F.C. INGOLD, Ex parte Act of 1886, ss. 54, 56, 78, 79, 92, 140, 142, 143, 162, 163, Schedule III., Form 6 and Form 20. The Deserted Wives and Children Act of 1858, s. 2, requires proof of the mode, the time, and the place of service, and an affidavit in Form 6 is not sufficient evidence of proper service. [MCCAWLEY C.J.: Form 6 of the Third Schedule has been in use for many years, and has been regarded as sufficient]. The time allowed between the service and the return day of the summons was unreasonably short. Reasonable time for service means a reasonable time for enabling a defendant to present his defence. R. v. Justices of Louth (1), Strachan v. Strachan (2), Brimble v. Glover and Beaconsfield Justices (3), R. v. Licensing Justices of Mackay (4), Neighbour v. Moore (5). The Magistrate apparently did not direct his mind to the question whether the time allowed after service was reasonable. R. v. Anwyl (6), McKeering v. Mellroy, Ex parte Mellroy (7). The appellant made a mistake in the date; he intended to attend at the hearing. [MACNAUGHTON J. He might have appealed to a Judge of the Supreme Court exercising the jurisdiction previously exercised by the District Court. If there was a doubt about the procedure under The Justices Act, and there was no doubt that appellant would have a right to appeal by adopting another procedure, the Court would facilitate the appeal.] Fahey showed cause, and was directed by the Court to confine his argument to the question of the reasonableness of the time allowed for appearance. The question of the time allowed is one for the discretion of the Justices. Ex parte Hopwood (8), R. v. Nat Bell Liquors Ltd. (9), R. v. Justices of Cambridgeshire (10), Ex parte Williams (11), In re Zohrab v. Smith (12), The Deserted Wives and Children Act of 1840, s. 2, The Deserted Wives and Children Act Amendment Act of 1858, s. 2. The Court will not quash the conviction unless the unreasonableness amounts to a denial of justice; the appellant could have asked the Magistrate for a variation of the order. No attempt was made to secure an adjournment, and for that, at least, reaonable time was allowed between service and hearing. (1) [1914] 2 Ir. R. 54. (2) 1893, 5 Q.L.J. 45. (3) 1918, Tas. L.R. 23. (4) 1904, St. R. Qd. 223, at p. 230. (5) 1892, 4 Q.L.J. 145. (6) 1909, 73 J.P. 485. (7) 1915, St. R. Qd. 85. (8) 1850, 15 Q.B. 121. (9) [1922] 2 A.C. 128, at p. 152. (10) 1880, 44 J.P. 168. (11) 1851, 15 J.P. 757. (12) 1848, 17 L.J.Q.B. 174. Stanley, in reply, referred to R. v. Smith (1). F.C. PORTER V INGOLD. MCCAWLEY C.J.: We think that the order should be discharged. INGOLD, Ex parte The first point raised is that the affidavit of service was insufficient because it did not specify the time and day of service. I think McCawley C.J. that there is nothing in that point. The second point is that too short a time was allowed between the service on 6th March and the hearing on 8th March, that the Magistrate had no jurisdiction to hear the complaint. The question of the sufficiency of such time is, I think, a matter for the Justices. R. V. Justices' of Cambridgeshire (2), Ex parte Hopwood (3). There is no case for prohibition. Then it was urged that it was unreasonable for the Magistrate to proceed with the hearing in the absence of the defendant in view of the shortness of the period which elapsed between the service of the summons and the time fixed for the hearing of the complaint. I do not think that the circumstances of this case were such that this Court should should say that the Magistrate acted in an unreasonable way, and should set aside the order on that account. The defendant could at least have appeared and asked for an adjournment. I think it would have been better if a longer time had been allowed by the Magistrate, but, on the other hand, I cannot lose sight of the fact that the defendant was not without a remedy, for he could have appealed under s. 237 of The Justices Act of 1886, and asked that the matter might be re-heard. SHAND J. I agree; but like the Chief Justice, I do not wish to be understood as meaning that the Magistrate acted wisely in adjudicating in the defendant's absence where such a short notice had been given of the hearing. However, I do not think that the circumstances are such as to amount to a denial of justice, or to afford grounds for quashing the order which was made by the Magistrate. Shand J. Macnaughton J. Order nisi discharged, with costs. Solicitor for the appellant: J. Crawford. Solicitors for the respondent: O'Shea & O'Shea. (1) 1875, L.R. 10 Q.B. 604. (2) 1886, 44 J.P. 168. (3) 1850, 15 Q.B. 121. 