is settled or given or agreed to be settled or given the instru-
ment whereby such settlement or gift is made or agreed to be
made is to be charged with ad valorem duty in respect of such
money and in the case of a marketable security is to be charged
with the ad valorem duty on the value of such security." There-
fore, in the case of money settled, it is quite plain that the
instrument itself is the thing taxed, and that the money settled
is the basis upon which is to be calculated the amount of the tax.
That being so, there seems to be no reason why the Legislature
should have intended to make any difference between money and
other things. We think the history of the Acts, their language,
the analogy of sec. 25, and the whole of the authorities on
the matter support this view. The case of Wiseman v. Col-
lector of Imposts may be set aside, because it relates to a
thing which could not be a settlement in any view.
case of Moffat v. Collector of Imposts the Court, as soon as
it became aware that the balance of the money was the subject
of the settlement, held that the whole thing was liable to
taxation. Although this view works hardship in this case, the
language of the Act is so plain and distinct that the Court ought
to give effect to it. The parties having entered into a settlement
amongst themselves, the tax attaches. The moral appears to be
-beware of settlements. The answer we make to the questions
is that the instrument is a deed of settlement within the meaning
of the Schedule Division VIII. of the property mentioned
therein, and is chargeable with the amount of duty assessed
by the Collector. The assessment will be confirmed, with
costs against the appellant.

In the

Assessment confirmed.

Solicitors for the appellants: Blake & Riggall.

Solicitor for the Collector of Imposts: Guinness, Crown

F.C.

1898

SPENSLEY

V.

COLLECTOR

OF

IMPOSTS.

Madden, C.J.

Solicitor.

R. H. C.

1898 May 17.

Madden, C.J.

[PRACTICE COURT.]

THE QUEEN (EX RELATIONE DAVID BURKE) v. PATRICK O'DAY. Local Government Acts 1890 (No. 1112), ss. 49, 257; 1891 (No. 1243), 8. 15— Municipal councillor—Qualification—“ Liable to be rated.”

An owner of rateable property which is in the occupation of a tenant is not a person liable to be rated in respect of the property within the meaning of sec. 15 of the Local Government Act 1891.

Re Joseph Pethybridge (A.R. 5th April 1869) followed.

ORDER nisi under sec. 166 of the Local Government Act 1890, calling upon Patrick O'Day, a councillor of the shire of Bungaree, to show cause why an order should not be made. ousting him from the office of councillor, upon the ground that at the dates of his nomination and election he was not and has not since been possessed of the requisite qualification entitling him to be nominated for or of being elected as a councillor of the shire, or of holding the office of councillor, inasmuch as he was not and is not a person liable to be rated in respect of property within the shire of Bungaree of the rateable value of 201. at the least.

O'Day was the owner in fee simple of land within the shire of Bungaree, on which was erected a hotel. The hotel and land were leased to a tenant at a weekly rent of 21. 10s., and were assessed in the books of the shire at the annual value of 481., upon which sum the tenant was rated and paid the rates. O'Day did not occupy any land within the shire.

Wasley to move the order absolute.

Topp to show cause-Sec. 15 of Act No. 1243 should be interpreted liberally. Both the owner and the occupier of rateable property are persons liable to be rated. The rates are a charge on the land. The Act does not say a person rated, but a person liable to be rated. Although the occupier is the person liable primarily, the ownership of the property is to be considered as an element of liability, because the section uses the words "no person shall cease to be qualified by reason of ceasing to hold the particular property." The owner of property has to pay the rates if the occupier make default.

[MADDEN, C.J., referred to Reg. v. Lunny (a).]

Scarlett, exparte

The occupier is not liable to be but is rated. [MADDEN, C.J. Under sec. 246 of the Principal Act all land is to be rated. The rate is to be established in respect of the land, and is payable in the first place by the occupier, and if there be no occupier by the owner.]

There may be two or more persons liable to be rated at the same time in respect of the same property. The latter part of sec. 15 of Act 1243 cannot refer to the occupier at all. The holding of property must certainly point to the owner. "Hold" is equivalent to "own." The words are general.

Counsel referred to sec. 257 of the Local Government Act

1890.

Wasley in reply-When there is a tenant in occupation of property the owner is not liable to be rated. The question whether a person is liable to be rated depends upon the facts of the particular case. If there is no tenant in occupation the owner is the person liable to be rated and qualified to hold office as councillor. If both owner and occupier were liable to be rated, both would have to pay the rates. At none of the times material to this case was O'Day liable to be rated: Re Joseph Pethybridge (b).

