lands to pass under words capable, per se, of comprehending them notwithstanding their association with terms applicable to personalty only." Holding that the residuary clause includes real estate I think that it may be taken to devise the estate to the trustees by implication upon trust to sell for the purposes of the will (see cases collected by Jarman on Wills, 4th edition, vol. 2, p. 304-305). There is no express devise of the legal estate in remainder in the land in which the wife takes a life-interest, and the will seems to be drawn on the assumption that the mere appointment of persons as trustees gives them the control of the property as to which they are appointed. The direction to "get in" and "pay" and to "divide," sufliciently indicate an intention that the trustees shall sell the property as to which these directions are given. Counsel for the widow concedes that she takes no more than an estate during widowhood in the income of the residuary property. This appears to me the proper construction of the clause, and I shall make a declaration accordingly. The loose and confused language of the testator leaves much doubt as to what he really intended. The construction I have adopted seems the most reasonable, though not the only construction which the will admits of. The summons seeks the direction of the Court upon another point, as to taking proceedings to set aside a lease of the Flinders-street property, purporting to have been made under part V. of the Real Property Statute. The trustees are unwilling to assume responsibility by bringing an action without the sanction of the Court. Counsel for the widow, and for the adult children, state that they were desirous that leave should be given to the trustees to bring an action. I express no opinion upon the facts mentioned in the affidavits, as showing the invalidity of the lease, or as to the probability of success in impeaching it. I leave the trustees to exercise their own discretion in the matter. All that I intend by giving leave to bring an action is to justify the trustees as between themselves and their cestuis que trust in incurring expense in obtaining legal advice and acting upon it with regard to this lease. Declare that the real estate of the testator not specifically devised was effectually disposed of by the directions of his will as to his residuary property, and was thereby devised to the trustees of the will upou trust for sale, and that the widow of the testator became entitled during her widowhood to the income to be produced by such real estate and by investment of the proceeds of sale thereof. Order that the plaintiffs be at liberty to take proceedings to test the validity of a lease of the testator's real estate in Flinders-street to Albert Button. Order that the costs of plaintiffs and defendants be taxed, plaintiffs' costs as between solicitor and client, and that the plaintiffs may retain their own costs and pay the costs of the other parties when so taxed out of the moneys now in their hands as trustees of the said will. Solicitors for plaintiff's Cleverdon, Westley & Dale; for defendants Sarah Smith, McKinley; for other defendants Hart & Benjamin.

(Before Hodges, J.)

RE CROZIER, A LUNATIC.

June, 6.

Lunacy Statute," s.s. 101, 102-Receipts-Net profits.

The percentage of 5 p.c. mentioned in the 101st section of the Lunacy Statute" is chargeable on all moneys collected by or coming under the control of the committee of a lunatic irrespective of the fact that moneys received are to be subsequently disbursed, either wholly or partly, in the ordinary course of managing the lunatic's estate.

Motion for an order under section 102 of The Lunacy Statute enforcing the payment, under section 101, of the sums of L291 19s. and L636 6s. 6d. in respect of a percentage at the rate of L5 p.c upon money collected by or which has come under the control of James Angas Johnson, the committee of the estate of the lunatic as shown in his accounts filed the 8th December, 1887, and 5th November, 1888.

--

The motion was based upon the affidavit of the Master in Equity which stated, so far as is material to this report, that the committee had been called upon to pay the above-mentioned sums; in response to this demand the solicitors for the committee had written to the following effect ;—' In respect to your letter claiming 5 per cent. on the receipts of the committee in this estate, we beg to state that we have submitted the same to counsel who considers that the committee should ask you to have the question decided as provided by section 102 of the Act" Section 102 gives power to the Master to apply to the Court. An affidavit was filed by the committee, which, after referring to the accounts filed by him, went on to state; Amongst the receipts of the said estate are the proceeds of sheep sold by me from off the said "station but when sheep are sold from off the working "station store sheep are usually purchased and placed "on the station to be fattened, shorn and sold. The "claim now made by the master in lunacy would in"clude commission on the resale of the sheep put on "as stores this to a great extent being a further pay"ment of commission on the same corpus. The total "working of the said station for the year 1887, in"cluding interest and all other charges resulted in a loss "of £1352 6s. 2d, and for the year 1888 in a profit of "£1199 18s. 2d." The object of the motion, accordingly, was to recover a sum of £5 per cent. on all monies received by the Committee without reference to whether those moneys represented net profits or were the result of sales of sheep, etc., which had afterwards to be replaced,

