MALICIOUS PROSECUTION-Continued.
to transfer the license, and to sell the lease at
such price as he thought fit, and to do other acts.
The agreement contained a clause providing
that B. might at any time during the term of
the lease call upon and compel her attorney, A.,
to purchase the lease, license, goodwill, etc., of
the hotel from B. at a price calculated for the
unexpired portion of the term upon £800 for the
whole term, and in like manner A, might call
upon B. and compel B. to sell to A, or his
nominee the unexpired portion of the lease
and the license, goodwill, etc., at the same price
as A. would have to pay to B. if he had Leen
cilled upon to purchase.

On 24th October, 1919, B. obtained a lease of
the hotel for ten years, and executed a bill of
mortgage and a bill of sale. This bill of mort
gage was given over the leasehold property to
secure rep yment to A. of £325, with interest at
6 per centum and further advances and the price
owing for any good supplied. The bill of sale
recited the acquisition by B. of the lease, license,
goodwill, etc., of the hotel, the loan of £325 to
her by A., and contained a clause irrevocably
appointing A. to make further assignments, to
apply for renewals, etc. Under both instruments
B. was at liberty to discharge the whole of her
liability at any time. In August, 1921, A.
assigned the bill of sale and bill of mortgage to
G. and notice of the assignment was given to B.
In December, 1921, B. discharged her indebted-
ness under the bills of sale and mortgage. In
September, 1922, A. exercised his option of
purchase under the agreement, but B. refused
to give effect to the purchase, and A. brought
an action claiming specific performance of the
agreement to sell the unexpired portion of the
lease, license, etc., and an injunction or alterna-
tively damages.

Held, that if the option had been included in
the bill of mortgage it would have been incon-
sistent with the equitable or contractual right
of redemption; that the agreement, bill of sale
and bill of mortgage all formed part of one loan
and mortgage transaction; and that the option
was invalid.

BAKER V. BIDDLE

NEGLIGENCE-

2.

AMENDMENT.

3.

4.

APPEAL.

See BILL OF SALE.

See MAGISTRATES COURTS.
See PRINCIPAL AND AGENT.

COSTS.

-Matrimonial action-Petition for dis-
solution of marriage by husband-Cross petition
for judicial separation-Both petitions dismissed
-Costs of co-defendant.

Under a deed of separation made in 1917 the
plaintiff lived apart from the defendant, his wife.
The deed contained the usual dum casta clause.
The plaintiff brought an action claiming dis-
solution of marriage on the ground of adultery,
the defendant by cross petition claimed a
judicial separation on grounds of desertion and
cruelty. From the evidence it appeared that
since December, 1922, the co-defendant and
another woman conducted a wine shop in
partnership, and lived in a small flat al ove the
shop, the two women occupying a bedroom at
the back and the co-defendant a stretcher in a
front room. Evidence was given by three
detectives which, if believed, proved adultery,
but it was disregarded. The only other evidence
going to adultery was that concerning their
place of residence and proving the opportunity
of committing adultery. Both petitions were

dismissed.

Held, under the circumstances, that the
co-defendant was not shown to have been guilty
of conduct which induced the plaintiff to bring
the action, and without which it probably would
not have been brought, and he was allowed his
costs of the trial.

GREEN V. GREEN AND ROBERTS.

McCawley C.J. 46

5.

Macnaughton J. 183
And See LoCAL GOVERNMENT.
And See MAGISTRATES COURT. 5.
And See PRINCIPAL AND AGENT.

DAMAGES.

See MAGISTRATES COURT.
DISTRICT REGISTRY.

See PRACTICE-Action.

DIVORCE.

-Dissolution of marriage-Lunacy-
Defendant a lunatic or person of unsound mind-
Service Representation-Guardian ad litem-
Person approved by the Court-Public Curator-
The Matrimonial Causes Acts Amendment Act of
1922, s. 2 (1) (a)—The Insanity Act of 1884 (48
Vic., No. 8)---0. III., rr. 15, 16, 19-O. X., r. 5
-0. XV., r. 1.

LONGMORE v. LONGMORE

Q.W.N. 36

SALE OF GOODS—Continued.

Held, that there was no legal obligation to
purchase and that the case fell within the
principle of Helby v. Matthews ([1893] A.C. 471)
and not of Lee v. Butler ([1893] 2 Q B. 318), and
an injunction was granted restraining K. from
interfering or dealing with the plant.

