the defendant to set aside an order of mine for a commission to examine witnesses in New Zealand so far as it relates to the evidence of John Copland on the ground that the defendant was induced not to oppose the making of the order by false statements and representations as to the age and state of health of John Copland. The order in question was made on the 29th of May, of this year, and is drawn up as made on the application of the plaintiff and upon hearing counsel for the applicant and the solicitor for the defendant and upon reading the joint affidavit of Henry Hoyt and William Brown, and by consent. As the application for the order was not opposed I did not consider whether the case was one in which a commission could be demanded as of right. The affidavit referred to contained the following statements by Mr. Hoyt, one of the directors of the company, on whose behalf the action is brought :-I know John Copland, of Lawrence, in the Province of Otago. The said John Copland is over 70 years of age, and is of infirm health. The application with which I have now to deal is supported by the affidavit of Mr. Tomlins, the clerk having management of the action on behalf of the defendant. This affidavit refers to another action instituted by the same plaintiff to perpetuate the testimony of John Copland, in which his age is stated to be over 70. Mr. Tomlins says that, relying on the statements contained in the affidavit of Mr. Hoyt and in the writ and statement of claim in this other action, he believed that John Copland was over 70 and infirm, and unable to be brought over here to give his evidence; that no one on behalf of the defendant knew anything of Copland's age or state of health, and that, being of opinion that the application could not be successfully opposed, he so stated to the Judge, merely suggesting that the order should be for a commission and not for a de bene esse examination, which was the form in which the application was made; and that when evidence was taken under the commission he was surprised to find that Copland, instead of being over 70 and in infirm health, was apparently in robust health and on his sworn testimony only 58. In answer to this affidavit Mr. Hoyt deposes that he first saw Copland in January, 1886, that he was then suffering from nervous prostration, and said that his health was much impaired, and that from Copland's personal appearance and conversation Mr. Hoyt formed the opinion that he (Copland) was fully 70, and that he was generally in a bad state of health, and that he made the statements in his affidavit in which the order for the commission was applied for believing them to be true. He further says that when he saw Copland in June last he appeared to have aged considerably. Mr. Akhurst, who Saw him in June, says he formed the opinion that he was 'seventy years or thereabouts.' Mr. Brown, plaintiff's solicitor, who saw him at the same time, says he would certainly have taken him to be 70, and described several indications of infirmity which he exhibited. untruth, but he cannot be acquitted of careless swearing in making a positive statement as to the age of the witness. He may not have known, but his solicitor must be taken to have known that this statement as to the age of the witness was all important as to the order he was seeking, inasmuch as when a witness is over 70 it is almost a matter of course to permit him to be examined de bene esse, see Bidder r. Bridges, 26 ch. D. 1. The solicitor prepared an affidavit, by which Mr. Hoyt swore positively and untruly to a statement, which made resistance to the application almost hopeless. The witness, as to whom the application was made, was expected to give, and has given, evidence vital to the case and of a character which would have entitled the other side to insist that he should be examined before the jury but for the supposed fact that he was over 70. The defendant was virtually deprived of the power to resist the application by the untrue statement in Mr. Hoyt's affidavit. I cannot accept the suggestion made in argument that the defendant ought not to have believed the affidavit, and has no right to complain of having been deceived. It was contended that, whatever the deception might have been, I was powerless to alter the order which I had made, by reason of section 28 of the Judicature Act. That section does not, as I read it, deprive a judge of the power to set aside or vary an order which he was tricked into making, or which was made on a consent fraudulently obtained. He may not hear an appeal from his own order, but he may alter his order on being informed of material facts suppressed or misstated when the order was obtained. On more than one occasion I have exercised the power which I considered I possessed of setting aside my own order improperly obtained, on this subject I have been referred to a passage in Archbold's Practice, 14th. Ed., pg. 1399, which accords with my view. If I have the power I think this is a case in which I ought to exercise it. It was contended for the plaintiff as a reason against disturbing the order for the commission, that apart from the supposed old age of the witness, it appeared from the affidavits, and from what the witness had himself said, under examination, that he could not be brought here, and, therefore, that the plaintiff had a right to have him examined on commission. Counsel for the plaintiff also offered to let the defendant obtain the attendance of Mr. Copland at the trial, the costs of doing so to be costs in the action, and if Mr. Copland were present at the trial to call him as a witness and not to use his evidence under the commission. It