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money as aforesaid in respect of the said two allotments having done the work properly. of land but no crown Grant had up to the commencement Mr. Barrett to oppose.

The counterclaim arises of this action been actually issued to the plaintiff in respect of the said land.

out of the same circumstances as the claim arose out The plaintiff claims:

of. In Catlyn v. Batley it does not appear whether 1. Possession of the said premises,

the counter claim was in any way connected with the 2. An injunction to restrain the defendants and either of them claim or not. The defendants are entitled to retain

their agents and servants from removing or otherwise injuring or interfering with the said two houses of the possession of the houses until they have been paid. plaintiff

In no case can the plaintiff set up a counterclaim to DEFENCE.

a defendants counterclaim and therefore a similar The defendants say that:1. They are in possession of the premises mentioned in the application to this could be made in every case where first paragraph of the statement of claim by themselves or

a counterclaim has been set up. In any case the their tenants

plaintiff should pay the costs of this application as the 2. Save that they admit that they built the houses mentioned application is one which should have been made under

in the statement of claim they deny each and every a general summons for directions.
allegation contained in the 2nd and 3rd paragraphs of the
statement of claim.

His Honor after reading the claim and counter3. If the said land was sold to the plaintiff (which the defen- claim said. I think it would be inconvenient to have

dants do not admit but deny)such sale was not in accordance the counterclaim tried with the claim, they are not with the provisions of any act of Parliament for the really connected with one another although they arose alienation of crown lands in force at the time of the alleged out of the same transaction. sale within the Colony of Victoria.

It has been argued that 4. The defendants will object that the 3rd paragraph of the as the defendants have been placed in possession of

statement of claim discloses no cause of action inasmuch the land by the plaintiff the defendants are entitled to as a treasurer's receipt will not confer on the plaintiff such retain possession of the land until the contract price title as he must possess in order to maintain this action. is paid, but this argument cannot prevail

, for if a COUNTERCLAIM. The defendants say that:

contractor erects a house he cannot set up a right of 1. On or about the 6th day of September 1887 the plaintiff lien on the house, he must proceed on his contract. I

advertised for tenders for the erection of certain cottages think therefore, that the summons should be allowed. at Maryborough according to plans and particulars to be with regard to the question of costs I think the con

supplied by the plaintiff's architect. 2. On the 6th day of September 1887 the defendant tendered tention of Mr. Barrett is the correct one.

In my in writing for the erection of four cottages, 2 at £198 18 opinion this application ought to have been made 11 and 2 at £190 139 and the said tender was accepted under a general summons for direction for I think it in respect of the erection of two cottages, at £198 18 11

was intended that the parties should make provision at each. 3. On the 8th September 1887 a written contract was entered

an early stage of the action so that all matters which into by the plaintiff and defendants whereby the de- might arise could be taken under a general summons, fendants agreed to erect the said two cottages but by and that all applications arising in an action previous mutual mistake of plaintiff and defendants the considera- to trial should be taken under such summons. Order tion was expressed to be £198 19s. Od. for the erection of the two cottages instead of £198 188. 11d. for the erection XXX r. I applies to all matters or proceedings in a of each.

cause previous to trial, and therefore I allow the ap4. In the alternative the defendants say they were induced to plication, the plaintiff to pay £3 38. od. as costs of the

enter into the said contract through the fraud of the application and I certify for counsel. This order is of plaintiff. PARTICULARS OF THE FRAUD.

course without prejudice to the defendants' right to The plaintiff immediately before the defendants signed | bring an action for the cause of action on which the the said contract professed to the defendants that the counterclaim is founded. said contract was drawn up in pursuance of the de

Solicitors for plaintiff, Klingeniler, Dickson and fendants'tender and that the consideration was £198 19s. Od. for each cottage the said plaintiff well knowing that the Kiddle ; for defendants, Willan Soms and Colles.

said contract was not so drawn up. 5. The defendants built two cottages for the plaintiff at his

Before Higinbotham J. 23rd June. request. The defendants counterclaim. 1. Rectification of the contract or in the alternative.

THOMSON v. THE EQUITABLE CO-OPERATIVE SOCIETY 2. A declaration that the said contract is null and void.

