The defendants say that:

1. They are in possession of the premises mentioned in the first paragraph of the statement of claim by themselves or their tenants

2. Save that they admit that they built the houses mentioned in the statement of claim they deny each and every allegation contained in the 2nd and 3rd paragraphs of the statement of claim.

3. If the said land was sold to the plaintiff (which the defendants do not admit but deny)such sale was not in accordance with the provisions of any act of Parliament for the alienation of crown lands in force at the time of the alleged sale within the Colony of Victoria. 4. The defendants will object that the 3rd paragraph of the statement of claim discloses no cause of action inasmuch as a treasurer's receipt will not confer on the plaintiff such title as he must possess in order to maintain this action. COUNTERCLAIM.

The defendants say that:1. On or about the 6th day of September 1887 the plaintiff advertised for tenders for the erection of certain cottages at Maryborough according to plans and particulars to be supplied by the plaintiff's architect. 2. On the 6th day of September 1887 the defendant tendered in writing for the erection of four cottages, 2 at £198 18 11 and 2 at £190 13 9 and the said tender was accepted in respect of the erection of two cottages, at £198 18 11 each. 3. On the 8th September 1887 a written contract was entered into by the plaintiff and defendants whereby the defendants agreed to erect the said two cottages but by mutual mistake of plaintiff and defendants the consideration was expressed to be £198 19s. Od. for the erection of the two cottages instead of £198 18s. 11d. for the erection

of each.

4. In the alternative the defendants say they were induced to enter into the said contract through the fraud of the plaintiff.

PARTICULARS OF THE FRAUD. The plaintiff immediately before the defendants signed the said contract professed to the defendants that the said contract was drawn up in pursuance of the defendants' tender and that the consideration was £198 19s. Od.

for each cottage the said plaintiff well knowing that the said contract was not so drawn up.

5. The defendants built two cottages for the plaintiff at his request.

The defendants counterclaim.

1. Rectification of the contract or in the alternative.

2. A declaration that the said contract is null and void.

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

Mr. Mitchell in support. The action is a simple action of ejectment. Order XVIII r 2 provides that no causes of action except certain ones enumerated shall be joined with an action for the recovery of land without the leave of the Court or a Judge. In Caffyn v. Batley 8 A.L.T. 143, Williams J. struck out a counterclaim in a similar case. If the counterclaim were allowed to stand the plaintiff would be prejudiced because he could not in answer to the counterclaim set up a cross action for penalties for not having completed the contract within the contract time or for not

having done the work properly. Mr. Barrett to oppose.

The counterclaim arises out of the same circumstances as the claim arose out of. In Caffyn v. Batley it does not appear whether the counter claim was in any way connected with the claim or not. The defendants are entitled to retain possession of the houses until they have been paid. In no case can the plaintiff set up a counterclaim to a defendants counterclaim and therefore a similar

application to this could be made in every case where a counterclaim has been set up. In any case the plaintiff should pay the costs of this application as the application is one which should have been made under a general summons for directions.

HIS HONOR after reading the claim and counterclaim said. I think it would be inconvenient to have the counterclaim tried with the claim, they are not really connected with one another although they arose out of the same transaction. It has been argued that as the defendants have been placed in possession of the land by the plaintiff the defendants are entitled to retain possession of the land until the contract price is paid, but this argument cannot prevail, for if a contractor erects a house he cannot set up a right of lien on the house, he must proceed on his contract. I think therefore, that the summons should be allowed. With regard to the question of costs I think the contention of Mr. Barrett is the correct one. In my opinion this application ought to have been made under a general summons for direction for I think it was intended that the parties should make provision at an early stage of the action so that all matters which might arise could be taken under a general summons, and that all applications arising in an action previous to trial should be taken under such summons. Order XXX r. 1 applies to all matters or proceedings in a cause previous to trial, and therefore I allow the application, the plaintiff to pay £3 3s. od. as costs of the application and I certify for counsel. This order is of course without prejudice to the defendants' right to bring an action for the cause of action on which the counterclaim is founded.

Solicitors for plaintiff, Klingender, Dickson and Kiddle; for defendants, Willan Sons and Colles.

Before Higinbotham J. 23rd June.

THOMSON V. THE EQUITABLE CO-OPERATIVE SOCIETY LIMITED.