Topp (with him 4gg), for the Master in EquityThe application is under Sec. 102 of the “Lunacy Statute;" a percentage is chargeable on all moneys collected by or coming under the control of the Com

that the mortgagor shall be entitled to recover from the mortgagee a sum equal to 9d. for every £ payable by such mortgagor for interest to such mortgagee, as if such sum were money paid to the use of such mortgagee, or such sum may be deducted from or set off against the interest then due or thereafter to become due. 1st. It was contended for Mrs. Westbrook that Rumney had a discretion to deduct the duty every year and had not done so. The answer is, that section 34 gives a right of action as well as power to deduct or set off, and I do not think that refraining from acting on the power would alone release the mortgagee from liability to pay the duty. It could not take away the right of action, unless it could be proved that there was annually a gift of the amount of duty to Rumney to Mrs. Westbrook, and of this is no evidence except the fact that he did not deduct the duty. I do not think that this would be a suffi- | cient defence. The alternative modes of recovering the duty viz., by deductingit, or by set-off, stand in the same position as an action for the duty, where an action would lie deduction and set-off could beexercised, and vice versa. 2. It was contended that the deduction could only be made annually. There is nothing in the Act to create such a limit, and as the Act converts the duty paid into a debt, due by the mortgagee to the mortgagor, it would appear unreasonable for a mortgagor to be compelled to pay the interest in full, and then bring an action to recover 9d. in the £ on the amount paid, instead of deducting it from the interest he is paying, and that because he or his agent has omitted to deduct the duty during the current year. 3. As to three years duty, the statute of limitation was set up. But when a statutory debt is created as here, the period of limitation is 20 years, not six (see Leake 167). And the section almost speaks for itself, as interest on a mortgage can be sued for within 12 years, it would be very hard if sued for 12 years' interest the mortgagor could only deduct six years' duty. 4. The question has arisen though the action of Rumney and his executor in not having made the deductions annually, and they may have induced a belief that it was never intended to deduct it, and moreover allowing the amounts to accumulate for several years, and then to deduct the total from a half year's income may be pro ductive of hardship, and under these circumstances I make no order as to costs.

(Before Mr. Justice Adams.)

IN CHAMBERS.

TYLER V. MCARDELL AND OKS.

June 4th, 1889.

Small Debts Act (51 Vict. No. 23) s.s. 130, 130 and Schedule 2-Costs-Costs as between party and party to be taxed on account claimed unless Court orders to the contrary.

The facts of the case that are material are set out in the decision.

The Solicitor General, for plaintiff.
R. Butler, for defendant.

MR JUSTICE ADAMS:-There is an application arising out of an action tried before me at the last Small Debts sitting of the Supreme Court in which the amount the plaintiff claimed was L13 11s. 8d., being the alleged balance of an account: judgment was in plaintiff's favor for L2 6d. 4d., and no special direction as to costs was applied for before the taxation, as required by section 130 of the Small Debts Act. The costs were taxed by the Registrar as being regulated "by the amount claimed,' as shown in schedule 2 of the Small Debts Act, subject, however, to the result of any application that might be made to me to order the taxation to be regulated by the "amount recovered." In my judgment the costs were correctly taxed on a higher scale, that is to say, on the amount claimed, The Small Debts Act, section 131, enacts that the fees and charges contained in schedule 2 shall be payable as between party and party, and it is to be gathered from the language of that schedule that all costs are to be taxed and paid on the amount claimed, and not necessarily on the amount recovered under the action unless there should be a direction from the Court to the contrary. I was referred by the defendant's solicitor to the rule of practice 131 dated 17th day of February, 1885, which provided that in all actions founded on a contract the scale of costs to be allowed to a successful plaintiff shall be regulated by the amount recovered and not by the amount claimed, unless the Court at the trial otherwise directs, but in my opinion the rule referred to is virtually repealed by section 130 of the Smal Debts Act, 1887.

OF THE

VOLUME X.

VICTORIA.

Abattoirs Statute 1869-(No356) Section 28-Mandamus-Sec. tion 28 only requires the Municipal Council to satisfy themselves that the situation of the slaughterhouse is not objectionable before they grant a license for it, and in arriving at such a decision they may act on evidence which would be inadmissible in a Court of law, or on their own know. ledge of the locality-The act does not require the Council to sit as a Court and take evidence. Re the City of Collingwood; Ex parte Woolcock and Another, 268 Accounts-Action for redemption of mortgaged premises--Rate of interest on sums expended in improvements by mortgagee in possession not necessarily the rate specified in the mortgage deed. Crouch e. Cleary, 4. Passing accounts before Non-production Chief Clerk vouchers by accounting party-Con sent. On the defendants passing accounts before the Chief Clerk a difficulty arose by reason of the nonproduction of vouchers. The plaintiff was willing that the accounts should be accepted without any other verification than the defendant's affidavit. Held, on an application to vary the judgment, that no variation was necessary, it being sufficient that the plaintiff should state before the Chief Clerk that he consents that

of

the accounts should be passed without production of vouchers. Keiller r. Themson, 168. Admission by not answering letter-See Evidence Me Ewan r. Poole, 202.