LIMITED. 3. £400 for work and labor done by the defendants for the plaintiff at his request.

Rules of Supreme Court, 1884, Ordor LXV rp 12 (p. Mr. Mitchell in support. The action is a simple II), Review of taxation-Action by customer against action of ejectment. Order XVIII r 2 provides that banker for the lishonor of a cheque--Recorery by no causes of action except certain ones enumerated plaintiff of less than £50County Court scale of shall be joined with an action for the recovery of land costs-Engrossing brief- Where an action for the without the leave of the Court or a Judge. In Cafyn dishonor of a cheque is framed in contract it must v. Batley 8 A.L.T. 143, Williams J. struck out a be taken to be an action founded on contract— Where counterclaim in a similar case. If the counterclaim the costs of a Supreme Court action are taxed on the were allowed to stand the plaintiff would be prejudiced County Court scale the successful party is not entitled because he could not in answer to the counterclaim to charye 6.1. per folio for engrossing counsel's brief set up a cross action for penalties for not having com under item 30 of the County Court scalr, a fired pleted the contract within the contract time or for not sum being allowed for the same by item 8.



Application on behalf of the plaintiff for a review of admitted that the action is framed in contract and not taxation. The objections which the plaintiff raises to in tort. It is not now necessary to determine the the taxing officer's allocatur will be seen from the taxing question whether an action springing out of a contract officer's answers to such objections.

may not be so framed as to be presented in the form ANSWERS.

of an action for tort arising out of a breach of duty This is an action brought by a customer against his bankers founded on a custom. Generally all actions on the

for not honoring the customer's cheques, in which the dishonor of a cheque really spring from contract, and plaintiff recovered £20, and the question arose on the

are in that sense founded on contract, and the question taxation of the plaintiff's bill of costs whether the action was one founded on contract or one founded on Tort. If of how far costs may be affected does not arise unless it be decided to be founded on contract, the plaintiff having the action appears into progress of the cause as one of recovered a sum not exceeding £50 is entitled to not more tort. If the action is framed in contract it must be costs than he would have been entitled to had he brought founded on contract. In this case it is quite clear his action in the County Court, unless the Court or a judge should otherwise order. The judge made no order. that the action not only springs from contract but that From a perusal of the pleadings in the action it appears it is founded on contract. On the other question the to me that this action is clearly one founded on contractand taking officer is correct. If the costs are to be taxed it is a precisely similar case to that of Marzetti v. Williams, 1 B. and Ad. 415 referred to in Chitty on Contract, 9th been allowed for, although the cost of engrossing a

as in a County Court action this item could not have Ed., p. 57, to support his statement that bankers having sufficient funds of a customer impliedly undertake to pay brief is allowed in the Supreme Court charges, it is not a cheque, &c., drawn by a customer, and further that if allowed for in the County Court. I dismiss the applithe bankers neglect to do so the customer may recover cation with £3 35. costs and certify for counsel. damages against them in an action founded on the implied contract. The plaintiff contends that because his credit

Solicitor for plaintiff

, Hopkins; for defendants, Lynch, has been injured through the defendants dishonoring his McDonald and Stillman. cheqnes that this is an action of wrong, and he recovered £20 for this wrong. But it is submitted that this does

25th June. not alter the foundation of the action, which is based upon the agreement between the parties. It is only a wrong flowing from the breach of contract. The simple question

Before Kerferd, J. is whether the cause of action is founded on contract in the sense of its being founded on a wrongful act, (see

DAVISON V. ORR. judgment of Brett L.J. in Bryant v. Herbert, 2 C.P.D. at p. 392. I decided that it was an action founded on contract and taxed the bill of costs upon the County County Court Statute, 1869 (No. 345), Sec. 42—A Court scale. Having so taxed the plaintiff's bill the defendant cannot apply to have the action remitted plaintiff now objects to the disallowal of the item of

to the County Court under Sec. 42 after he has £7 13s. 4d. for engrossing brief, contending that this brief

entered an appearance. is a necessary copy within the meaning of item No.30 of the County Court scale of costs. There is a fixed sum allowed Application on behalf of the defendant under sec. by the County Court scale for briefs, and which sum has been allowed to the plaintiff. The Registrar of the County 42 of "The County Court Statute, 1869," to remit Court informs me that no more than the fixed sum is ever the action. allowed for the brief, and further, that this item No. 30 is Mr. Benjamin in support. not considered to be allowable for copies of briefs.