Held, also, that s. 3 subsec. 4 and s. 4 of The
Bills of Sale Act of 1891 bestowed no rights on
K., because even assuming that the agreement
was an unregistered bill of sale, if E. had no
title to the property, K. could acquire none from

him.

2. -Sale through agent-Goods consigned to
agent to be delivered on payment of price-Pay-
ment of part of price to agent-Buyer signing
hire-purchase agreement in which agent as owner
hires to buyer-Transfer of property to agent as
against execution creditor.

T. posted to Q. company in Brisbane an order
which was signed by Mrs. N., as purchaser, and
by T. himself, as agent in Maryborough of Q.
company. By this document, Mrs. N. ordered
from Q. company a chassis, to be delivered to
the railway station, Brisbane, and consigned to
Mrs. N., at Byrnestown, and agreed to pay
£200 net cash for it, of which sum one-third was
to accompany the order, and the balance was
to be paid on intimation that the chassis was
ready for delivery. In the letter which enclosed
this order, T. informed Q. company that they
could truck the chassis to Byrnestown and draw
But on the following day T. wrote
again, saying that he had made an error on the
order for the chassis for Mrs. N. of Byrnestown
that it had to be delivered at Maryborough,
and asked Q. company to alter the sheet. Later
on, T. wrote and asked Q. company to hurry on
with the chassis for Mrs. N., which was to be
railed to Maryborough. Q. company forwarded
the chassis to T. (Maryborough), and on the
same day, through their bankers, sent to T. a
request for payment by him of the sum of
£173 9s. 10d, being the price of the chassis

on him.

£200, less T.'s commission on the sale effected
through his agency. On presentation of this
request to T. (who had then only received £25
from Mrs. N.) he voluntarily paid the full sum
of £173 93. 10d. to Q. company. On arrival of
the chassis at Maryborough, and before Mrs. N.
took delivery of it, she paid to T. a further sum
in part payment for the chassis, and signed a
hire-purchase agreement, by the terms of which
T. purported, as owner of the chassis, to hire it
to Mrs. N. by an agreement containing the
clauses usually found in hire-purchase agree.

ments.

On the hearing of an interpleader summons
taken out by the sheriff to decide the ownership
of the chassis which had been seized by a bailiff
at the instance of M., a judgment creditor :

Held (per Shand J.), that the effect of the
execution of the hire-purchase agreement was
to vest the property in the chassis in the agent,
and that the sheriff should be ordered to with-
draw from possession.

Held, on appeal, that the agreement did no
more than recognise T. as the owner, and that
it was immaterial whether T. purchased the
truck or whether Mr. N. purchased it and
subsequently acquiesced in T. assuming and
exercising ownership thereof, and that the appeal
should be dismissed.
McAvoy.

MCAVOY v. NILSON. TARRANT v.

SERVICE

And See BILL OF SALE.

F.C. 153

See DESERTED WIVES AND CHILDREN
3.

See MAGISTRATES COURT. 1, 2, 3.
See PRACTICE-Divorce. 7, 8.

SERVICE AND EXECUTION OF PROCESS
ACTS-

See MAGISTRATES COURT. 3.

SOLICITOR-

See BARRISTER.

SPECIFIC PERFORMANCE-
See MORTGAGE.

on sale"-

STAMP DUTY- "Conveyance
Compulsory taking by Local Authority-Com-
pensation for land taken-Land taken under s
13 of The City of Brisbane Improvement Act of
1916-The Stamp Act of 1894-1918, 88. 49, 49A-
The City of Brisbane Improvement Act of 1916
(7 Geo. V., No. 24), s. 13.

Section 13 of The City of Brisbane Improve-
ment Act of 1916, provides:
The Council may,
without complying with this Act, enter into an
agreement to take any estate or interest of any
person in any land required, and in such case the
compensation to be paid may be either agreed
upon or left to be determined under this Act.."

Held, that an instrument, executed in pursu.
ance of the provisions of s. 13, whereby land is
transferred to the City of Brisbane in considera-
tion of an amount of money agreed upon as
the compensation therefor, is not liable to stamp
duty as a conveyance on sale."

CITY
STAMPS.

SUGAR-

1.