does not appear that the plaintiff is unable to obtain Mr. Copland's attendance, and therefore I need not consider now what should be done should it hereafter appear that Mr. Copland could not be induced to come. No definite proposal seems to have been made to him. I have no doubt he would object to come without substantial inducement, The property at stake is sworn to be worth £100,000, and the plaintiff has apparently ample resources. Accord Upon these affidavits I acquit Mr. Hoyt of wilfuling to the affidavits filed on behalf of the plaintiff, and the evidence of Mr. Copland, the interruption to his practice as a solicitor in Lawrence, a country town in Otago, is a cause, if not the principal cause, of his objection to attend at the trial. This is an objection which a liberal offer would get over, and liberality to this witness under the circumstances of the case, could not be considered as detracting from his credibility when he came here to give evidence. He might reasonably expect to be well paid for the various inconveniences to which he would be subjected by attending this Court as a witness and it is the duty of the plaintiff to obtain his attendance. With regard to the offer made by plaintiff's counsel to call him as a witness if the defendant brings him here, it is to be observed that the plaintiff is relying on Mr. Copland's acts, persons on whose behalf the plaintiff sues have been in friendly communication with him, and he would naturally and properly be desirous of assisting them so that an offer from them is far more likely to be favorably received than an offer from the defendant. If the order, which I now propose to make holds good, a further application on behalf of the plaintiff may have to be made which may be heard by another judge. I therefore wish to be explicit as to the grounds on which I am now proceeding. In the first place I entertain no doubt that the evidence of Mr. Copland is evidence which the defendant had a right to insist should be given before the jury if it could be so given. See Lawson v. Vacuum Brake Coy. 27, Ch D. 137; Berdan v. Greenwood 20, Ch D., 764. In the second place I think the defendant did not attempt to exercise this right by reason of the untrue statement as to the age of the witness in Mr. Hoyt's affidavit. In the third place I think that the affidavits before me, and the evidence of Mr. Copland, do not show that the plaintiff was unable to obtain his attendance as a witness. On these grounds I order that the evidence of Mr. Copland taken under the commission be not read on the trial of this action, unless further order be made giving leave to read it. I order the plaintiff to pay the costs of this summons, and I certify for counsel. Solicitors for plaintiff, Duffett and Brown; for defendant, Blake and Rigall. It appeared that the defendant, who resided more than 50 miles from the General Post Office, was served on the 13th July with the writ, which was endorsed under the "Instruments and Securities Statute 1864;" that judgment was signed on the 24th July for want of appearance, although the defendant had up till the 29th July to obtain leave to appear and defend the action; that execution issued on the judgment and the sheriff went into possession on the 30th July; and that present summons to set aside was not taken out until the 14th August. Mr. Weigall in support. Section 20 of "The Instruments and Securities Statute 1864" gives. the defendant 16 days within which to apply to a judge for leave to appear and defend the action. The plaintiff signed judgment before that time had elapsed, therefore the judgment is a nullity and should be set aside. Where a statutory power is given to a man he cannot be deprived of that power by the act of the other party. Mr. Mitchell to oppose. Signing a judgment at too early a date is an irregularity only and not a nullity. Where an irregular judgment is sought to be set aside the application must be made promptly. The defendant had notice of the judgment having been signed on the 30th July, but he took no steps to have the judg ment set aside until the 14th August. He has thereWeedon v. Garcia, fore made his application too late. 2 Dow. P.C. (N.S.) 64. HIS HONOR said: The case of Weedon v. Garcia decides that the signing judgment prematurely is only an irregularity and not a nullity, consequently the application to set aside should be made promptly. In the present case the defendant had undoubted notice of the judgment having been signed on the 30th July, but he has slept on his rights until the 14th August. I therefore think this application is not made within a reasonable time, and I dismiss it with costs and certify for counsel. Solicitors, for plaintiff, Budd; for defendant, Watson, Morgan, and Gill. Before Williams, J. Before Williams, J. 24th August. NICHOLSON V. EDWARDS. NEVILLE V. HANDLEY. 