one of the adjudicating justices, is objected to Whether in so doing they acted discreetly or with a due as being himself an appellant against the valuation of regard for the preservation of the course of justice his ratable property. In the fifth, sixth, and seventh from a suspicion even though unjust, or partiality or cases Mr. Young, Mr. Sykes, and Mr. Brennand are bias is quite another question, upon which the affi all objected to on the same grounds. In the first, davits of these magistrates go but a short way to imsecond, and third cases, the objection to Messrs. prove their position. But we have no difficulty in Young and Sykes was taken at the hearing. In the concluding that they were not disqualified from acting fourth, fifth, sixth, and seventh cases, no objection is as justices upon the appeals and that the conduct and alleged to have been taken at the hearing; but it has language ascribed to them constitute no ground for inbeen stated at the bar that it was understood that the terfering with the decisions of the Court of which they objections, having been taken once for all in the first were members. The order to review in each of these three cases, should be considered to apply to all the seven cases will be discharged with costs, to be paid subsequent cases as regards those two justices. The by the corporation to the several appellant ratepayers. objection to Mr. Young and Mr. Sykes was that they had attended a meeting of ratepayers previously to the hearing, and had there expressed a strong opinion adverse to the increase of the valuation made by the council in the rate for the year, and were both of them substantially biassed. The objection to Mr. Brennand was that he was himself au appellant at the same sitting against the rate made on his property. This objection was withdrawn in the fourth case, that of Mr. Kennedy, upon its appearing by the affidavit of the town clerk that Mr. Brennand's appeal had been settled out of court before the hearing of Kennedy's appeal. In this same case of Kennedy's it appears that both Mr. Brennand and Mr. Witt, the other sitting, justice, were expressly requested by both parties to sit and adjudicate In the fifth, sixth, and seventh cases not only was no objection expressly taken to Mr. Brennand, sitting on the bench while these cases were being heard, but it was announced from the bench that Mr. Brennand would not, and he did not, in fact, take any part in the decisions, and did not form a component part of the Court. The objectiou, so far as it relates to this magistrate therefore wholly fails. The facts, so far as they relate to him, have not been fully or fairly stated by the town clerk in his affidavits; if they had been, no order nisi to review would have been granted. Assuming that objection was taken in all the cases to the presence on the bench of Messrs. Young and Sykes, the conduct and language imputed to those magistrates do not, we think, show that they were legally disqualified as being substantially in terested. A specific pecuniary or other interest in the subject matter of litigation and its result, such as makes it probable that the magistrate would have a real bias, would disqualify him from acting in that | PEARSON V. RUSSELL. May, 3rd. 15 Vict. No. 10 section 34-enlargement of time-leave to appeal to Privy Council. Where by any Statute or Rule the time for doing any partienlar act is fixed and power is given to the Court or a judge to enlarge that time, there is no jurisdiction in the absence of a special provision to that effect, to make an order enlarging the time after the period fixed has expired-The mere fact that notice of intention to ask for enlargement was given before the time had expired is not sufficient to give jurisdiction. Appeal from an order made by a'Beckett, J. Leave was given to the plaintiff under Act 15 Vict. No. 10 on the 24th September, 1888, to appeal to the Privy Council. The three months fixed by section 34 for entering into the usual security expired without security being given. A day before the last day of the 3 months notice of intention to move for an extension of time was given and an order granting an extention was made some days later. The question was whether the judge had any jurisdiction to enlarge the time after the three months had expired. Isaacs (for the appellant). Under the Judicature Act Order 64 r. 7 the Court or Judge has power to enlarge even after the time has expired but there is no such provision in the Act, 15 Viet. No. 10. Even where no Higgins (for the Respondent). express power has been given the Court has power to enlarge the time. Williams J. There is a dictum Court for an order to extend the time, and the judge of Higinbotham, Č.J. to the contrary in Johnson v. made the order sought. We think he had no jurisWilliams 12 V.L.R. 254. Holroyd, J. I think diction to make this order. The words of section 34 Molesworth J. expressed in another case a similar of 15 Vict. No. 10, are different from the words of view.] That case was under orders in Council. The the order in council, It is perfectly clear that this Court has to decide on a tabula rasa. The old practice order could not have been made, under the order in was to have the order giving leave to appeal rescinded. council. This is so, even if the application were [Holroyd J. referred to Webster v. Power L.R. 1 P.C. made before 3 months had expired, for