1898

KEANE

V.

KEANE.

Hood, J.

application is made under the practice: Constable v. Constable (a).

[HOOD, J. I do not see how I can interfere with the Judge at the trial.]

It is done where an order is made for substituted service. [HOOD, J. In that case a power is given by the Marriage Act.] In Ellam v. Ellam (b) the Court allowed proof of adultery to be given by affidavit, and in Exparte Hobson (c) the Court allowed proof of marriage and of cohabitation to be given by affidavit of the petitioner's solicitor. Sec. 113 of the Marriage Act allows a party to verify his case in whole or in part by his affidavit. If the Judge at the trial has power there can be no objection in principle to the making of the order now.

Cur, adv. vult.

In

HOOD, J. An application has been made for an order that the petitioner in a divorce suit be allowed to prove service of the petition and citation at the hearing by affidavit. my opinion there is no jurisdiction to make such an order in Chambers. In support of the application several cases have been cited, but none of them really touch the matter. They all were cases in which the Court which heard the suit granted or refused the application, or they were cases in which orders were made under what is virtually sec. 113 of our Marriage Act. This section, however, does not apply to this case, because, in the first place, it applies only to the proceedings before the Court at the hearing; secondly, it relates to the proof of their respective cases by the parties, and I doubt very much whether under the Act proof of service is part of the case; and, thirdly, that section requires the deponent who makes an affidavit to be present in Court for cross-examination. Any one of these reasons would be fatal to this application. I was informed that orders such as that now sought have previously been made by other Judges, but I have not been able to find any of them.

Application refused.

Solicitor for petitioner: Henry Westley.

(a) [1864] 1 W. W. & A'B. (J. E. & M.)

88.

(b) [1889] 61 L.T. 338.

(c) [1894] 70 L.T. 816.

R. H. C.

[IN CHAMBERS.]

WILKINSON v. CURRIE.

Practice-Supreme Court-Foreign procedure-Liquidated demand-Service in Western Australia - Costs--"Rules of Supreme Court 1884 "-Order LXV., r. 12-County Court Act 1890 (No. 1078), s. 64, Part V.

Where in an action for a liquidated demand claiming an amount under 50l. the writ is served in Western Australia, and on the defendant's neglect to appear leave to proceed is granted and judgment is entered for the amount claimed, costs upon the Supreme Court scale will not be allowed.

APPLICATION under Order LXV., r. 12 of the "Rules of the Supreme Court" for an order that the plaintiff's costs be taxed upon the Supreme Court scale.

The action was for 371. principal moneys and interest due under a contract. The writ was served in Western Australia.

No appearance to the writ was entered by the defendant. The plaintiff obtained an order for leave to proceed in the action and that the Prothonotary should ascertain the amount for which judgment was to be entered therein. He also obtained an order for taxation of his costs. The Prothonotary refused to tax the costs on the Supreme Court scale.

The managing clerk of the plaintiff's solicitors-In Harris v. Thomson (a) Judge Hamilton refused to have a plaint summons issued under sec. 64 of the County Court Act 1890 sealed for service out of the jurisdiction, in Western Australia, on the grounds-(1.) That an Order in Council had been made under sec. 138 of the County Court Act, directing that the provisions of Part V. of the Act should apply to Western Australia or that the certificates of judgments of County Courts in Victoria may be forwarded to Western Australia at the request of the judgment creditors. (2.) That the procedure prescribed by sec. 141 is inconsistent with sec. 64, which enacts that unless defendant within ten clear days after service give a written notice to the Registrar of his intention to defend, the plaintiff may enter fiual judgment without further proof of his claim. The County Court Judges refuse to act under sec. 141, because they hold that it conflicts with sec. 64.

1898 June 14.

Hood, J.

1898

WILKINSON

V.

CURRY.

Hood, J.

[HOOD, J. I am inclined to agree with the view that sec. 64 does not apply.]

There is no method for recovering our judgment under Part V. of the County Court Act.

[HOOD, J. You can get judgment in the ordinary way.]

The judges in the County Court have to fix the time within. which appearance is to be entered, but they decline to do so.

HOOD, J. In this case a writ has been issued in the Supreme Court for the recovery of 371. alleged to be due to the plaintiff under a contract. The writ was served out of the jurisdiction, in Western Australia. The defendant has not entered an appearance and judgment with costs has been signed by the plaintiff. Upon application being made by the plaintiff to the Prothonotary to tax the costs, the latter declined to tax them on the Supreme Court Scale, on the ground that the judgment recovered did not amount to 50l.