20th August. Instruments and Securities Statute 1864 (No. 204) sec. 20―Judgment signed prematurely-Irregularity -Signing judgment prematurely is an irregularity only and not a nullity, and therefore the application to set aside such judgment should be made promptly. Application on behalf of the defendant for an order that the judgment signed in this action on the 25th July and all subsequent proceedings herein be set aside for irregularity on the ground that such judgment had been prematurely signed before defendant's time for appearance had expired. Instruments and Securities Statute 1861 (No. 204) section 20--If the plaintiff sign judgment in an action without having served the defendant with the writ of summons, such judgment is irregular only, and an application to set it aside must be made promptly. Application on behalf of the defendant to set aside the writ of summons and service thereof, the judgment and all subsequent proceedings herein, on the ground that the defendant had not been served with the writ of summons. Mr. Farmer in support. It appears from the affi davit filed in support of this application that the defendant has never been served with the writ of summons. The writ was one under "The Instruments and Securities Statute 1864," it was served on somebody else, and the defendant had no knowledge of the action until the sheriff seized his goods on the 27th of July under an execution issued on the judgment. A writ of summons must be served personally unless leave is obtained for substituted service, Order IX. r. 2. As the writ has not been served the judgment is a nullity and should be set aside. It was contended on behalf of the plamtiff that the non-service of a writ of summons was an irregularity only, and that the defendant had waived his rights, inasmuch as he had not applied to have the proceedings set aside until the present time, although the judgment had come to his knowledge on the 27th July when his goods were seized. HIS HONOR said: In the first instance I certainly thought that any proceedings taken on a writ of summons which had not been served would be null and void, but in looking at Chitty's Archbold, 12th Ed. pg. 211, I find this passage, which is apparently supported by authority" If the plaintiff proceed in action, as if personal service had been effected without serving the defendant, the proceedings may be set aside. They will not, however, be null, but only irregular and, therefore, any application to set them aside must be made within the time limited for taking advantage of an irregularity." This passage shows that the proceedings taken in the present case are irregular only and not null, and, therefore, as the defendant has not applied within a reasonable time after the judgment came to his knowledge, I dismiss the application. Solicitors, for plaintiff, 4. M. Williams; for defend ant, J. Farmer. : 1st Sept., ISSS. davit filed in support of the application that Williams bought certain land from the Crown, which the ap plicants have recently bought from him. The transfer from Williams to the applicants was lodged but the Crown has lodged a caveat against the transfer of the land to any person. The applicants have taken out a summons returnable before the Full Court to have the caveat set aside and have requested Williams to make an affidavit in support of the application, which he has declined to do unless he is paid £5000. I would suggest that Your Honor should order a subpoena to issue to compel the attendance of Williams before the Full Court at the hearing of the application to set rside the caveat. Williams c. Shoolbred, W.N. 1880 pg. 192 HIS HONOR said. I think it would be much more simple to make an order that he should be examined before a commissioner in the ordinary way, such ex amination to take place in the presence of the parties their counsel, solicitors, or agents, and the witness to be subject to cross-examination and re examination as provided by r. 11, of order XXXVII and that the evidence taken before such commissioner should be used before the ball Court on the hearing of the application to set aside the caveat. Solicitors for the applicants Attenborough, Nuna, and Smith. PRACTICE COURT. 14th & 22nd August. Before Williams J. 27th August. EX PARTE GOLDSBROUGH & COMPANY. Before a Beckett J. BAILEY V. MAYOR &C. OF PORT MELBOURNE. Rules of Supreme Court 1884, Order XXXVII. cr., 5, 11 Where a person who was requested to make an affidarit to be used on the hearing of an application before the Full Court to remore a caveat refused to do so, an order was made directing his examination before a commission in the manner provided by Order XXXVII., ., 11. Application under order XXXVII r. 5 for an order directing a person named Williams to attend and be examined on the ground that he has refused to make an affidavit required of him. Mr. Hodges in support: It appears from the affi Order in Council 9th June, 1860- Appeal to the Privy Council 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 applicants, Motion on behalf of the defendants under the Order in Council 9th June 1860 for leave to appeal to the Privy Council. Mr. Hood in support. The question is whether there is a right to appeal at all. The amount in dispute is 264 but it is sworn in the affidavit that the matter involves matters amounting to £500. Bendigo Water Works v. Thunder 1 V.R. (1) 123, and Blackarood's case 2 VLR. (L) 94, show that Your Honor Mr. Isaacs to oppose. His Honor cannot go into the question of the injury to other property Morse v. Australian S.N. C ́y, supra. In this case the case of Ko Khine v. Snadden 5 M.P.C. (NS) 67 is mentioned which shows inferentially that the application could not be made under similar circumstances. Thunder's case is of no value because there was an uncontradicted affidavit which swore that the amount indirectly involved the necessary amount. This is brought out in Armstrong v. Curry 4 VLR (L) 178. He also cited Wakefield v. Parker 6, W.W. & a'B. (E) 322. Bank of New South Wales v. Ouston 4 App. Cas. 270. Gardiner v. McCulloch 2 VLR (1) 128. can regard the question that other cases will turn on plaintiff's. It was argued for the defendant that, if the decision in this case. Morse v. Australian S. N. | leave to appeal were not given, the council might be liable Co. Sup. Ct. Reps. N.S.W. R. 81, is the only case for any number of claims as to which the decision of against this contention. The Indian regulations with this Court would be absolutely