"said complaint, and dismissed the same for want of juris 1866. "diction." The complainants appealed, and the magistrate MAYOR, &c. OF stated this case. Fellows for the Appellants.-The demand is a condition precedent to the right to sue under sec. 205. Cullen v. Morris (e), Jacob v. Dodson (f), Fox v. Davis (g). Casey for the Respondent.-When the amount is ascertained, the time begins to run. Eddlestone v. Francis (h). [Williams, J.-There the debt was not recoverable at the time. Here it is not so till after the demand and the expiration of fourteen days.] Fellows now referred also to Labalmondiere v. Addison (j). Casey. There the amount was not ascertained. Both a notice and the demand were required there, and both of those were given at the same date. That leaves open the question whether the time ran from the notice or the demand. [Stawell, C. J.-Could you sue without any demand or notice, apart from the Act? Was your right to the action of debt given by the Act complete before the demand? It is natural justice, too, that you should make some demand.] Fellows also handed up Holmes v. Kerrison (k). On a bill of exchange the time of six years only runs after presentment and demand of payment. That is so where it is the contract of the two parties: à fortiori so here, where one party has nothing personally to do with the contract, and is only bound by his representatives, the members of the council, making the rate. Cur. adv. vult. SANDHURST. v. BRODERICK. (e) 2 Stark, 577. (h) 7 C. B., N.S., 568. (9) 6 C. B., 18. (k) 2 Taunt., 323. 1866. v. September 26. STAWELL, C. J.-In this case the Borough Council sought MAYOR, &c. OF to recover an assessment made under a rate struck in 1865, SANDHURST the proceedings to recover the rate before magistrates BRODERICK. having been instituted in 1866, more than twelve months after the rate was struck, but within twelve months after a demand had been made, and the expiration of fourteen days after such demand, as required by the " Municipal Corporations Act 1863" (1), and being, therefore, as was contended for the Defendant, beyond the limitation period fixed by the "Justices of the Peace Statute 1865." The contest was, on the one side, that the twelve months must be regarded as a limitation which commenced from the striking of the rate; and, on the other hand, that it did not commence until the demand had been made, and the fourteen days expired. We were referred by counsel for the Defendant to the case of Eddlestone v. Francis, but that was a very peculiar case indeed. [His Honor recited the facts of that case, distinguished it from the present, and quoted particularly Willes, J., as putting it clearly that the limitation. period only begins to run after demand made.] At all events, that case, if examined, is, as it appears to me, no authority for the proposition that the date of the mere striking of the rate is that from which the statute of limitations is to run. A demand is necessary under the Act, and even if this 205th section were not inserted in the Act, still a demand or notice of some kind should be made or given. The cases referred to in this case, in the Common Bench, particularly that of Labalmondiere v. Addison, put the case beyond all doubt. In the last-named case, the principle laid down seems to be that there must have been six months, made twelve by our Act, during which the matter of complaint was ripe for hearing before the magistrates. Till there had been a demand in writing, and a subsequent failure to pay during fourteen days, this matter of complaint was not ripe for hearing. Reeve v. Yates (m), supports the same view, and was a stronger case than the (1) No. 184, sec. 205. (m) 10 W. R., 779. 1866. SANDHURST v. BRODERICK. other. We think, therefore, that the time limited by the Justices Act did not commence until the demand was made MAYOR, &c. OF and the default committed. In other words, the Justices are to have twelve months, during any portion of which they might have heard this case, and they could not have heard it until the demand was made. We therefore think that the Justices had jurisdiction; and as the case states that "counsel for the Defendant admitted the Defendant's "liability to pay the amount sought to be recovered, if the "point raised by him could not be sustained," we will make an order for payment. Appeal allowed; order for payment made. Costs of complaint not mentioned. 