Application is now made to me under Order LXV., r. 12, for an order that the plaintiff be allowed his costs on the Supreme Court scale. I would be glad to accede to the application, because I think it is a bona fide one, but I am unable to do so without laying down a general principle applicable to other cases of a similar character. I cannot certify that the action is one properly brought in the Supreme Court, although it is said that a judgment in the County Court would not be obtainable. At present I am not satisfied that that proposition is correct, although I am inclined to think that the County Court Judge, in refusing to issue a summons under sec. 64 of the County Court Act 1890 for service out of the jurisdiction, is right. There appears to me, however, to be no reason why a summons should not be granted under sec. 4 of Act No. 959 (sec. 139 of the County Court Act 1890). There is nothing inconsistent in the two sections, 64 and 139, but if any inconsistency exists sec. 139, being the later enactment, would prevail. That being so, I am unable to certify. The application will be refused.

Application refused.

Solicitors for plaintiff: Gavan Duffy & King.

R. H. C.

[IN CHAMBERS.]

O'DAY v. REID AND COMPANY LIMITED.

Practice-Pleading-Embarrassment-Contract, verbal or written - Particulars"Rules of the Supreme Court 1884 "—Order XIX., r. 4—App. C., s. 5, 1.

A pleading in the form indicated by the rules is good even though in alleging a contract it fails to set forth whether the contract was verbal or written. Particulars of these facts will however be ordered to be given.

SUMMONS.

Application by a defendant that a certain paragraph of the statement of claim should be ordered to be struck out as embarrassing, or in the alternative that the plaintiff should be ordered to give particulars of and under the paragraph.

Paragraph 2, the paragraph complained of, ran thus :-" The plaintiff sold to the defendant and the defendant purchased from the plaintiff on or about the 4th of March 1898 one truck of prime wheat at or for the price of 4s. per bushel on the rails at Bungaree."

Paragraph 4.—“ The defendant took delivery of the said wheat, but has not paid the plaintiff the said price or any part thereof. Alternatively, the defendant wrongfully refused to take delivery of the said wheat from the plaintiff, whereby the plaintiff has suffered damage."

Upon delivery of the statement of claim the defendant applied for particulars of the contract, but the plaintiff refused to give them. The defendant then took out this summons.

Wasley for the defendant-Where a contract is alleged it must be stated whether it is written or verbal. Here a sale is alleged in paragraph 2-that is to say, a contract of sale.

Counsel referred to Cuttance v. Thompson (a); Coldwell v. Hehir (b).

Bryant for the plaintiff-The pleading is good. It is sufficient to allege a sale without setting out anything more. The form in Appendix C., sec. 5, No. 1, has been followed. The breach of contract is the refusal by the defendant to accept (a) [1888] 10 A.L.T. 40.

(b) [1889] 11 A.L.T. 57.

1898 June 15.

Madden, C.J.

1898

O'DAY

V.

REID

AND COMPANY
LIMITED.

Madden, C.J.

delivery of the wheat. R. 4 of Order XIX. provides that material facts only are to be set out. If an agreement is alleged and a document referred to then the opposite party is entitled to get inspection of the document: Order XXXI., r. 15. The pleading is not embarrassing.

Wasley in reply-Appendix C., sec. 5, No. 1, uses the words "by breach of contract;" here the words used are "sold to the defendant."

Counsel referred to Bullen & Leake's Precedents of Pleading (5th ed.), p. 317.

MADDEN, C.J. The principle enunciated by Hodges, J., in the case of Coldwell v. Hehir appears to me to be right from every point of view, because, as he puts it, where a contract is alleged it is a material fact to state whether it was verbal or in writing. If that is not done the result must be that it becomes necessary for a defendant to plead every defence applicable to every class of contract and therefore the defence becomes uselessly swollen in order that the plaintiff may be met at every point. I therefore think to abstain from stating whether an agreement is in writing or not is a breach of the rules. The pleading however in this case is good, because it follows the form prescribed in Appendix C., and it is not entirely clear to me how to apply the principle of the decision mentioned to this case, so as to show that the pleading is bad, inasmuch as the pleader has followed the form which the rule set forth.

I think therefore the proper course will be to allow the form of the pleading to stand and to require the plaintiff to give the particulars asked for. They are material, and it is embarrassing, for the reasons given, for the defendant to be without them.

I allow the summons, with 31. 38. costs.

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

Solicitor for defendant: W. S. Fergie.

R. H. C.