-Sugar cane-Assessment-Liability of
mill owner-Sugar mill in respect of which no
local Sugar Cane Prices Board constituted—
Regulation of Sugar Cane Prices Act of 1915
(6 Geo. V., No. 5), ss. 3, 20.

Sec. 20, subsec. 3 of The Regulation of Sugar
Cane Prices Act of 1915 applies to a sugar mill

TRAMWAYS-Continued.

expired upon the acquisition of the Tramway at
the expiration of the defined period, were not
not acquired by the councils, and therefore
should not be included in ascertaining the
amount of purchase money payable; that the
purchase money for each of the tramways
completed more than 14 years before the
acquisition of "the Tramway under the Act
of 1922, should be the value to the Company of
the Tramways with their appurtenances,
assessed on the basis or principle approved by
the House of Lords in The Edinburgh Street
Tramways Company v. The Lord Provost, etc.,
of Edinburgh ([1894] A.C. 456), and that the
purchase money for each of the tramways com-
pleted less than 14 years before the acquisition
of the Tramway under the Act of 1922,
should be the value to the Company of those
tramways with their appurtenances, assessed on
the basis of what a hypothetical prudent
purchaser should pay to stand in the shoes of
the Company (with all the Company's statutory
rights, powers and obligations) in respect of
each of such tramway undertakings, including
the contingency of the councils exercising the
power of compulsory purchase of the tramway
with its appurtenances under s. 84, subsec. 1
of the Act of 1882 on the basis of the Edinburgh
Street Tramways Co. Case (supra) after the
expiration of 14 years from the time when such
tramway was completed (or deemed to be
completed under the Act of 1913 and agreements
thereunder); and that the apparatus used by
the Company for the purpose of supplying
electric light, heat and power could not be
regarded as coming within the expression "the
tramway with its appurtenances or the
Tramway."

"

Held (Shand J.), that in assessing the amount
of the purchase moneys payable under the
provisions of s. 84 (2) of the Act of 1882, the
assessing tribunal must take into consideration
the value which the physical properties con-
stituting the "tramway with its appurten-
ances" would have had for the Company if it
had been left in undisturbed possession of them,
with the right to use them for the purpose of
working the tramway traffic under the pro-
visions of the Acts of 1882 and 1890, and taking
the tolls authorised thereby.

Held (Lukin J.), that the basis of assessment
of the purchase money payable should be the
value of the Tramway as a profit-earning,
commercial-going concern, with all its assets
and powers-that is to say, the price that a
willing purchaser would, at the date of acqui-
sition, have had to pay to a vendor not unwilling,
but not anxious, to sell the undertaking in
question; and that such value should be
ascertained by a capitalisation of the net
income-earning capacity of the Tramway,

1. Construction Substitutionary gift-
Gift to "children of my deceased sister"-Gift to
children of any beneficiary under the will who
should die in testator's lifetime-Child of late
sister dead at date of the will, leaving issue.

A testator devised and bequeathed his
property to trustees upon trust for conversion.
and directed them (inter alia) to pay one-third
of the residue "to the children of my deceased
sister K.

the

provided always that if any
male or female being a beneficiary under this
my will shall die in my lifetime leaving a child
or children who shall survive me
child or children shall take (and if more than one,
equally between them) the share which his or
their parent would have taken of and in the
residuary trust funds if such parent had survived
me and attained the age of twenty-one years."

L., one of the children of the testator's de-
ceased sister K., died before the date of the will,
leaving a daughter who survived the testator.

Held, that the daughter of L. was not included
as a beneficiary under the above residuary gift.
In re LYDIKSEN. CHRISTENSEN AND OTHERS
v. ERICKSEN AND OTHERS.. O'Sullivan J. 107

-

2. - Construction — Children — Illegitimate
children-Gift of residue to trustees upon trust to
pay to a named person for life, and upon her death
to divide the residue into the same number of shares
as there should be children of her surviving the
testator or dying in his lifetime leaving issue living
at her death-Marriage of testator with the
beneficiary for life-Revocation of willby mar
riage-Revival of will by codicil-No legitimate
children.

By his will made in 1918, a testator appointed
L. and the defendant company to be executors
and trustees thereof, and gave, devised and
bequeathed his residuary real and personal
estate to this trustee upon the following trusts,
namely "Upon trust to pay the income of
such residuary estate to the said L. during her
life and from and after her death to divide my
residuary estate into the same number of equal
shares as there shall be children of the said L.