1866. September 13, 14, 29. R. S., owner of the ship "Eva" (of which T. A. was master), and H. A. mutually agreed in Melbourne as follows: "That the said in every way ary, 1866, to in £600, and STEWART v. AUSTIN. RULE nisi to enter a verdict for Defendant. The decla ration was on the following agreement : : "Melbourne, 20th November, 1865. "It is this day mutually agreed between Robert Stewart, owner of "the good ship or vessel Eva,' of the measurement of - tons, or thereabouts, now in the port of Melbourne, whereof T. Anthony is "master, of the one part, and Mr. H. Austin, of Melbourne, and "freighter, of the other part. That the said ship be tight, staunch, "and strong, and in every way fitted for the voyage, shall be hired by "H. Austin from R. Stewart, for the term of three months, commenc"ing from the 21st day of November, 1865, and ending the 20th day of February, 1866, to trade between Melbourne and the Gipps Land Lakes. H. Austin is to insure the vessel in £600, and to pay all working expenses, provisions, crew's wages, towages, port-charges, "&c. The present master, T. Anthony, to remain as master, but under "the pay of H. Austin. The owner is to keep the vessel in sea-going "order. Terms-Forty pounds per month, payable monthly, in "advance. This agreement shall be renewed for three months upon "Mr. Austin giving one month's notice, on same terms, as heretofore. "Mr. Austin guarantees to tow the Eva,' in and out of the entrance "to the Gipps Land Lakes, as required by insurance. to pay all working expenses, provisions, crew's wages, towages, port-charges, &c. The present master, T. A., to remain master, but under the pay of H. A. The owner is to keep the vessel in sea-going order. Terms, £40 per month, payable monthly in advance. This agreement shall be renewed for three months upon Mr. 4. giving one month's notice on same terms as heretofore. Mr. A. guarantees to tow the Era' in and out of the entrance to the Gipps Land Lakes, as required by insurance." The ship having been by the act of God shut into the Lakes until June, 1866, the Defendant gave her up there to the master for the owner at the end of the second month. In an action for her hire, and for detaining her beyond the three months, &c., there was a verdict for plaintiff, and damages; with leave to move to enter the verdict for the defendant, on the issues as to detention, on the ground that the detention was not the detention of the defendant. Held, that the above agreement did not transfer the possession to the defendant; that under it the owner retained possession, and the defendant's re-delivery of the vessel in Gipps Land and not in Melbourne was sufficient; that the detention was not the detention of the defendant; and that the verdict must be entered for defendant on the issues as to such detention. The breaches alleged were-(1) "That the Defendant "has not paid the said sum of £40 per month for the "said hire of the said ship for the said term of three "months as aforesaid." (2) "That the Defendant kept "and detained the said ship four calendar months beyond "the said term of three calendar months, as aforesaid, "whereby the Plaintiff, during all the time of such deten"tion, was deprived of the use of the said ship, and in"curred expense thereby." The Defendant pleaded-(1) As to the first breach, firstly, payment of £80 before action; and, secondly, payment of £40 into Court. (2) As to the second breach, "did not keep and detain as alleged." Plaintiff replied, as to the first plea, that the £40 was not enough to satisfy Plaintiff's claim. At the trial it was proved, among other things, that the ship made one voyage to the Gipps Land Lakes and back, and a second voyage to the Lakes; but that whilst in the Lakes, on her second voyage, the outlet from them was closed up by storms, so that the "Eva" could not get out until June, 1865; that while the "Eva" was so shut into the Lakes, the Defendant gave to Pigott, the agent of the Plaintiff, a formal notice that he should not require her after the end of the second month of the three mentioned in the agreement; that at the end of those two months he said to the master, at Sale-"We have nothing to do with "the vessel; she's given up to Mr. Pigott, for the owners;" that from that time the Defendant acted consistently with his notice; and that in respect of the two months, the Defendant fulfilled his agreement. The only witnesses called were Pigott, the Plaintiff's agent, and Anthony, the master of the "Eva"--both called for the Plaintiff. 1866. STEWART v. AUSTIN. |