Rules of Supreme Court, 1884, Order LXV rr 12 (p. 11), Review of taxation-Action by customer against banker for the dishonor of a cheque-Recovery by plaintiff of less than £50-County Court scale of costs-Engrossing brief- Where an action for the dishonor of a cheque is framed in contract it must be taken to be an action founded on contract- Where the costs of a Supreme Court action are taxed on the County Court scale the successful party is not entitled to charge 6d. per folio for engrossing counsel's brief under item 30 of the County Court scale, a fixed sum being allowed for the same by item 8.

Application on behalf of the plaintiff for a review of taxation. The objections which the plaintiff raises to the taxing officer's allocatur will be seen from the taxing officer's answers to such objections.

ANSWERS.

This is an action brought by a customer against his bankers for not honoring the customer's cheques, in which the plaintiff recovered £20, and the question arose on the taxation of the plaintiff's bill of costs whether the action was one founded on contract or one founded on Tort. If it be decided to be founded on contract, the plaintiff having recovered a sum not exceeding £50 is entitled to not more costs than he would have been entitled to had he brought his action in the County Court, unless the Court or a judge should otherwise order. The judge made no order. From a perusal of the pleadings in the action it appears to me that this action is clearly one founded on contract and it is a precisely similar case to that of Marzettiv. Williams, 1 B. and Ad. 415 referred to in Chitty on Contract, 9th Ed., p. 57, to support his statement that bankers having sufficient funds of a customer impliedly undertake to pay a cheque, &c., drawn by a customer, and further that if the bankers neglect to do so the customer may recover damages against them in an action founded on the implied contract. The plaintiff contends that because his credit has been injured through the defendants dishonoring his cheques that this is an action of wrong, and he recovered £20 for this wrong. But it is submitted that this does 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 is whether the cause of action is founded on contract in the sense of its being founded on a wrongful act, (see 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 Court scale. Having so taxed the plaintiff's bill the plaintiff now objects to the disallowal of the item of £7 138. 4d. for engrossing brief, contending that this brief is a necessary copy within the meaning of item No. 30 of the County Court scale of costs. There is a fixed sum allowed by the County Court scale for briefs, and which sum has been allowed to the plaintiff. The Registrar of the County Court informs me that no more than the fixed sum is ever allowed for the brief, and further, that this item No. 30 is not considered to be allowable for copies of briefs. Mr. McArthur in support. Although this action is framed in contract it is really an action founded on tort, and therefore the Supreme Court scale of costs should have been allowed. He cited Bullen and Leake 3rd. Ed. 91; Marzetti v. Williams, 1, B. and Ad. 415; Pontifex v. Midland Ry. Coy., 3 Q.B.D. 26; Tattan v. G. W. Ry. Coy., 29 L.J. (Q. B.) 184; Boorman v. Brown, 3 Q.B. 511; Stewart v. Bank of Australasia, 9 V.L.R. (L.) 240; The Commercial Bank v. Hulls, 10 V.L.R. (L.) 116.

Mr. Kilpatrick to oppose. It is admitted that the action is framed in contract, no doubt the plaintiff could have framed the action in tort but he has chosen

to frame it in contract, and he cannot now be heard to say that it is founded on tort. Flemming v. M. S. & L. Ry. Coy., 4 Q.B.D. 81; Bryant v. Herbert, 3 C.P.D. 389; Mayne on Damages, 4th Ed., p. 514; Bank of New 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

admitted that the action is framed in contract and not in tort. It is not now necessary to determine the question whether an action springing out of a contract may not be so framed as to be presented in the form of an action for tort arising out of a breach of duty founded on a custom. Generally all actions on the dishonor of a cheque really spring from contract, and are in that sense founded on contract, and the question of how far costs may be affected does not arise unless the action appears into progress of the cause as one of tort. If the action is framed in contract it must be founded on contract. In this case it is quite clear that the action not only springs from contract but that it is founded on contract. On the other question the taking officer is correct. If the costs are to be taxed been allowed for, although the cost of engrossing a as in a County Court action this item could not have brief is allowed in the Supreme Court charges, it is not allowed for in the County Court. I dismiss the application with £3 3s. costs and certify for counsel. Solicitor for plaintiff, Hopkins; for defendants, Lynch, McDonald and Stillman.

Before Kerferd, J.

DAVISON V. ORR.

25th June.

County Court Statute, 1869 (No. 345), Sec. 42-A defendant cannot apply to have the action remitted to the County Court under Sec. 42 after he has entered an appearance.

Application on behalf of the defendant under sec. 42 of "The County Court Statute, 1869,❞ to remit the action.

