after the execution thereof. And whereas it appears by your return now filed of record in our said court that by virtue of our last mentioned writ you had given full and peaceful possession unto the said John James Main as administrator of the land and premises with the appurtenances in the said writ mentioned, and because since the issuing of our said last mentioned writ, it hath appeared to our Supreme Court that the said judgment obtained by the said John James Main in manner aforesaid was irregularly obtained and that our said writ thereupon issued improvidently and unjustly. Therefore we command, you that if possession of the land aforesaid hath by virtue of our said writ ben given or delivered to the said John James Main then that without delay you cause restritution of the said land to be made to the said John Haskin at whose instance the judgment aforesaid hath been set aside by our said Court, he the said John Haskin being tenant of the land aforesaid, and that whatever has been done by virtue of our said writ you deem altogether void and of no effect as you will answer the contrary at your peril, and in what manner you shall have executed, this our writ make appear to our Supreme Court immediately after the execution thereof and have there then this writ.

Witness-His Honor, George Higinbotham Esq.,
Chief Justice of the Supreme Court,
at Melbourne, the
1888.

day of June,

Solicitors, the plaintiff in person; for the defendant, Crisp, Lewis and Hedderwick.

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Mr. Anderson as amicus curia informed his Honor that it had been recently decided by Mr. Justice Holroyd, in Harris v. Rowley ante, pg. 270, following the decision of Mr. Justice Molesworth in Mac Donald v. Spencer 11 V.L.R. 280, that motions of this nature should be placed in the list of causes and come on for trial in the ordinary way.

Mr. Woolf in support of the motion cited Stewart v. Coghlan, 11. V.L.R. 279. that the HIS HONOR Said: I should have thought Rule clearly meant that these motions should be set down for hearing in the ordinary lists of causes, and this procedure is to my mind far more convenient than the procedure adopted in this instance which seems to me to be a hole and corner way of obtaining a judgment. In any case I should be inclined to follow the previous decisions for the purpose of obtaining uniformity of procedure. I dismiss the motion; the motion to be placed in the ordinary 1st of causes. Solicitors for plaintiff, Maddock & Johnston.

(Before a'Beckett, J.)

HITCHINS V. MAYOR, &C. OF PORT MELBOURNE,

May 7th 8th & 10th.

FRACTICE COURT.

(Before Williams, J.)

HOOKE V. JOHNSTON.

June 13.

Rules of Supreme Court, 1884, Order XXVII r. 11- Where a defendant makes default in pleading in an action coming under the provisions of Order XXVII r. 11 the motion for judgment must be set down for trial in the ordinary list of causes, and must come on for trial in the ordinary way.

Motion under Order XXVII r. 11, on behalf of the plaintiff for final judgment, the action being for the rescission of a certain contract for the sale of land.

Local Government Act No. 506; Sec. 380-Public highway unformed-Dangerous intermeddling by stranger to knowledge of Council.

No duty is imposed upon a municipal council of taking the necessary steps to prevent a stranger from intermeddling with a road within the municipal district before formation. [See 10 A.L.T. 121 and judg ments of Williams and Holroyd, J.J. there reported.]

The

Action by Mary Ann Hitchins, administratrix of James T. M. Hitching against the Mayor etc. of Port Melbourne for the sum of £1500 damages. action had been originally heard before Webb, J. (on the 8, 10, 13 February 1888) when the plaintiff sued the defendants for wrongfully and negligently permitting a certain highway known as Rou-e Street, and alleged to have been and to be under the defendant's control and management, to be and continue for a long time out of repair and in a state and condition dangerous for foot passengers by reason of an excavation thereon which was left by the defendants unprotected and without any light at night to warn persons, whereby the deceased, while lawfully using the said highway, by reason of the defendant's negligence, fell into the excavation and received injuries