there is in the Ap. 150.] Mayor of Ballarat v. Bungaree Road Board order in council no clause giving jurisdiction to en1 V.R. (Eq.) 166 [Williams J. You must wind it up large the time, and the appellant must therefore perbefore it runs down Malpas v. Malpas 11 V. L. R. 670 fect his security at all risks before time has expired. otherwise the Court is functus officio.] It is a prin- Now, under the statute for some reason the appellant ciple of this Court to construe liberally clauses giving is given a chance of obtaining further time to perfect a right to appeal. Byrnes v. Clough 2 W W. and his security, and it is provided that if he does not a'B. (L) 17. We gave notice within the time. perfect it within 3 months then unless the time is Isaacs. [Williams J. referred to clauses in Sub-extended, he shall be taken to have waived the benefit missions to Arbitration] There neither party is at fault and there the Court can enlarge the time because from the very nature of the question the Court is not called upon till after the term has expired Ward v. Secretary of War 34 L.J.Q.B. 53 Russel on Awards Odgers v. Waldron 1 V.R. (M) 26 decided on the Mining Statute, Whistler v. Hancock 3 Q.B.D 83. They had not their materials ready King v. Davenport 4 Q B.D. 402. There were no special circumstances Youngman v. The Melbourne Storage Company 7 A.L.T. 53. [Holroyd, J. There cannot be a suspended waiver.] of any order on his behalf, But if the time has expired, there is no time to extend. Here the time was 3 months, and the 3 months had passed. Where a power is given to extend the time fixed by any act or rule, it must be made before the period of time which it is sought to extend has elapsed. By the Judicature Act and Rules indeed special powers and jurisdiction, are given to extend the time for doing or taking any proceeding, even, although the time for doing such an act may have expired. That provision was purposely introduced to give a court or judge power to do what he would not otherwise have had power to do. When words plainly imply that a Court has such jurisdiction, then it is given, but not otherwise. HOLROYD, J.-I concur. The proviso in section 34 is "unless the time for entering into such security be enlarged by the said Court." Now "be" may mean either "shall be" or "shall have been." I think the sections should be interpreted in accordance with the principle mentioned by my brother Williams The meaning is clear. Three months is the period at the expiration of which it is to be ascertained whether the party who obtained the order for leave to appeal has waived the benefit of it or not. If he has done nothing, there is an end of the matter. If he has got an enlargement of time, then it can be ascertained. KERFERD. J.—I concur. WILLIAMS, J.---In this case leave was given to the plaintiff to appeal to the Privy Council and an order was made that on the plaintiff giving security for costs he would be at liberty to appeal. The application for leave to appeal was made under the Statute 15 Vict. No. 10 and not under the Order in Council. Section 34 of the Statute provides "that if such security as shall be required by the said Court, be not entered into within 3 months from the date of the order made upon such application for leave to appeal, the person applying for such leave shall be held to have waived the benefit of such order, unless the time for entering into such security be enlarged by the said Court.' The plaintiff in this case has not complied with the section as the security for costs was not entered into within 3 months from the date of the order giving leave to appeal. It is true indeed that notice of motion for the order enlarging the time was given before the expiration of the 3 months by plaintiff to defendant but we think that notice of intention to apply for an order enlarging the time cannot affect the question of jurisdiction. If the question to be decided, be whether the judge had jurisdiction to make such an order enlarging time, the fact that the notice of motion was given before the 3 months cannot affect his jurisdiction, although if he had jurisdiction, the time at which this notice was given would be an element useful to consider in determining how the judge has exercised his discretion in a matter within his jurisdiction, but this cannot affect the question of jurisdiction. The question here is, has the Court power to enlarge or extend the time for entering into this after the 3 months have expired. After the 3 months had elapsed the plaintiff applied to a'Beckett, J. sitting as a Rules of Supreme Court 1884 Order XLI r. 9-Com Portion of order appealed from reversed-motion of plaintiff on which the order was made dismissed— Defendant to have the costs of the appeal. IN CHAMBERS. Before a' Beckett, J. PETERS V. ST. CLAIR COMPANY. VIZE V. SAME. 25th March. mon Law Procedure Statute 1865 (No. 274) sec. 366-Judgment by Consent-Sec. 366 of Act No. 274, although unrepealed, must give way to Order XLI r. 9, and therefore judgments by consent must be governed by the provisions of that Rule. Application to enter judgment by consent. The consent produced was signed by the solicitors and not by the parties themselves. HIS HONOR Said: In these cases application has (Before Holroyd J.) · IN RE JENKINS. 