Mr. Benjamin in support.

Mr. McKean to oppose. The application is made too late. It must be made within 8 days from the service of the writ. In this case the writ was served on the 14th June, appearance was entered on the 16th June, and this summons was taken out and served on the 21st June; returnable on the 25th June. The defendant has by entering an appearance waived the question of jurisdiction.

Mr. Benjamin :-The summons was taken out within 8 days provided by the section, and the entering of an appearance cannot deprive the defendant of the right which is given him by the Statute to take out the summons within the 8 days.

HIS HONOR Said:-I think the defendant by enter ing an appearance has waived the question of jurisdiction. I dismiss the summons with £2 25. costs.

Solicitors for plaintiff, McKean and Leonard; for defendant, Hart and Benjamin.

27th June.

Before Kerferd, J.

WATERHOUSE V. HANSLOW.

County Court Statute, 1869 (No. 345), Sec. 42.-Such actions only as might have been commenced in the County Court can be remitted to that Court under Sec. 42.

Application on behalf of the defendant, under sec. 42 of "The County Court Statute, 1869."

The action was for breach of an agreement to employ the plaintiff in England, and for work and labor done in that place.

Mr. Grave to oppose.

The cause of action arose out of the jurisdiction, and therefore the County Court would not have jurisdiction to hear it. Only such action can be remitted as could have been commenced in the County Court.

Mr. Pirani in support. No doubt this action could not have been commenced in the County Court, but the Supreme Court can remit any action to the County Court.

HIS HONOR said :-Sec. 42 provides that actions may be remitted to "The County Court or one of the County Courts IN WHICH THE ACTION 'MIGHT HAVE BEEN COMMENCED." To give any meaning to these words the action must be such as might have been commenced in the County Court. I make no order, and I shall give no costs.

Solicitor for plaintiff, Grave; for defendant, Braham

and Pirani.

Company v. Black 24 W.R. 783 and which is followed in Anstey v. N. & S. Woolwich Subway Coy. it was decided that it was only necessary to specify the particular answers objected to.

HIS HONOR.-It would seem that the case of Anstey v. N. & S. Woolwich Subway Coy. is reported incorrectly in the Weekly Reporter. I think it is only necessary to specify the particular answers objected to which has been done in this case. I disallow the objection.

Solicitors for plaintiff, McKean & Leonard; for defendant, Lynch McDonald and Stiliman.

Before A'Beckett J.

CROUGH V. CLEARY.

29th June.

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.

The matter came before the Judge on reference The action had been instituted from the Chief Clerk. by the mortgagor against the mortgagee for the reThe ordinary demption of the mortgaged premises. redemption decree has been made, and the proceedings referred to the Chief Clerk. It appeared that the mortgagee has been in possession, and had expended various sums in improvements. In taking the accounts the Chief Clerk had allowed interest on these sums at the rate specified in the mortgage deed as payable on the sum secured viz: 15 per cent. To this ruling the mortgagor objected.

Mr. Gill, for the mortgagor, contended that the interest should not be computed at the rate specified in the mortgage. Quarrel v. Beckford 1 Maddock p. 281. Watson's Compendium of Equity p. 673, Seton

In an application for an order that the party interrogated shall file a further answer to interrogatories exhibited to him the summons must specify the particular answers objected to, but need not specify the particulars of the objections to such answers. Application on behalf of the defendant under Order XXXI. r. 11 for an order that the plaintiff make and file further and better answers to the interrogatories of the defendant numbered 2, 3, 8, 9 and 10.

Mr. Shiels to oppose objected that the summons was bad inasmuch as it did not specify the particulars of the objections to the answers already filed. Anstey v. North and South Woolwich Subway Co. 27 W.R

575.

Mr. Kilpatrick in support. The summons specifies the particular answers objected to, and that is all that is necessary. The case cited is evidently incorrectly reported for the case as reported in XI Ch D. 439 only decides that the summons ought to specify the interrogatories or parts of interrogatories to which a further answer is required. In Chesterfield Colliery

4th Ed. p. 1111 were also referred to. Interest should be computed at the rate specified in the Judicature Act.

Mr. Goldsmith, for the mortgagee, contending that if the sums advanced were just allowances they stood on the same footing as if they had been advanced in pursuance of a covenant for further advances. Eyre v. Hughes 2 Ch. D. p.p. 148, 164. In any event the interest should be computed at the rate obtaining before the Judicature Act, as the sums were advanced before that Act came into operation.