Mr. McKean to oppose. The application is made Mr. McArthur in support. Although this action is

too late. It must be made within 8 days from the framed in contract it is really an action founded on service of the writ. In this case the writ was served tort, and therefore the Supreme Court scale of costs

on the 14th June, appearance was entered on the 16th should have been allowed. He cited Bullen and Leake June, and this summons was taken out and served on 3rd. Ed. 91; Marzetti v. Williams, 1, B. and Ad. 415; the 21st June; returnable on the 25th June. The Pontifex v. Midland Ry. Coy., 3 Q. B.D. 26; Tattan defendant has by entering an appearance waived the v. G. W. Ry. Coy., 29 L.J. (Q. B.) 184; Boorman v. question of jurisdiction. Brown, 3 Q.B. 511 ; Stewart v. Bank of Australasia, 9

Mr. Benjamin :—The summons was taken out V.LR. (L.) 240 ; The Commercial Bank v. Hulls, 10 within 8 days provided by the section, and the entering V.L.R. (L.) 116.

of an appearance cannot deprive the defendant of the Mr. Kilpatrick to oppose. It is admitted that the right which is given him by the Statute to take out the action is framed in contract, no doubt the plaintiff summons within the 8 days. could have framed the action in tort but he has chosen

His HONOR said :-I think the defendant by enter to frame it in contract, and he cannot now be heard to ing an appearance has waived the question of jurisdicsay that it is founded on tort. Flemming v. M. S. & L. Ry. tion. I dismiss the summons with £2 2s. costs. Coy., 4 Q.B.D. 81; Bryant v. Herbert, 3 C.P.D. 389;

Solicitors for plaintiff, McKean and Leonard; for Mayne on Damages, 4th Ed., p. 514; Bank of New defendant, Hart and Benjamin. South Wales v. Milrain, 10 V.L.R. (L.) 3 ; Baylis v. Lintot, L.R. 8 C.P. 345;Chitty on Pleading, 3rd Ed. 72. His HONOR said:- This case has been very

well argued indeed, and it would repay a careful examination of all the authorities which have been cited on both sides, but as I feel no doubt on the matter I think it is unnecessary to further delay giving my decision. It is

7th July, 1888.

27th June. Company v. Black 24 W.R. 783 and which is followed

in Anstey v. N. & S. Woolwich Subway Coy. it was Before Kerferd, J.

decided that it was only necessary to specify the par

ticular answers objected to. WATERHOUSE V. HANSLOW.

His HONOR.-It would seem that the case of

Anstey v. N. & S. Woolwich Subway Coy. is reported County Court Statute, 1869 (No. 345), Sec. 42.-Such incorrectly in the Weekly Reporter. I think it is only

actions only as might have been commenced in the necessary to specify the particular answers objected to County Court can be remitted to that Court under which has been done in this case. I disallow the Sec. 42.

objection. Application on behalf of the defendant, under sec. Solicitors for plaintiff, McKean & Leonard; for de42 of “The County Court Statute, 1869."

fendant, Lynch McDonald and Stiliman. The action was for breach of an agreement to employ the plaintiff in England, and for work and

29th June. labor done in that place. Mr. Grave to oppose. The cause of action arose

Before A‘Beckett J. out of the jurisdiction, and therefore the County Court would not have jurisdiction to hear it.

Only such

CROUGH v. CLEARY. action can be remitted as could have been commenced in the County Court.

AccountsAction for redemption of mortgaged Mr. Pirani in support. No doubt this action could premisesRate of interest on sums expeniled in imnot have been commenced in the County Court, but

provements by mortgagee in possession not necessarily the Supreme Court can remit any action to the

the rate specified in the mortgage deed. County Court.

