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AUSTRALIAN LAW TIMES

Edited by JAMES C. ANDERSON, Esq.,

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CHARLES F. MAXWELL, LAW PUBLISHER 81 CHANCERY LANE,
AND ELIZABETH STREET SYDNEY.

ADELAIDE: E. S. WIGG & SONS. LONDON: SWEET & MAXWELL, 8 BELL
YARD TEMPLE BAR.

MDCCCLXXXIX.

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In Re ELIZA JOHNSON; PHILLIPS (Caveator). Transfer of Land Statute 1866 (No. 301) sec. 117, Judicature Act 1883 (No. 761), Sec. 10 (7).-Removal of Careat-When the Full Court is not sitting a Judge in Chambers, if satisfied with the urgency of the matter, may have and determine an application to remove a Caveat.

Application on behalf of Eliza Johnson calling upon Thomas William Phillips the caveator to show cause why a caveat lodged by him should not be removed.

Mr. Shiels to oppose. This application cannot be made to a judge in chambers, it must be made by a summons obtained from a judge in chambers returnable before the Full Court. Exparte Vincent 8, A. L. T. 5, Exparte Goldsworthy 8, A. L. T. 181.

Before Higinbotham C. J.

22nd June.

DUDLEY V. BROWN AND BALFOUR.

Rules of Supreme Court, 1884, Order XVIII r 2Order XXI r 15-Order XXX r I-Ejectment— Counter claim, where, to an action of ejectment, the defendant set up a counter-claim for work and labor done, &c., such counter-claim was ordered to be excluded-Costs where application not made under a general summons for directions.

Application on behalf of the plaintiff calling upon the defendants to show cause why their counterclaim should not be struck out or excluded on the ground that it cannot be conveniently disposed of in this action. The pleadings in the action were as follows.

Mr. Higgins in support. No doubt an application to remove a caveat should be made by summons returnable before the Full Court when the Full Court is sitting but when the Full Court is not sitting it can be 1. made to a judge in chambers Exparte Peck 10 V. L. R. (L) 328; Exparte Davies and Inman 11 V. L. R. 780. The caveat has now lapsed as it is more than a month since the caveat was lodged.

2.

HIS HONOR said, All that Exparte Vincent and Exparte Goldsworthy can be taken to have decided is that the application to remove a caveat should be made by summons returnable before the Full Court; but when a judge in chambers is satisfied as to the urgent nature of the matter he may exercise the powers vested in him when the Full Court is not sitting. No urgency 3. has been shown in this case. I may say that I do not think the caveator has justified his action in lodging the caveat and the circumstance that the caveat has lapsed since the summons was returnable should not relieve him of the responsibility occasioned by lodging the caveat. Although I shall not make any order that

STATEMENT OF CLAIM.

The plaintiff is entitled to the possession of two houses of the plaintiff situated on certain allotments of land being allotments 1 and 21 of section 2 A parish of Maryborough and of the two said allotments.

The plaintiff put the defendants into possession of the said two allotments for the purpose of building the said two houses for the plaintiff under and in accordance with the terms of a certain written contract but although the defendants have built such houses and although the plaintiff is ready and willing to pay to the defendants such sum as may be due to them for building the same under and in accordance with the provisions of the said written contract the defendants have refused to deliver up possession of the same and threaten to remove the said houses bodily from the said allotments of land. At the time that the plaintiff so put the defendants into possession of the said land as aforesaid the title to the said land was in the Crown but prior to the commencement of this action the Crown granted the said allotments to the plaintiff in consideration of a certain sum of money which has been duly paid by the plaintiff to the crown and the plaintiff prior to the commencement of this action held and still holds the treasurer's receipt for the purchase

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