F.C. 1898 POLA บ. THE VICTORIAN RAILWAYS which will not repeal by implication sec. 16 of the Wrongs Act 1890. We think that such an interpretation is to be found in these words "all actions shall be commenced within six months after the act complained of was committed." It appears to us that these words may refer to two different classes COMMISSIONER. of events-viz., first of all to the mere injury of the person himMadden, C.J. self, this being the act in respect of which he himself could complain at once. If, however, he brings no action and he dies, then his personal representative becomes entitled to bring an action in respect of the same thing, but only if the injury be followed by the death of the person injured. This appears to us to be a reasonable interpretation of the Acts, and although it does in effect strain to some extent the ordinary and usual meaning of the language used by the Legislature, it leaves the Wrongs Act intact and gives effect to sec. 119 of the Railways Act. So that if an injured man lingered for six months and then died his representatives would only be left six months from that time instead of twelve within which to give a notice of action. The reading of the Acts is a very different one indeed from the interpretation contended for by Mr. Cussen, that the Wrongs Act was repealed as to the six months, so as to deprive entirely of all right of action the personal representative of an injured man who lingered for six months without giving notice of action. For these reasons we think this rule nisi should be discharged with costs. Solicitors for plaintiff: Maloney & Stuart (for Grano, Ararat). Solicitors for defendant: Guinness, Crown Solicitor. R. H. C. [PROBATE JURISDICTION.] IN THE ESTATE OF KENNEDY. Administration and Probate Act 1890 (No. 1060), s. 17—Administration-Surety— The Court may in the exercise of its discretion refuse to order the assignment of an administration bond where the object of the applicant in seeking the assignment is merely for the purpose of heaping up costs. APPEAL from a judgment of A'Beckett, J., refusing to order the assignment of an administration bond. On the 4th August 1882 Johanna Kennedy obtained letters of administration to the estate of her late husband, John Kennedy. The estate consisted of 112 acres of land situate near Ballan, and was sworn not to exceed in value the sum of 252l. John Kennedy (now deceased) and Thomas Kennedy, the sons of the intestate, became sureties for the due admininstration of the estate. The intestate left seven children, including Andrew Kennedy, the applicant. Johanna Kennedy sold the land at Ballan in 1884 for 566l. 178. This sum it was alleged she used for her own purposes, and did not distribute among the parties entitled thereto. On 14th July 1895 Johanna Kennedy died. By her will, dated the 22nd October 1892, she devised her estate, which consisted of 133 acres of land at Ballan, valued at 1997. 108., to Thomas Kennedy and Margaret Egan, two of her children by the intestate John Kennedy, to whom the executors of the will of Johanna Kennedy, Thomas Lloyd and Thomas Moylan, afterwards conveyed it. On 30th June 1896, Andrew Kennedy obtained a grant of letters of administration de bonis. non to the estate of his father, John Kennedy. It was alleged by Andrew Kennedy that prior to his father's death the latter owed. him 1207., and had promised to provide by will for payment of this amount. Andrew Kennedy also stated that he had, shortly after his father's death, seen a letter in which mention was made of a will. He said that he believed that the 133 acres at Ballan formed part of his father's estate, and that his mother was receiving the rents from it. He also stated that he did not hear of the sale of the 112 acres at Ballan until 1887. In 1890 he wrote his mother asking a settlement of the debt owing 1898 February 24. A'Beckett, J. 1898 by his late father, and for his interest in the estate, but received IN THE ESTATE no reply. In 1895 Andrew Kennedy consulted his present OF KENNEDY. A'Beckett, J. solicitors with reference to the alleged will, and certain inquiries were made by them about it, with no result. John Kennedy, one of the sureties, died on the 6th September 1896, intestate, and letters of administration of his estate were granted on 31st October 1896 to his widow, Margaret Kennedy. Andrew Kennedy now sought to obtain an assignment of the bond given by Thomas Kennedy and Margaret Kennedy. After the institution of the proceedings, Thomas Kennedy, without admitting liability, offered to pay out of his own moneys the sum of 241. to the applicant in settlement of the matter, stating that the amount of the bond was 2521., that the mother's third amounted to 84l., leaving 1681. to be divided into seven parts of 24l. each. All the other persons interested in the estate of John Kennedy had, after the proceedings commenced, executed an instrument releasing Thomas Kennedy from all claims