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from which he died. Webb J., found the following set out in the statement of claim as "negligently facts:--1st, that Rouse Street, where the accident permitting Rouse street to be and continue and for a happened, was a public highway within the defendant long time remain out of repair and in a state and municipality 2nd., that while it was a public high condition dangerous for foot passengers, by reason of way the Board of Land and Works caused a hole to an excavatian thereon, which was left by the defendbe made in it and the material from the hole to be ants unprotected and without any light at night.” removed; 3rd, that the deceased, while lawfully using The excavation, which was of considerable extent, had the highway, fell into such hole and his death was Leen made about four years before the acccident thereby caused; 4th., that the defendants had never happened, and there could be no doubt of the council formed or made the portion of the street when the having known of its existence. Thus it was decided accident occurred; 5th., that the deceased was not that although a dangerous hole made by a stranger had guilty of contributory negligence. The question was existed for years in a street of the borough, the borough, then reserved for the opinion of the Full Court whether not having formed that portion of the street, was under upon these findings the defendants were guilty of no obligation to fence in the hole or otherwise to negligence as in the statement of claim mentioned. protect the public from its dangers. The law so Arguments on the points reserved were heard before declared extended little, if at all, the protection from the Full Court on the 13th September 1888 [See 10 liability which existed under previous decisions. It A.L.T. 121]; it was held that if the Court were to be merely put dangerous conditions, resulting from the confined strictly to the question which was asked, viz: acts of a stranger, on the same footing as dangerous whether upon the findings the defendants were guilty conditions arising from natural causes, If a tree of the negligence alleged in the statement of claim the fell, or the rain wore a channel across a road which question ought to be answered in the negative; but the borough council had left untouched, the council, it was also held by two members of the Court that it under former decisions, would not have been held liable was the duty of a Council, when they had knowledge for a consequent accident. Under this last decision of the fact, to prevent, an injury being done the counell would not be held liable, though a stranger by a stranger to a public highway within their had felled the tree or cut the channel. The Court municipality, even though they had never formed or has held that the sections of the act giving the care made that portion of the highway in which the injury and custody of the road, and requiring the council to was being effected; it was, consequently, intimated by keep it clear, would not apply in either case if the them that an amendment of the statement of claim council had not assumed responsibility by forming the ought to be allowed if desired by the plaintiff so as to portion of the road in which the dangerous obstruction put in issue the question whether the excavation had to traffic existed. Two members of the Court who been made at the time to the knowledge of the concurred in the judgment have, however, expressed defendants. The pleadings were subsequently amend an opinion that on an amendment of the pleadings ed so as to raise the required issue and the action the council might be shown to be liable by proving came on for trial on the amended pleadings. that the council had known of the excavation while it was being made, and had taken steps to prevent it.

Goldemith (with him R. W. Smith) appeared for I have to deal with amended pleadings and new facts the plaintiff.

Hood appeared for the defendants.

HIS HONOR, in giving judgment, said:-In this case I have to determine whether the borough of Port Melbourne is liable for the consequences of an accident according to the law already laid down by this Court. The margin on which I am left to exercise an independent judgment is exceedingly narrow, as the cause has been heard and determined upon all points but one. Webb, J., who tried it, reserved a case for the Full Court. He found that Rouse street, where the accident happened was a public highway within the municipality; that while it was a public highway the Board of Land and Works caused a hole to be made in it, and material from the hole to be removed; that the deceased, while lawfully using the highway, fell into such hole, and his death was thereby caused; and that the defendants had never formed or made the portion of the street where the accident occurred. On these facts the Court found that the corporation was not guilty of the negligence in the statement of claim complained of. This was

brought before the court in deference to this sugges tion. I find a difficulty in reconciling the opinion so stated with the decision it accompanies. It lays down a new rule, for which I find no warrant in the statute prescribing the council's duties, or in any decision as to such duties. The old rule as I understood it, and as it has been acted upon in answering the questions reserved in this case, was that the council had no active duties with reference to a road until it had accepted responsibility by forming the road. I am not prepared to adopt the qualification that it has the duty of proceeding against any stranger whom it may find intermeddling with a road before formation. If the council were bound to interfere to prevent a stranger doing what would make the road dangerous, I should say that the council were bound to protect the public against the danger which a stranger had occasioned, but this the Court has just decided it was not bound to do. The case of Borough of Bathurst v. Macpherson, L. R., 4 Appeal cases, p. 256 relied upon as an authority for creating the new species of liability, does not seem to me to tend in that direction. The judgment pointedly turns upon

the council having been itself the author of the mischief for which the action was brought as appears from the following passages:

"The question is whether the municipality, having constructed the drain, was not bound to keep it in a state of repair. The duty was cast upon them of keeping artificial work which they had created in such a state so as to prevent its causing danger. Their lordships are of opinion that the appellants. by reason of the construction of the drain, and their neglect to repair it, whereby the dangerous hole was found which was left open and unfenced, caused a nusiance on the highway, for which they wers liable to an indictment." If I adopted the views which led to the amendment of the statement of claim, it would be necessary for me to determine upon the facts in evidence whether or not the council could have prevented the Board of Land and Works from making the excavation. The council would not be held liable for not resorting to force or to litigation unless it appeared that interference would have been successful I cannot assume that

the board would have desisted at the mere request of
the defendants. There is not a suggestion in pleading
or evidence that the council invited or encouraged the
Board or Land and Works to make the excavation,
and abstaining from hazardous litigation cannot be
be treated as an approval of the work. It has been
contended for the defendants that the work was done
by authority of the Crown, and therefore that they
could not have stopped the work. I have been
referred to Appropriation Acts authorising expenditure
for the purpose.
I do not regard these acts as making
the purpose legal, but on this and other evidences it
appears that the board was acting, not as an in-
dependent corporation but under the direction of the
dependent corporation but under the direction of the

law if I had been in favour of the defendants upon
the facts as to contributory negligence.
In the course
of the trial, I inspected the scene of the accident, and
came to the conclusion that on a dark night a sober
man, knowing of the excavation, might have missed
his way and fallen into it. I accept the evidence of
the witnesses who state that Mr. Hitchens was drunk
in the afternoon of the day on which the accident
happened. He slept, and had a meal before leaving
his house in the evening. Mr. Murdoch, a disin-
terested witness, who came to his assistance immedia-
tely after the accident, says that he was then sober.
I feel doubt as to his drunkeness having been "the
proximate or efficient cause of the accident," to adopt
the language of the judgment in Boyle r. President of
had nothing to do with it, and I decide that the plea
Shire of Mornington, Vict. L.R. p. 267. It may have
of contributory negligence has not been sustained. I
might stop here, and say nothing as to the damages
I would have given if I had decided that the defen-
third trial in the event of a successful appeal, I will
dants were liable; but to avoid the necessity for a
state what I would have done had I decided that the
plaintiff was entitled to succeed.
so strong as to the drunken habits of Mr. Hitchins
and his consequent impecuniosity, that I thought he
was earning very little for some time before his death,
chance of his reforming and earning more.

The evidence was

and that had he lived there would not have been much I therefore estimated the sum which he could have been ex

pected to provide for the support of his family at a very low rate, and considered that the sum of L600 would be ample compensation. I should have given L200 to the widow, and L400 equally between the children, the shares of the infants to be paid into court and invested, and the income applied to their maintenance. I decide against the plaintiff on the ground that the defendants omission to proceed against the persons making the excavation does not give the plaintiff any right of action, and that the Court has decided that the defendants were not guilty before a jury the plaintiff would have had to pay any other negligence. If the case had been tried the general costs of the action, but would have been entitled to receive the costs of the issue of contribu

of

Government. In a suit Palmer v. The Board of Land and Works, 1 V. L. R., Eq. 80, bronght to restrain an illegal sale of Crown land, Mr, Justice Molesworth held that the suit should have been against the Crown represented by the Attorney-General, as the board was merely an agent in the matter, and the Crown could not be restrained by granting an injunction against its agent. That case differs from the present, as there the Crown was setting the Board of Land and Works in motion by the exercise of powers conferred by statute. This does not appear to have teen the case here, though a proclamation reserv-tary negligence. On the former trial, as in the preing the land for purposes of defence, under the Act 24 Victoria, No. 117, might have been called in aid if the council had instituted proceedings. I do not say that the council could not have succeeded, if they had embarked in litigation, but there were difficulties which might reasonably have deterred them, and which might be taken into account in considering whether they were guilty of negligence-unless their duty to protect the road was absolute, and they could not only be absolved from liability for not litigating by proving that litigation must have been unsuccesful. It would have been unnecessary for me to have considered the question of Emerson & Barrow.

sent, this issue was found in her favour, and by the order under which the second trial was held the costs of the first trial are to abide the result of the second. In the exercise of my discretion I direct plaintiff and

defendants to abide their own costs. This avoids

difficulties which would arise on taxation, and is more
favourable to the plaintiff than an order giving costs
In the peculiar circum-
to and against each party.
stances of the case, I think the plaintiff's loss may pro-
perly be mitgated to this extent.

Solicitors, for plaiutiff, Watson, for defendants,

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pressions and the general scope of the Will narrow their operation; Coard e. Holderness ((20 Beav. 147).