30th May. Insolvency Statute 1871 (No. 379) ss 22 37 Compulsory sequestration-Petition-Costs of Execution Signature by agent-Seal of Company-There must be proof of an agent's authority to sign a petition when it purports to be so signed-sealing a petition with the seal of the petitioning company is sufficient signature---A judgment debt includes the amount actually recovered together with the taxed costs of the action, but does not include the costs of execution issued on such judgment. Petition Limited tute 1871 of the presented by the Assets &c. Coy under sec. 37 of the Insolvency Stapraying for the compulsory sequestration estate of Wm. D. Jenkins. or two been made to me to make an order by consent. The consent is merely the consent of the solicitor and appearance has been entered by the parties. My attention has been drawn to sec. 366 of "The Common Law Procedure Statute 1865" which has not been repealed and by that section it is provided that "all consents which orders for signing judgments are upon obtained shall be preserved in the chambers of the Judges and in actions where the defendant has appeared by attorney no such order shall be made unless the consent of the defendant be given by his attorney or agent, and where the defendant has not appeared, or has appeared in person no such order shall be made unless the defendant attends the Judge and gives his consent in person or unless his consent be attested by an attorney acting on his HIS HONOR Said: The petition presented to me in the behalf except in a case where the defendant is matter of Wm. D. Jenkins involves one a barrister, attorney, or practitioner." But by difficulties. The petition purports to be the petition Rule 9 of Order XLI it is provided that " in any of the Assets &c. Coy. Limited and it is impressed cause or matter no order for entering judgment shall with what appears to be the common seal of the be made by consent unless the defendant attends be company. The affixing of the seal is attested by J. fore a judge and gives his consent in person or unless Higgins who described himself as a director and his written consent is attested by a solicitor acting on manager of the company. It is provided by sec. 22 his behalf, except in cases where the defendant is a of the Insolvency Statute 1871 that [His Honor barrister, conveyancer or solicitor." I have referred here read the section.] It was long ago held to the English Rules 9 and 10 of order XLI and find that in cases of individual creditors presenting that in effect Rule 10 is nearly the same as our Rule petitions that petitions must be signed; of course 9, but it appears to me that one of these Rules [Rule a corporation cannot sign a petition in person. 9] which really refers to consent by the solicitor By virue of this section a corporation can sign where appearance has been entered has been acciden- a petition by a duly authorised agent. Higgins tally omitted. I must however deal with the Rules in his affidavit states "I am the duly authorised agent as they stand and although sec. 366 of "The Common of the Company and I am directed by resolution of the Law Procedure Statute 1865" remains unrepealed, it Directors to make this application." He says that was evidently not the intention of the framers that he is the duly authorised agent of the Company but that section should regulate the practice which pro- he does not say that he is to so sign and present the vides for the consent being left in the office of the petition." I held in Re Penglase ante. pg. 251 that Associate. Though that section remains in force there must be proof of the agent's authority to sign a "The Judicature Act 1883" provides that "The Competition when it purports to be signed by an agent mon Law Procedure Statute" though not expressly re pealed is to give way to the Act and the Rules are to be taken as part of the Act. I think therefore I am bound by Rule 9 of Order XLI notwithstanding sec. 366 and that being so I must refuse these applications. There are no persons to sign, so the Seal of the Company must be attached to the consents and the attachment of the Seal must be verified. Possibly I might hold that the words "I am the duly authorized agent" might mean that he was the agent to sign although it is not so stated but the petition purports to have the Common Seal affixed to it and I have to consider whether this is sufficient. Now I find that signature is no where required by the Statute. Higgins swears that the seal was affixed, as it appears, to be in due form. I think therefore that the sealing is sufficient, although this has not been Solicitors for plaintiffs, Jordan; for defendants, decided before. Then there is another matter, the Grave. petition alleges that Wm. D. Jenkins is duly indebted in the sum of L64 8s. d. of which fies that judgment with the judgment spoken of in the paragraph setting out the nature of the debt. The difficulty here is that although I can see and ascertain from this petition that judgment was recovered on these promissory notes and I can ascertain how the amount was made up nevertheless the debt is a judgment debt and is not a debt due on a promissory note. The moment the judgment was obtained the lower debt merged in the higher and it is not accurate to say as alleged in the petition that the debt is one due on a promissory note. The judgment debt would include, not the costs of the execution, but the amount of the debt recovered together with the taxed costs of the action. These amounts added together