The matter came before the Judge on reference His Honor said :-Sec. 42 provides that actions from the Chief Clerk. The action had been instituted may be remitted to "The County Court or one of the by the mortgagor against the mortgagee for the reCounty Courts in WHICH THE ACTION 'MIGHT HAVE demption of the mortgaged premises. The ordinary BEEN COMMENCED.” To give any meaning to these redemption decree has been made, and the proceedwords the action must be such as might have been ings referred to the Chief Clerk. It appeared that commenced in the County Court. I make no order, the mortgagee has been in possession, and had expended and I shall give no costs.

various sums in improvements. In taking the accounts Solicitor for plaintiff

, Grave ; for defendant, Braham the Chief Clerk had allowed interest on these sums at and Pirani,

the rate specified in the mortgage deed as payable on

the sum secured viz : 15 per cent. To this ruling the

4th July. mortgagor objected. Before Wrenfordsley, J.

Mr. Gill, for the mortgagor, contended that the

interest should not be computed at the rate specified SMITH V. ISON.

in the mortgage.

Quarrel v. Beckford i Maddock p.

281. Watson's Compendium of Equity p. 673, Seton Rules of Supreme Court, 1884, Order XXXI r 11- on Decrees 4th Ed. p. 1067, and Coote on Mortgages In an application for an order that the party inter- be computed at the rate specified in the Judicature

4th Ed. P. IIlI were also referred to. Interest should rogated shall file a further answer to interrogatories

Act. exhibited to him the summons must specify the

Mr. Goldsmith, for the mortgagee, contending that particular answers objected to, but need not specify if the sums advanced were just allowances they stood the particulars of the objections to such answers.

on the same footing as if they had been advanced in Application on behalf of the defendant under Order pursuance of a covenant for further advances. Eyre XXXI. r. 11 for an order that the plaintiff make and v. Hughes 2 Ch. D. p.p. 148, 164. In any event the file further and better answers to the interrogatories of interest should be computed at the rate obtaining the defendant numbered 2, 3, 8, 9 and 10.

before the Judicature Act, as the sums were advanced Mr. Shiels to oppose objected that the summons before that Act came into operation. was bad inasmuch as it did not specify the particulars His HONOR said,—The case cited by Mr. Gill of the objections to the answers already filed. Anstey decides that the rate of interest fixed by the mortgage v. North and South Woolwich Subway Co. 27 W.R. is not necessarily the rate to be charged. I agree with 575

Mr. Goldsmith's proposition that the sums advanced Mr. Kilpatrick in support. The summons specifies for improvements are to be taken as part of the sum the particular answers objected to, and that is all that to which the security extends. The mortgage is partly is necessary. The case cited is evidently incorrectly a security for those advances, but I do not think that reported for the case as reported in XI Ch D. 439 it follows that they should bear the same rate of only decides that the summons ought to specify the interest as those to which there is a special covenant. interrogatories or parts of interrogatories to which a The rate ofinterest fixed by the mortgage is an exorbitant further answer is required. In Chesterfield Colliery one, and I do not think it is a proper rate to be



allowed for improvements. The interest is to be document cannot be comprehended in any interpretaallowed at the rate before the Judicature Act viz. 8 per tion allowed by the amending section. The courts cent.

have always done what they could to regard the Solicitors for plaintiff, Watson Morgan & Gill; for signature as at the end of the document, where its defendant, Daries and Campbell. agents for Salter and position could in any sense be assigned to the end, P certon.

but this cannot be done where, as here, the end of the

will had manifestly not been reached. It is not .PROBATE JURISDICTION.

enough to say that a signed portion would be effica

cious if standing alone, and therefore that the will can Before a'Beckett, J.

be considered as ending before the signature. An 21st and 28th June. attempt to induce the court to deal thus with a will

not signed at the end was made in the case of SweetIN THE WILL OF JOHN THOMAS RYAN, DECEASED. land 1. Sweetland, 4 Swabey and Tristram, p. 6, in

which a formal will was written on six sheets. The Wills Statute, 1864 (No. 222), Sec. 8 Practice Probate first five contained the essential beneficial dispositions;

-Will-Printed form-Signature of testator in the sixth, trustees clauses and formal matter. By serted in blank space following the disposing clauses, accident the sixth sheet was left unsigned, all the and above the appointment of executors--Not a others being signed by the deceased, and attested. valid testamentary paper.