conclusive and an apregard to appeal are totally different. peal to the Privy Council could not be brought in any of them unless the amount recovered exceeded £500. I think that the judgment deciding that the defendant could not legally alter the level of the streets, involves a claim. demand or question to or respecting property or civil right of the value of £500. I should say that in this case the "civil right" was involved but the language of the order is so wide that I do not say that the judgment could not be brought within the preceding words. It is of course obvious that as between the parties to this action the amount involved is below £500 it is necessary to contemplate some proceeding by another litigant or the deprivation of a right as against some other person than the present plaintiff in order to bring the case up to the appealable amount but this I think is permissible. If judgment in an action by A against B decides that A has not a right which he claims (not as against B only) but as against B and a number of other persons the value of the right for the purposes of appeal under the orders in Council is not its value as against B only but its value as against all the persons against whom it is claimed assuming it to be as in this case one right dependent on the same facts or the same title as to all persons against whom it is asserted. This view of the orders appear to me to be sanctioned by the judgment of this Court in Bendigo Water Works v. Thunder 1 V. R. (L) 123, by the observations thereon in Armstrong v.Culley 4 V. L. R. (L) 178 and particularly by the observations at page 188. It was argued before me that the decision. in the Bendigo Water Works case could not be relied upon because the Court there laid stress on the fact that the affidavit of value was uncontradicted but the absence of contradiction as to facts did not relieve the Court from considering the question of law involved particularly as the application for leave to appeal was opposed and the argument for the appellant reported in A. J. R. 123, shows the shape in which the point was presented. The court must have considered that it had a right to take into account liabilities to persons other than the particular complainant or it would not have given leave. None of the cases cited in opposition to the present application appear to me to be opposed to the construction which I put upon the Order-in-council. I will make an order on the usual terms giving the plaintiff the option of receiving damages and costs on giving security to refund to the satisfaction of the Prothonotary or having proceedings stayed pending the appeal. Costs to abide the result of the appeal. HIS HONOR said I will consider the matter. HIS HONOR on a subsequent day read the following judgment -The plaintiff sued for injury to his property caused by the defendant having altered the levels of Inglis & Evans Streets in the Borough of Port Melbourne. The defendant contended that it had the right to alter the levels but the Court decided that it had not, and judgment was therefore entered for the plaintiff with 264 damages. The defendant desires to appl to the Privy Council from the order of the Full Court affirming this judgment and an affidavit has been made by the Town Clerk to bring the case within the Orders in Council allowing an appeal where the sum or matter in issue is above £500 or the judgment involves directly or indirectly any claim demand or question to or respecting property or any civil right of the value of £500. His affidavit states that since the final judgment in the action the defend ant has been served with a writ by one Busch claiming damages for injuries to his property caused by the same alteration of levels as that which the plaintiff complained of, that other persons properties are affected by the same alteration and that the deponent believes that they will bring actions. I think this affidavit shows that the defendant is under liability in respect of the alterations of the levels exceeding £500. The sum for which Busch sues is not stated, but assuming it to be for only £200 which is the extent of the injury alleged in the plaintiff's answering affidavit the limit of £500 is nearly reached without taking into account the liability which is sworn to exist with reference to injuries to other property. The plaintiff states in his affidavit that the property of Busch is the only property besides his own affected by the alteration and that he has made inquiries from property holders adjoining and in the vicinity and they have informed him that they do not intend to make any claim in respect of the alteration. Such information would not bind the persons who gave it and the fact of inquiry having been made of them suggests that they had some apparent ground of action so that I attach more weight to the defendant's statement of the extent of its liability than to the Vendor and Purchaser-Conditions of Sale-Right Solicitors for plaintiff Eggleston & Derham; for defendants Emerson & Barrow. SITTINGS IN BANCO. July 26, 1888. to rescind without notice-Forfeiture of depositRescission. and it shall Appeal form order of Webb, J., on 20th April, 1888. contract for the sale of land. The defence was that the purchaser had not paid the balance of the purchase money within the time specified, and that the vendor acting under the eighth condition had thereupon 1st Sept., 1888. Mr. Box and Mr. Agg (for the plaintiff).