HIS HONOR said. The case cited by Mr. Gill decides that the rate of interest fixed by the mortgage is not necessarily the rate to be charged. I agree with Mr. Goldsmith's proposition that the sums advanced for improvements are to be taken as part of the sum to which the security extends. The mortgage is partly a security for those advances, but I do not think that it follows that they should bear the same rate of interest as those to which there is a special covenant. The rate of interest fixed by the mortgage is an exorbitant one, and I do not think it is a proper rate to be

execut

HIS HONOR, in delivering his reserved judgment, said: In this case the intending testator meant to make his will by using a printed form of one page which after the formal commencement leaves a blank space for the operative dispositions of the will, and at the bottom of the blank space the form of will is continued by the printed words, "And I hereby appoint In witness whereof I have hereunto set my hand this day of Then follows the attestation clause, and abundant space is left for the signatures of the testator and witnesses. The deceased filled up the formal heading, filled up part but not all of the blank space by dispositions of his property, and filled up the portion of the form relating to the appointment of executors, but instead of signing at the end of the will, he signed above the appointment of executors in the blank space following the disposing clauses. Application is now made by one of the persons named in these disposing 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 authorities I think that the application cannot be granted, that the signature is altogether inoperative, and that the so-called will is not a valid testamentary paper. See Margary and Layard v. Robinson, L.R. 12, Probate Division, p. 8. In that case the intending testator had put his mark in the middle of a paper meant for his will, and there, as here, the parties interested sought to support the document as a will, so far as it was written above the mark if the mark could not be treated as sufficient signature to the whole document. In refusing to grant administration, Sir James Hannen points out that the words of the section, which give a liberal interpretation to the words "foot or end" of the will, leave it still necessary that the will shall be signed at the foot or end, and that a signature in the middle of an incompleted

OF

,

By

document cannot be comprehended in any interpretation allowed by the amending section. The courts have always done what they could to regard the signature as at the end of the document, where its position could in any sense be assigned to the end, but this cannot be done where, as here, the end of the will had manifestly not been reached. It is not enough to say that a signed portion would be efficacious if standing alone, and therefore that the will can be considered as ending before the signature. An attempt to induce the court to deal thus with a will not signed at the end was made in the case of Sweetland v. Sweetland, 4 Swabey and Tristram, p. 6, in which a formal will was written on six sheets. The first five contained the essential beneficial dispositions; the sixth, trustees clauses and formal matter. accident the sixth sheet was left unsigned, all the others being signed by the deceased, and attested. The court refused to grant probate of the five sheets as containing the will, and pronounced for an intestacy. The words of the judgment, which were repeated with approval in Margary v. Robinson, are equally applicable to the present case. "The court would not be justified in fixing upon a signature in the midst of what the testator intended as his will and treating it as an execution of all that preceded it, and granting probate of so much of the will, to the disregard of the remainder. This in many cases might produce a testamentary result far from the testator's wishes; and though in this case it is said that no disposition of property is rejected the principle is the same. No case cited in the argument has gone this length, and it does not I think become the court, in a laudable anxiety to give effect to the document, to twist or distort the plain meaning of the statute by ingenious construction, and virtually break the law to mend the testator's blunder." My refusal of the present application is, I think, not in accord with the course taken in the will of Thomas Holley, 9 Vict. L.R., p. 52, but is reconcilable with the decision in the will of W. White, 12 Vict. L.R. 293.

Proctors for applicant, Casey and O'Halloran.

Construction of Will-Left to children at twenty-one

class ascertained upon eldest attaining twenty-one. Originating summons to obtain the decision of the Conrt as to the construction of a part of the will of Joseph Sutherland deceased.

Mr. Bayles appeared for the plaintiff. Mr. Higgins for the defendant.