The court refused to grant probate of the five sheets Mr. J[cHugh moved for a grant of administration as containing the will, and pronounced for an intestacy. c.t.a., to one of the residuary legatees named in the The words of the judgment, which were repeated with will, treating the appointment of executors as in-approval in Margary v. Robinson, are equally applicoperative. 27 Vic. (No. 222), Sec. 8.

able to the present case. “The court would not be justiHis Honor, in delivering his reserved judgment, fied in fixing upon a signature in the midst of what said :-In this case the intending testator meant to the testator intended as his will and treating it as an make his will by using a printed form of one page execution of all that preceded it, and granting probate which after the formal commencement leaves a blank of so much of the will, to the disregard of the respace for the operative dispositions of the will, and at mainder. This in many cases might produce a testathe bottom of the blank space the form of will is mentary result far from the testator's wishes; and continued by the printed words, “And I hereby though in this case it is said that no disposition of appoint

execut In witness whereof I property is rejected the principle is the same. No have hereunto set my hand this

case cited in the argument has gone this length, and Then follows the attestation clause, and abundant it does not I think become the court, in a laudable space is left for the signatures of the testator and anxiety to give effect to the document, to twist or witnesses. The deceased filled up the formal heading, distort the plain meaning of the statute by ingenious filled up part but not all of the blank space by dis- construction, and virtually break the law to mend the positions of his property, and filled up the portion of testator's blunder.” My refusal of the present applicathe form relating to the appointment of executors, but tion is, I think, not in accord with the course taken in instead of signing at the end of the will, he signed the will of Thomas Holley, 9 Vict. L.R., P. 52, but is above the appointment of executors in the blank space reconcilable with the decision in the will of W. White, following the disposing clauses. Application is now 12 Vict. L.R. 293. made by one of the persons named in these disposing Proctors for applicant, Casey and O'Halloralı. clauses as residuary legatee for administration, with the will annexed, treating the appointment of executors as inoperative under the Wills Act, because following the signature of the testator. On reference to the

Before A'Beckett J.

22nd & 23rd June. authorities I think that the application cannot be granted, that the signature is altogether inoperative, THE TRUSTEES EXECUTORS AND AGENCY COMPANY and that the so-called will is not a valid testamentary

V. MUNRO. paper. See Margary and Layard v. Robinson, L.R. Construction of Will- Left to children at twenty-one-12, Probate Division, p. 8. In that case the intending

class ascertained upon eldest attaining twenty-one. testator had put his mark in the middle of a paper Originating summons to obtain the decision of the meant for his will, and there, as here, the parties Conrt as to the construction of a part of the will of interested sought to support the document as a will, Joseph Sutherland deceased. so far as it was written above the mark if the mark Mr. Bayles appeared for the plaintiff. Vr. Iriggins could not be treated as sufficient signature to the for the defendant. whole document. In refusing to grant administration, His Honor said, in delivering his reserved judgSir James Hannen points out that the words of the ment.—The Trustees Executors and Agency Company section, which give a liberal interpretation to the Limited are Trustees of a sum of £5000 which was words “foot or end” of the will, leave it still necessary bequeathed by will upon trusts declared as follows:that the will shall be signed at the foot or end, and “To invest, and to stand possessed of the same in that a signature in the middle of an incompleted' trust for the child if only one, or all the children if

day of



more than one, of Donald Munro, who, either before meet the contingency of other children being born. or after my death shall have attained or shall attain the I declare that no after born child of Donald Munro age of 21 years, and if more than one equally, with would be entitled to a share in the fund, and order power for my said trustees to apply the whole or part distribution subject to payment thereout of the taxed of the annual income of the share of each child, while costs of the company and of the defendants to the such share shall be contingent for his or her mainten- originating summons, the company's costs to be taxed ance and education, accumulating the unapplied as between solicitor and client. income by investing the same and disposing of the Solicitors for plaintiff

, Malleson, England and Stewart; accumulations as part of the same share ; and also in for defendant Blake and Riggall. the discretion of my trustees to apply so much, not exceeding one-half, as my trustees shall think fit, of the share of each child, whether vested or contingent

Before a'Beckett J. for his or her advancement in life, or otherwise for his

20th & 28th June. or her benefit." Donald Munro had six children all

DILNOT V. HINKLEY. living at the death of the testator, and all now of age. They have asked to have the fund divided between

Will_Construction, Real Property Statute 1864. 8. them, and the company are unwilling to divide unless

150Locke King's ActDevise of mortgaged lands directed by the Court having regard to the possibility

"after the payment of my just debts"Words importof Donald Munro having another child or children

ing contingency—Should my daughter also die. born to him, who might claim to share in the fund.