|

|

Adverse possession—See REAL PROPERTY STATUTE 1864. Pearson r. Russell, 132. Affidavits-JUDICATURE ACT 1883, Sec. 63-All affidavits, etc, in any cause or matter depending in the Court sworn and taken in any foreign part out of Her Majesty's dominions, shall be sworn and taken before any of Her Majesty's consuls or viceconsuls. In the estate of Roper, 161. Aliens.-Act of State Sovereign State Prerogative of excluding aliens-Loss of prerogative by desuetude.

Constitution-Constitution Statute 18 & 19 Vic. c 59--Constitution Act 19 Vic.-Responsible Government Governor- Commission and instructions -Matters local to Victoria-Chinese Immigrants Act 1865 No. 269 and Chinese Act 1881 No. 723.

Where an alien being a Chinese immigrant within the meaning of the Chinese Immigrants Acts 1865 and 1881 was prevented from landing by collector of Customs whose act was authorised ratified and adopted by the Commissioner of Trades and Customs Her Majesty's Responsible Minister and by Her Majesty's Government for Victoria.

Held That the jurisdiction of the Court was not ousted by the plea that the Act complained of was an Act of State which being a wrongful Act done to an alien is a challenge to war or an invitation to treat and can only be authorised or ratified by a Sovereign State or by some agent authorised by the Sovereign on that behalf.

Held (by the majority of the Court, Williams, Holroyd, A'Beckett and Wrenfordsley J.J.) that the prerogative of excluding Aliens even if existent in England and even if it be local to Victoria and not controlled

by the Chinese Immigration Acts cannot be exercised here by the Governor of Victoria either with or without the advice of his Responsible Ministers or by Responsible Ministers alone inasmuch as the powers and prerogatives exerciseable in Victoria are limited by the terms of the grant and neither the Constitution Act nor the Governor's Com mission and Instructions contain such a prerogative. (By HOLROYD J )

That the right of excluding alien friends if it ever existed as part of the prerogative in England has been excluded by constitutional usage hardening with time.

That

(By the minority of the Court Higinbotham, C. J. and Kerferd J.) this prerogative if existent in England is not controlled by the Chinese Immigrant Acts which give the Immigrants no statutory right to land, is not part of the prerogative of peace and war or contrary to any rule of International law; that it passed by the Constitution Act as a necessary incident of self-government in this colony and so far as it may be necessary for the welfare and protection of the people of Victoria it is exercisable by the Governor in whom it is vested by law on the advice of Responsible Ministers and his acquiescence is sufficiently proved by the retention of Ministers in office

and

that the rule of interpretation expressio unius exclusio est, alterius should not be applied where the intention of the Statute appears to forbid it.

(By Kerferd, J.)-That the plaintiff has no right of action on the further ground that he was here illegally and in violation of the Chinese Immigrants Acts, 1865 and 1881, as a number of Immigrants in excess of the number allowed by the Statute

were brought by the ship. (Per Higinbotham, C. J.,)-The Constitution Act is the only source of the public rights of the people of Victoria, and the design of the framers of the Act of a complete system of self government has found adequate though obscure legal expression therein. The two bodies created by the Act, the Government and Parliament, have co-ordinate and interrelated but distinct functions. The executive Government are responsible to Parliament, and alone, have the right to guide and control the Governor in the exercise of his statutory powers, with regard to the internal affairs of Victoria. Subject to the approval of Parliament and so far as not inconsistent with any Statute law or treaty, the Executive Government have a legal right and duty to do all acts necessary or expedient for the proper administration of the law, the conduct of public affairs., and the security safety and welfare of the people of Victoria. The question whether a power may be necessary for the government to exercise, is for the Court, the question whether the occasion for its exercise has arisen is for the Government, who are responsible only to Parliament. All prerogatives in Victoria are vested in the Governor to be exercised on the advice of responsible Ministers and for all purpose within the Constitution Act, he is the local sovereign of Victoria. Those provisions in his commission and instructions which purport to convey powers already conveyed by the Act are void, and others inconsistent with the Act are illegal. The court is at liberty in construing the Act to consider the special qualifications of the framers of the Bill, and the history and external circumstances which led to its enactment, and for that purpose to consult any authentic, public or historical documents. (Per Williams, Holroyd and A'Beckett,

J. J.,)-The proper way in construing this or any other Act of Parliament is to look at the Act itself and not at speeches or despatches. (Per Williams, J.,)-The principles of interpretation that all such powers as may be necessary to the working of a system, and without which the system itself would have no vitality should be inferred, should not be abused to create a primary power. The exercise of the prerogative of mercy in this colony is not derived from the Constitution Act but from other sources.