Agg for the other defendants (children of the testator)--The testator has not died intestate as to any portion of his estate; in numerous cases realty has been held to pass although the trusts, in terms, were applicable only to personalty; Jarman (4 ed.) 718, 716, 734-7 (quoting Coard v. Holderness 20. Beav. 147); Smyth v. Smyth (8 C. D. 561 and the remarks of Malius V.C. at p. 767).

law proceedings)-cited Suffolk v. Lawrence (W.N.; Higgins, in reply, as to direction of Court to take 1884, 158); Re Robinson (31 C.D. 247) C. A.V.

real estate in Flinders St. Melbourne. David Smith the younger predeceased his father who died in 1887. By his will the testator appointed the plaintiff's his trustees and executors and after disposing of his household furniture in favour of his wife, went on to say I | give and devise all that my freehold tenement in "which I now reside situate at Mortlake unto my "said trustees and upon trust to permit and suffer my "said wife to hold and occupy the same rent free, "during her life and after her decease I direct my said trustees &c. to sell and to dispose of the said messuage and premises for the best price that can be obtained for the same and to pay the money "arising therefrom for the benefit of my children in manner herein after mentioned, and as "to all the rest and residue of my property of whatHIS HONOR, in giving judgment said,-This is an "ever description, I direct my said trustees to get in originating summons to determine the construction of and pay the same from time to time into the proper the will of one David Smith, who was entitled to a hands of my said wife during her life or so long as property known as Cannon's Hotel and Dining-rooms "she remains unmarried her receipt to be a sufficient in Flinders-street. After appointing trustees and discharge for the same and from and after the de-executors he gave his household furniture to his wife. "cease or marriage of my said wife, to pay the same Then he devised to her his freehold house at Mortlake for the maintenance education and support of all and for her life, and after her death he directed his trustees "every my children and should any portion remain to sell, and to pay the money for the benefit of his "after the youngest attains the age of 21 years the children in manner thereinafter directed. The will same to be equally divided amongst the then surviv- then proceeded as follows :"ing children, etc." David Smith the younger left surviving him his widow, Sarah Smith, and six children one of whom is dead. At the time of the death of David Smith the elder, one Albert Button was the tenant in possession of the premsies in Flinders Street, under, as alleged by him, a lease for a long term of years. There were circumstances surrounding this alleged lease which created the impression in the minds of the plaintiffs that it was invalid and probably fraudulent. These being the principal facts the Court was asked for the determination (interalia) of the following questions :-(1) Whether the testator, David Smith the younger died intestate as to the Flinders street property; (2) Whether the plaintiffs ought to take proceedings to test the existence of the above mentioned lease.

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Higgins, for the plaintiff's (after stating facts)-- The plaintiffs are entitled to the approval of the Court as to bringing an action resulting perhaps in heavy expense. [A'Beckett, J.—I do not see how I can advise the executors as to whether a good action lies.] Under an originating summons it is proper to ask this; the plaintiff's may be held liable, on the one hand, to a charge of wilful default in case the action be not brought; on the other hand, to a charge of incurring expenditure which is useless. In cases of difficulty the execution of trusts may be placed in the hands of the Court, O. 55 r. 3. As regards the construction to be placed upon the will, the executors take up a neutral position.

Neighbour for the defendant, Sarah Smith, (widow of testator)—There is an intestacy as to the Flinders street property; although general words are used sufficient to pass real estate, yet the subsequent ex

"As to all the rest and residue of my property, of whatever description, I direct my said trustees to get in and to pay the same from time to time into the proper hands of my said wife during her life, or so long as she remains unmarried, and after the decease or marriage of my wife to pay the same her receipt to be a sufficient discharge for the same, and from for the maintenance, education, and support of all and every my children; and should any portion remain after the youngest attains the age of 21 years, the same to be equally divided amongst the then surviving children." Counsel for the widow contends that the testator died intestate as to the Flinders-street property. Counsel for the children that it is included in the residuary disposition. The argument in favour of intestacy rests altogether upon the inapplicability to real estate of the directions as to the disposition of this residue. I hold that inappropriate expressions do not control the generality of the words "property of whatever description." I act on the principle stated as follows— in Saumarez v. Saumarez, 4, Myln and Craig 331--"The circumstance of his (the testator) using expressions and giving directions applicable only to the consider, or was aware, that this fee would be a part personal estate may prove that he did not at the time of his residue, but if such knowledge be not necessary, as it certainly is not, to give validity to the devise, the absence of it, though so manifested, cannot destroy the operation of the general intent of passing all the residue of his property." The case of Coard v. Holderness, 20 Beavan, 147, relied upon for an intestacy, is opposed to these views, and also to the views expressed in Jarman on Wills, after a review of the decided cases upon similar points. These were ap proved and applied in the case of Smyth v. Smyth ́8 Ch. Div. 561, which affirmed the position "that it is the inclination of the Courts at the present day to hold