would make the amount L62 12s. 11d. I do not want to put the parties to the expense of presenting another petition or filing any further affidavits but I think the petition might be amended by stating the amount in which Wm. D. Jenkins is indebted to the Company, upon and by virtue of the judgment debt which would be L62 12s. 11d. and the petition might be amended to work that in. I think a few words would do it. If it were so amended I could then say that the facts alleged therein were proved to my satisfaction. I cannot do that now as it would not be the fact. I wish this petition to be amended in the manner I have mentioned and I will then make the order. Rules of Supreme Court, 1884, Order III v.6 (F) Order XIV r. 2-Order LXX r. 1-Specially in dorsed writ-Exhibits referred to in affidavitWhere in an application for final judgment exhibits referred to in the affidavits are not served along with the affidavits as required by order XIV r. 2 the application would be adjourned to enable the plaintiff to serve affidavits in compliance with the RuleOrder IIÏ r. 6 (F) does not apply to a tenancy which simply existed by the sufferance of the land lord. Application under Order XIV r 1 on behalf of the plaintiff for leave to sign final judgment. The endorsement on the writ, so far as material to the application, was as follows: The plaintiffs are entitled to possession of all those pieces of land [describing them] which said lands were held by the defendant from the plaintiff as tenant at sufferance or other The plaintiffs claim possession and £250 for mesne profits. A preliminary objection was raised on behalf of the defendant. The affidavit in support referred to certain exhibits and copies of those exhibits were not served as required by Order XIV. r. 2. Mr Weigall in support. The documents referred to are in the possession of the defendant and it seems absurd to serve copies of long documents the contents of which are perfectly familiar to the opposite side. In Edgecumbe v. Taylor 8 A. L. T. 14. Higinbotham C. J., held that, where two clear days, as required by this rule, had not elapsed between the service of the summons and the return day, the non-compliance with the rule was an irregularity only and could be cured by order LXX. r. 1. The present irregularity is of much less grave a character and therefore I submit can be cured in the same way. HIS HONOR.-If I am called upon to deal with this objection I should do so under Order LXX r. 1. and I should allow the summons to stand over so as to enable the plaintiff to serve an affidavit in compliance with the Rule. It was then contended on behalf of the defendant that the writ was not a specially endorsed writ. The action appears to be brought to recover possession claimed to be held by the defendant as tenant at will or at sufferance this does not come within the provisions of Order III. r. 6. Mansergh v. Rimmel, Bit's R. 210; Burns v. Walford, Bit's R. 208; Annual Practice (1888-9) pg. 249, Cavanagh's Law of Summary Judgment, Redman & Lyon's Law of Landlord and Tenant pp. 2 3. Appendix C. sec. VII. No. 1 shows that the term must be given and the duration of the tenancy must be stated in the writ; this cannot be done where the tenancy is at will or at sufferance. Mr. Weigall:-In Danbury v. Lavington 13 Q. B. D. 347 it was held that the writ may be specially endorsed in an action to recover land by a mortgagee. All that is necessary is to show that the relationship of landlord and tenant exists. There cannot be a tenancy without a landlord. He also cited Colonial Bank v. Roche 1 V. R. (L) 165. His Honor said I will consider the matter. HIS HONOR, on a subsequent day, said.-The action was to recover possession of land and the application was made by the plaintiff under Order XIV r. 1. to sign final judgment. Order XIV. r. 1 provides that where the defendant appears to a writ of summons specially indorsed under Order III r. 6 the plaintiff may apply to a judge for liberty to enter final judgment for recovery of the land. Order III r. 6, so faras it relates to actions forthe recovery of land provides that in all actions for the recovery of land, with or without a claim for rent or mesne profits, by a landlord against a tenant whose to be entitled. The defendant's contention is that Solicitors for plaintiffs, Smith, Emmerton and Johnson; for defendant Crisp, Lewis and Hedderwick. Restitution. (Before Williams J.) MAIN V. HASKIN. Form of Writ of Restitution. In this case a writ of Restitution was ordered and was settled in the following form. "Victoria by the Grace of God of the United King dom of Great Britain and Ireland Queen Defender of the Faith. To the Sheriff of the Central Bailwick Greeting. Whereas on the 4th day of April 1889 in our Supreme Court of Victoria and by the judgment of the same court the plaintiff above-named recovered possession of the land in the indorsement on the writ of summons described as part of allotment, etc. And whereas we afterwards to wit on the 5th day of April 1889 by our writ commanded you that you should enter the said land and without delay you should cause the said John James Main as administrator of the estate of James Patrick Main deceased late of Melbourne, contractor, to have possession of the said land and premises with the appurtenants and in what manner you should have executed that our writ make appear to us in our said court immediately |