under the administration bond. The motion came on for hearing before A'Beckett, J., on the 24th February 1898. Irvine to move. Dr. McInerney for Thomas Kennedy to oppose. A. Skinner for Margaret Kennedy to oppose. A'BECKETT, J. I think I have abundant material upon which I may exercise my discretion so as to refuse the application. No mere delay may debar the applicant; but if he is a party to an arrangement under which he and others refrain from exercising their rights, he is debarred. I believe there was an understanding that the mother should receive this money. The transaction occurred years ago, and this man has known for years what was being done, but he only now takes action. I think there was such a family understanding (although not put into so many words in a deed or anything of that character), to which this man was a party, and that he perfectly understood it all. That is one element to guide me. Another is that the solicitors acting for him have made no 1898 OF KENNEDY. answer to a reasonable proposition, but have made a demand for costs to which they were not entitled. He took out IN THE ESTATE an administration which could serve no purpose. There was a reasonable offer made and refused, and a preposterous demand made for costs. Another reason which gives substance to my view-there has also been an intention on his part to set up a willthat the very administration he now seeks to take advantage of, and the liabilities under it, should never have been granted at all; and if that is the case, the will of his father ought to be proved. This is a bar against him; it shows the position he had taken up, that he has a perverted view of what his rights are, and his condition of mind is such as to make the Court doubtful about entrusting him with the bond. I recognize the principle that the Court cannot do as it pleases, but as a Court of Equity would allow; but I think these reasons are sufficient, and that I am saving this person this deluded person-from further costs by refusing the application. From this judgment the applicant appealed. Irvine for the appellant-It is not the hardship or the unfairness of the claim which is made that affords an answer to the application. The answer must be a legal answer. In the case of In re Steele (a) the applicant had no means. That is not so here. It is not suggested that we are unable to pay the costs. In In re Dean (b), referred to by A'Beckett, J., in Steele's Case, it was held that the mere fact that an account was not filed will not give the right. [WILLIAMS, J. The main question there was that if the applicant proceeded the action would have failed.] A Judge ought not to entertain or consider the question of evidence. He should not make up his mind as to the party who would win. [MADDEN, C.J. A'Beckett, J., in In re Steele took another equitable view. There was, in that case, an equitable arrange(a) [1897] 23 V.L.R. 146. (b) [1885] 11 V.L.R. 764. A'Beckett, J. F.C. 1898 June 21. F.C. 1898 IN THE ESTATE OF KENNEDY. ment between the parties beneficially interested to allow the mother to take the property, and not to interfere. HOOD, J. How does the applicant explain the long delay ?] He thought his father had made a will. This question was not considered in the Court below. [WILLIAMS, J. As I understand your contention, it is that the agreement is in issue in the action, and therefore the Judge who hears the motion to assign has no right to go into the matter unless the facts are admitted, otherwise he determines the issue to be tried in the action.] That point was settled in In re Gleeson (c). A good primâ facie case is sufficient. Here there is an absolute breach of trust going to the whole estate. [WILLIAMS, J. The learned Judge below evidently thought the action was only for the purpose of costs.] We have a distinct legal right created for the purpose where an administration suit will fail. The discretion of the learned Judge is distinctly limited by the authorities. [MADDEN, C.J. If the appellant took the £24 offered, would the Judge have a discretion ?] A. Skinner for the respondent Margaret Kennedy, and Dr. McInerney for the respondent Thomas Kennedy, were not called upon. MADDEN, C.J., delivered the judgment of the Court [MADDEN, C.J., WILLIAMS and HOOD, JJ.] We think that in this case the view taken by A'Beckett, J., in the Court below was certainly not a wrong one. As has been suggested, a bond of this kind is of such a nature that when a Judge is asked to assign it he has some measure of discretion which he may exercise. The right to have the bond assigned is not absolute in the person who applies. In the case of In re Steele certain exceptional circumstances existed which warranted the Judge in his refusal to assign, but in that case the principle was laid down that a Judge is not to refuse assignment merely out of a feeling of sympathy with the bondsmen or upon the gronnd that an action upon the (c) [1887] 13 V.L. R. 565. |