HIS HONOR said, in delivering his reserved judgment.-The Trustees Executors and Agency Company Limited are Trustees of a sum of £5000 which was bequeathed by will upon trusts declared as follows:"To invest, and to stand possessed of the same in trust for the child if only one, or all the children if

more than one, of Donald Munro, who, either before or after my death shall have attained or shall attain the age of 21 years, and if more than one equally, with power for my said trustees to apply the whole or part of the annual income of the share of each child, while such share shall be contingent for his or her maintenance and education, accumulating the unapplied income by investing the same and disposing of the accumulations as part of the same share; and also in 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 for his or her advancement in life, or otherwise for his or her benefit." Donald Munro had six children all

living at the death of the testator, and all now of age. They have asked to have the fund divided between them, and the company are unwilling to divide unless directed by the Court having regard to the possibility of Donald Munro having another child or children born to him, who might claim to share in the fund. The children now living insist that no after-born child could acquire an interest in the fund. If the trust had not contained any power of advancement there is no doubt that this contention would be correct, and that the general rule would apply, which in the case of an immediate gift to the children of it on their attaining twenty-one allows the fund to be distributed amongst the children living at the time when the first child attains a vested interest, not keeping the fund undistributed during the whole life of it in the interest of other children who might subsequently come into existence. This rule of convenience, as it is called, is a rule of construction, and yields to any clearly expressed intention that the fund shall be kept in hand for after-born children. In the case of Iredell v. Iredell 25 Bevan, 485, a power to advance half of shares, whether vested or contingent, and to allow maintenance out of vested as well as contingent shares was with other peculiarities considered sufficient indication of such intention. But the strongest case against the right to immediate distribution is that of Bateman v. Gray, 6 Equity, 215. In that there was a power of advancement out of vested shares as here, and no power of maintenance out of vested shares as here, and the power of advancement out of vested shares was held to exclude the general rule. Strong observations of disapproval of that case are to be found in the later case of Gimblett v. Purton, 12 Equity, p. 427; but they do not induce me to disregard Bateman v. Gray, as an authority. There was, however, a scheme of disposition by the will in Bateman v. Gray, materially different from that of the £5,000 in the present case. The fund there was subject to annuities, which might have indefinitely delayed its distribution, and I think the present case is distinguishable on that and on other grounds afforded by comparing the two wills. Here the power of advancement may have been intended to enable the trustees to break off a portion of the £5,000 before the whole fund became distributable by each child entitled having attained 21. Whether this be the meaning or not, I do not think the clause sufficient evidence of an intention that the fund shall be kept in hand to

meet the contingency of other children being born. I declare that no after born child of Donald Munro would be entitled to a share in the fund, and order distribution subject to payment thereout of the taxed costs of the company and of the defendants to the originating summons, the company's costs to be taxed as between solicitor and client.

Solicitors for plaintiff, Malleson, England and Stewart; for defendant Blake and Riggall.

66

Before a'Beckett J.

20th & 28th June.

DILNOT V. HINKLEY.

Will-Construction-Real Property Statute 1864. s. 150-Locke King's Act-Devise of mortgaged lands after the payment of my just debts"— Words importing contingency-"Should my daughter also die""Should either of them die"-The words " after the payment of my just debts" preceding distribution of real estate are not sufficient to show a contrary or other intention so as to exonerate the real estate from the payment of a mortgage existing over it at the time of the death of the testator-The words importing contingency referred to the time of the death of testator.

The action was brought by George Dilnot, trustee of the property of Bessie Kook, an insolvent, and by Adelina Kook, a minor, (by her next friend), to obtain the decision of the Court as to the construction to be placed on the will of John August Kook, deceased.

Mr. Topp for the plaintiffs, referred to Brown v. Abbott, 7 V.L.R. (E.) 121; Ratten v. Denbigh, 13 V.L.R. 456, and the cases there cited, Jarman on Wills, p.p. 752, 756.

Mr. Cussen for the defendants, referred to Pembroke v. Friend, 1 J and H. 132; Woolstencroft v. Woolstencroft, 2 D.F. and J. 347; Brownson v. Lawrence, L.R. 6 Eq. 1; Isaacs v. Moss, 13 V.L.R. 85; Jarman on Wills, p. 753.

HIS HONOR in delivering his reserved judgment said:-This case involves two questions of construction, arising on a will which, so far as material, is set out in paragraph 1 of the statement of claim as follows:"After the payment of all my just debts, funeral and other expenses, I give, devise, and bequeath unto my wife and only daughter Adelina, one-third of all my real estate, to be held by my wife until she marries or dies, then the property to become my daughter's; and should my daughter also die, the property to revert to my three sons in equal shares. All the remainder of my real and personal estate to be equally divided between my three sons, and should either of them die his share falls to the survivors." The first point is as to whether the words "after payment of all my just debts" have the effect of exonerating the real estate from a mortgage existing over it at the time of the testator's death, and whether having regard to the general scheme of disposition, any contrary intention sufficient to exclude the operation of section 150 of the Real Property Statute, is indicated by the will. Brown v. Abbott, 10