Should either of them die—The words after The children now living insist that no after-born child

the payment of my just debts" preceding discould acquire an interest in the fund. If the trust

tribution of real estate are not sufficient to show a had not contained any power of advancement there is

contrary or other intention so as to exonerate the real no doubt that this contention would be correct, and

estate from the payment of a mortgage existing over that the general rule would apply, which in the case of

it at the time of the death of the testatorThe words an immediate gift to the children of it on their attaining

importing contingency referred to the time of the twenty-one allows the fund to be distributed amongst

death of testator. the children living at the time when the first child The action was brought by George Dilnot, trustee of attains a vested interest, not keeping the fund un- the property of Bessie Kook, an insolvent, and by distributed during the whole life of it in the interest of Adelina Kook, a minor, (by her next friend), to obtain other children who might subsequently come into the decision of the Court as to the construction to be existence. This rule of convenience, as it is called, placed on the will of John August Kook, deceased. is a rule of construction, and yields to any clearly Mr. Topp for the plaintiffs, referred to Brown v. expressed intention that the fund shall be kept in hand Ablott, 7 V.L.R. (E.) 121; Ratten v. Denbigh, 13 for after-born children. In the case of Iredell v. Iredell V.L.R. 456, and the cases there cited, Jarman on Wills, 25 Bevan, 485, a power to advance half of shares, p.p. 752, 756. whether vested or contingent, and to allow maintenance Mr. Cussen for the defendants, referred to Pembroke out of vested as well as contingent shares was with v. Friend, 1 J and H. 132; Woolstencroft v. Woolstenother peculiarities considered sufficient indication of croft, 2 D.F. and J. 347 ; Brownson v. Lawrence, L.R. such intention. But the strongest case against the 6 Eq. 1; Isaacs v. Moss, 13 V.L.R. 85; Jarman on right to immediate distribution is that of Bateman v. Wills, p. 753. Gray, 6 Equity, 215. In that there was a power of ad His Honor in delivering his reserved judgment vancement out of vested shares as here, and no power of said:- This case involves two questions of construction, maintenance out of vested shares as here, and the power arising on a will which, so far as material, is set out in of advancement out of vested shares was held to exclude paragraph 1 of the statement of claim as follows: the general rule. Strong observations of disapproval “After the payment of all my just debts, funeral and of that case are to be found in the later case of other expenses

, I give, devise, and bequeath unto my Gimblett v. Purton, 12 Equity, p. 427; but they do wife and only daughter Adelina, one-third of all my not induce me to disregard Bateman v. Gray, as an real estate, to be held by my wife until she marries or authority. There was, however, a scheme of disposition dies, then the property to become my daughter’s; and by the will in Bateman v. Gray, materially different should my daughter also die, the property to revert to from that of the £5,000 in the present case. The fund my three sons in equal shares. All the remainder of there was subject to annuities, which might have my real and personal estate to be equally divided indefinitely delayed its distribution, and I think the between my three sons, and should either of them die present case is distinguishable on that and on other his share falls to the survivors.” The first point is as to grounds afforded by comparing the two wills. Here whether the words “after payment of all my just debts” the power of advancement may have been intended to have the effect of exonerating the real estate from a enable the trustees to break off a portion of the £5,000 mortgage existing over it at

time of the testator's before the whole fund became distributable by each child death, and whether having regard to the general scheme entitled having attained 21. Whether this be the meaning of disposition, any contrary intention sufficient to exor not, I do not think the clause sufficient evidence of clude the operation of section 150 of the Real Property an intention that the fund shall be kept in hand to Statute, is indicated by the will.

Brown v. Abbott, 10

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