1922. October 30 November 6, 8, McCawley C.J. BAKER v. BIDDLE. Mortgage--Collateral advantage-Option to purchase-Clog on equity of redemption. By an agreement, which purported to have been made on 23rd September, 1919, A. agreed to assist B. in acquiring a ten years' lease of a hotel and to give the financial assistance necessary for obtaining the lease and license thereof at four per centum interest per annum, and to supply B. with goods and liquor; and B. appointed A. her attorney to execute a surrender of the lease, 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 been called 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 mortgage was given over the leasehold property to secure repayment to A. of £325, with interest &t € per certum and further advances and the price owing for any goods 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 indebtedness 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 alternatively damages. Held, that if the option had been included in the bill of mortgage it would have been inconsistent 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. MOTION. This was a motion for an injunction which was treated as the trial of an action whereby the plaintiff claimed specific performance of an agreement, by which the defendant agreed to sell the unexpired term of a lease, and an injunction restraining the defendant from transferring or dealing with the lease. At the trial, the plaintiff was allowed to amend by adding an alternative claim for damages. O. VI., r. 2; 0. XXXII., rr. 1 and 3. The facts are set out in the judgment. The motion was heard on 30th October 1922 and judgment was reserved. On 6th November, McCawley C.J. directed re-argument and referred to Kreglinger v. New Patagonia Meat and Cold Storage Company Limited (1) and Harper v. Joblin (2). MacLeod, for the plaintiff. McGill, for the defendant. Counsel referred to Goldsbrough, Mort, and Company Limited v. Quinn (3), Frith v. Frith (4), Bowstead on Agency, 6th Ed., p. 456, The Real Property Act of 1861, s. 104, Purcell v. Deputy Federal Commissioner of Taxation (5), Reeve v. Lisle (6); Halsbury, Laws of England, Vol. III., p. 12; Worthing Corporation v. Heather (7), Woodall v. Clifton (8), Kreglinger v. New Pategoria Meat and Cold Storage Company Limited (1), Samuel v. Jarrah Timber and Wood Paving Corporation (9), Harper v. Joblin (10), Coburn v. Collins (11). C.A.V. BAKER V. BIDDLE. MCCAWLEY C.J.: The plaintiff in this case claims specific McCawley C.J. performance of an agreement, dated 23rd September, 1919, by which the defendant, Martha Biddle, agreed to sell to the plaintiff the unexpired portion of the defendant's lease of the Wadeleigh Hotel, Bororen, and the license, goodwill, etc. He also claims an injunction to restrain the defendant from transferring or disposing of the lease, etc. On 30th October last the plaintiff moved for an injunction, and the parties agreed to take the hearing of the motion as the trial of the action. The plaintiff applied for and obtained leave to amend the writ by adding an alternative claim of £530 damages for breach of agreement. On 23rd September, 1919, the defendant, Martha Biddle (Martha Graham as she then was,) entered into an agreement. (1) [1914] A.C. 25. (2) 1916 N.Z.L.R. 895. (3) 1910, 10 C. L. R. 674. (4) [1906] A.C. 254, at pp. 259-61. (5) 1920, 28 C. L. R. 77, at pp. 84-6. (6) [1902] A.C. 461. (7) [1906] 2. Ch 532. (9) [1904] A.C. 323. BAKER V. McCawley C.J. The agreement recites that the plaintiff, a general commission On 24th October, 1919, the owners leased the hotel to the defendant for ten years from the 20th October, 1919. On the same day (24th October, 1919) the defendant executed a bill of mortgage and a bill of sale to secure the repayment to the plaintiff of the sum of £325 4s. 1d. with 6 per cent. interest" and all such further and other sums as shall hereafter during the continuance of this security be advanced or paid by the mortgagee to or for the mortgagor or as shall at any time during the continuance of this security be due by the mortgagor to the mortgagee for goods supplied or on any other account whatsoever." The bill |