-As to parties see Darts Vendors and Purchasers, 6th Ed 1127. The view which the judge took, though not argued, was correct. The words "duly paid" in condition eight mean paid within one month plus a reasonable time-Webb r. Hughes L.R. 10 Eq. 286. Forfeiture must precede rescission-The defendant if he had the right to rescind has waived it-Sugden's Vendors' and Purchasers, 14th Ed., p 266; Cutts v. Thodey, 13 Sim. 206. From the evidence it is clear that plaintiff asked more than once for the title. In a contract for the sale of land one of the conditions provided that "if the purchaser shall fail to comply with the above conditions or shall not pay the whole of the depositor shall not duly pay the balance of the purchase-money or either of them his deposit money or so much thereof as shall have been paid shall be actually forfeited to the vendor, who shall be at liberty, without notice, to rescind the contract and resell the property bought by the purchaser by public auction or private contract HIGINBOTHAM C.J. The judgment from which not be necessary previously to tender a transfer to this appeal is brought was given on the construction the purchaser." Held: -That as soon as the pur-placed by the learned judge on the eighth condition chaser failed to duly pay the balance of the purchase of the Conditions of Sale. By the first condition of money the deposit was actually, and in fact, forfeited, the contract it was provided that the purchaser should without any other act on the part of the rendor, and on the signing of the contract pay a deposit of £10 that the vendor had the right to rescind the contract in cash on his purchase and should pay the balance without giving any notice. of the purchase money in a month. By the second condition the purchaser was required to complete the entitled to possession from the date of his acceptance purchase in the time last aforesaid but he should be be completed at the time above specified the purchaser of title, and if from any cause his purchase should not should pay interest on the amount due at the rate of to per cent without prejudice however to the right of the vendor under the eighth condition. By the fifth condition it was provided that the certificate of title should be produced to and a copy thereof might be made by the purchaser or his solicitor on application to the Vendor and the purchaser should within 10 Vendor or his solicitor a statement in writing of of the sale deliver to the duys from the day all objections to or requisitions on the title “and in this respect time shall be of the essence of the con tract." The eighth condition provided that— "If the purchaser shall fail to comply with the above con ditions or shall not pay the whole of the deposit or shall not duly pay the balance of the purchase money or either of them his deposit money or so much thereof as shall have been paid shall be actually forfeited to the Vendor who shall be at liberty without notice to rescind the contract and resell the property bought by the purchaser by publicauction or private contract and the deficiency (if any) in price occasioned by the same shall immediately be made good by the defaulter at this present sale and in case of non-payment the amount or expenses shall be recoverable by the vendor as and for liquidated damages and it shall not be necessary to tender a transfer to the purchaser." rescinded the contract and sold the land to one Holmer, who it was pleaded should have been made a party. The plaintiff, in reply, said that he had applied for the title on several occasions, and that as the vendor was in default, in not producing it he was not entitled to insist on the payment of the balance or the completion of the contract within the specified time, nor was he entitled to rescind the contract or resell the property. WFBB, J., made an order for specific performance on the grounds that, as time was made the essence of the contract in some of the conditions, but had not been so made in the eighth condition the vendor was not entitled to rescind (even if the instructions to resell, which were the only evidence of rescission were sufficient evidence) without giving the purchaser a reasonable notice; and secondly, that forfeiture must precede rescission, and it was only after forfeiting that he might proceed without notice to rescind. From this order defendant appealed. Mr. Topp (for the defendant appellant.)-The learned judge decided on a point of law which was not raised by the pleading or at the bar The conditions say in express terms that rescission may be without notice and Parkin v. Thorold 16 Bear 59, and Sugden's Vendors and Purchasers 14th Ed. p 268 the authorities cited by him do not apply. The defendant was willing to hand over to the plaintiff the profit he made by the resale. Holmer is a necessary party, and the question should not be decided behind his back. In the view which the learned judge took of the law it was unnecessary for him to decide the question of fact really raised by the pleadings but it is submitted that there is no evidence that plaintiff even applied for the title. The learned judge construed this condition in this way. He said that as time was made of the essence of the contract in some of the conditions and was not made of the essence of the contract in the eighth con dition the vendor could not exercise his right of forfeiture on non-payment of the balance of the purchase money, that it would be the duty of the Vendor on non-payment of the balance to give to the purchaser reasonable notice of his intention to avail himself or the powers contained in that condition and on due expiration of that reasonable notice and only then was the vendor at liberty to rescind the contract and resell the property. We are of opinion that that is not the proper construction to be placed on the eighth condition. The condition provided that the deposit |