(Per Holroyd, J.)—In interpreting the Constitution Act it is the intention of the Imperial Parliament that should be sought for, and the maxim "expressio unius est exclusio alterius should be rigidly applied since the Crown is not bound or a prerogative affected unless expressely mentioned. It is not a conclusion of law that Her Ministers ratification is Her

Majesty's ratification, but only a presumption liable to be rebutted. As the penalty under the Chinese Immigrant Acts for bringing a number of immigrants in excess of the statutory number, is imposed on the master, the immigrant is legally here though illegally brought here.

(Per A'Beckett, J.)-Responsible Government has no definite comprehensive meaning and responsibility may attach to persons having powers strictly limited and its exercise does not indicate the extent of the authority from which it arises. The im plication of the assent by the Crown from the continuance of Ministers in office can only arise as to Acts which Ministers can lawfully do as such. (Per Wrenfordsley, J.) The prerogative right of the Crown to keep out aliens still exists, although its exercise may by the custom or legisla tive action of modern times be subject to Imperial Ministerial responsibilities. Toy v Musgrove, 60. Appeal-A plaintiff who is non-suited in deference to the opinion of a judge Α can appeal from such nonsuit. parent may sue in his own name for loss of service sustained by him from a tort of the defendant towards a child of such parent. Dally Bellinger 159. Appeal

to Privy Council -Supreme Court (constitution 1852) Act, 15 Vict., No. 10 Section 34-Extension of time for entering into the requisite security. Pearson r. Russell 209.

-Orders in Council 9th June, 1860-Where, in an application for leave to appeal to the Privy Council, the amount of the judgment sought to be appealed from is under £500, the Court can take into consideration the fact that claims arising out of the same right have been made or are expected to be made against the applicant. Bailey v. Mayor &c. Port Melbourne 44.

-Orders in Council, 9th June, 1860-Where damages have to be assessed in an action, an application for leave to appeal to the Privy Council should not be made until after assessment. Toy v. Musgrove 98.

-Order in Council 9th June, 1860-Rules of Supreme Court, 1884, Order LXV. r. 1--Appeal to Privy Council on the question of costs. Wolfe r. Lang 117.

Execution on a final judgment will not be stayed pending a petition to the Privy Council for leave to appeal. McSwain r. McMillan, 2 V.L.R., L. 271, dissented from. Chun Trong Toy v. Regina, 170.

-See CONSTITUTION ACT 1852. Pearson r. Russell, 272. Assignee, powers INSOLVENCY STATUTE Blight 248.

of -SEE 1871. Re

Bill of costs-See Solicitor. Wikie v. Groom, 239.

Bills of Exchange Act, 1883 (No. 772) sec. 70--Where the

plaintiff did not apply for an order that the loss of the promissory note sued upon should not be set up until after the defence had been delivered, the order asked for was made on the terms of the plaintiff paying the costs of the application, and of the defence setting up the loss of the instrument. Harkness e. Dixon 137.

Carriers and Innkeepers Statute 1859 (No. 78)-Coffee Palaces-Money in parcel or package— Coffee palaces are common inns, and innkeepers their proprietors are within the Carriers and Innkeepers Statute No. 78. Money contained in a purse or package brought into an Inn in the pocket of a guest is not "money contained "in any parcel or package brought into an inn" within the meaning of sec. 1-Act No. 78-And where a purse containing money is stolen from the bedroom of a guest the onus is on the innkeeper to prove the facts which entitle him to the protection of the Statute. Millar r The Federal Coffer Palace Company Limited. 235.

of

Case, jurisdiction of Justices to state a.--Duty of Justices to file affidavits. Reg. 7. Fetherstone; Exp. Lovey 124. Cash payment-See sale Land. Donaldson v. Noble 37 Caveat-When the Full Court is not sitting, a Judge in Chambers, if satisfied with the urgency of the matter, may hear and determine an application to remove a caveat. re Johnson 1. Certificate of title-Plan in margin; Figured dimensions; Abuttals; Negligence in survey; General damages; Hard judgment; Where the Mitigation; Costs. figured dimensions on a plan in a certificate of title and the fact that the boundaries are shown by straight lines would lead to a wrong inference as to the dimensions of the land but abuttals are shown correctly, the registered owner is entitled to all the land which actual measurement on the ground would show to lie between those abuttals. Damages for negligence in survey by omission of some of the figured dimensions through which the plaintiff is left with an apparent title to less than he