MADDEN, C.J. I think this order must be made absolute. O'Day, it is true, is the owner of property within the shire of Bungaree sufficient to qualify him, but this property is in the occupation of a tenant. The Act intends that there shall be only one person at a time liable to be rated in respect of any one property, and this is so not only for the purpose of recovering the rate but also for the purpose of determining what persons shall take part in the government of the municipality. Where there

is an occupier he is the person liable to be rated. He is the
person primarily liable to be called upon to pay the rates. If
Mr. Topp's contention be correct, both owner and occupier would
be liable to pay the rates. I think it is quite clear that the
(a) [1885] 11 V.L.R. (L.) 299.
(b) A.R. 5th April 1869.

1898

THE QUEEN

V.

O'DAY.

Madden, C.J.

1898

occupier, if there is one, is the person liable to be rated, and so THE QUEEN long as he is in occupation the owner is not liable to be rated,

V.

O'DAY.

Madden, C.J.

although, should the occupier quit the premises without paying
the rates, the owner would become liable for them. The case of
Re Joseph Pethybridge (c) is a distinct authority for the proposi-
tion that when there is an occupier of premises the owner is
not liable to be rated in respect of them. The order will be
absolute, with costs.
Order absolute.

Solicitors for the relator: Ford & Aspinwall (for Cuthbert,
Morrow & Must, Ballarat).

Solicitors for the defendant: Dugdale & Creber (for Tuthill, Ballarat).

R. H. C.

1898 May 2.

Madden, C.J.

[IN CHAMBERS.]

FOLLETTI v. FOLLETTI AND ANOTHER.

Practice-Order in Chambers-Originating summons-Loss of order.

Where the order of a Judge at Chambers has been lost, the same Judge may, upon proof of the loss and of the terms of the original order, allow an order to be drawn up identical in terms with the lost order, but may also at the same time require an order to be drawn up reciting the loss of the original order, that the loss and the terms of the order have been satisfactorily proved, and that a similar order has been allowed.

APPLICATION exparte that the signature of the Judge should be appended to an order in the place of one which had been lost. The proceedings had been commenced by originating summons asking for the removal of the trustee in the estate of one Pietro Folletti deceased, and for the appointment of a new trustee in his place.

By consent an order was made by Madden, C.J., in 1896, upon this summons, removing the trustee and directing the usual inquiries as to new trustees. After it had been signed it

was discovered that its form was wrong, inasmuch as by it the Chief Clerk was directed "to appoint" new trustees.

In July 1897 the same Judge, by consent of parties, made a supplemental order appointing two new trustees, and vesting the trust estate in them. This order was lost. Application was now made exparte to Madden, C.J., by the plaintiff, that a new

(c) A.R. 5th April 1869.

order in similar terms should be signed. Evidence as to the terms of the order and its loss was given.

Meagher for the applicant-From the affidavits the contents

1898

FOLLETTI

V.

FOLLETTI.

of the original order may be sufficiently gathered. Its loss also Madden, C.J. is clearly shown. A similar order to the one now asked for was made in Douglas v. Yallop (a); Evans v. Thomas (b); Dayrell v. Bridge (c).

MADDEN, C.J. You may take out another order. The authorities referred to relate to documents of greater importance than the one the subject of this application, and show that the order asked may be granted. The proper course will be for two orders to be drawn up. One order will be dated as of to-day, and will recite the loss of the order, that the loss and the terms of the order have been proved to my satisfaction, and that I have allowed a similar order to be drawn up. The other order will be identical in its terms with the lost order. The two orders, when read together, will show exactly what has happened.

Solicitors for the plaintiff: Lyons & Turner (for Grenfell, Daylesford).

R. H. C.

[DIVORCE AND MATRIMONIAL CAUSES JURISDICTION.]

[IN CHAMBERS.]

KEANE v. KEANE.

Practice Divorce-Service of citation-Mode of proof—Jurisdiction-Marriage

Act 1890 (No. 1166), sec. 113.

There is no jurisdiction in Chambers to make an order that the petitioner in a divorce suit be at liberty at the hearing to prove service of the petition and citation by affidavit.

APPLICATION by the petitioner in a divorce suit for an order that he be allowed at the hearing to prove by affidavit service of the petition and citation upon the respondent.

Bryant for the applicant-I can find no rule and no section. of the Marriage Act 1890 dealing with this matter, but the (a) [1759] 2 Burr. 722.

(b) [1729] 2 Str. 833.

(c) [1747] 2 Str. 1263.

1898

June 14, 20.

Hood, J.