VENDOR & PURCHASER-Covenant | attorney that he has no notice of the revocation
to deliver abstract of title within reasonable time
Dependent covenant-Condition precedent.] The
defendant bought an allotment of land from the
plaintiff at an auction sale. The conditions of
sale were that the purchaser should pay a
deposit of 20 per cent. and the balance in four
yearly instalments; and that the vendor should
within a reasonable time after the sale deliver
an abstract of his title. The defendant paid the
deposit, and eight years after the sale the
plaintiff sued for the residue of the purchase
money. The plaintiff never delivered an abstract
of his title, nor had the defendant demanded it.
The Court ordered a verdict to be entered for
the defendant on the ground that the covenant
to deliver the abstract of title was not an
independent covenant, but that its performance
was part of the consideration and a condition
precedent to the right of the vendor to sue for
the purchase money. COOPER v. GILLIES 396

of his power by death or otherwise is conclusive
proof of non-revocation when made to a bona
fide purchaser for valuable consideration with-
out notice of any such revocation. Held, that
a general verdict against such purchaser in an
action to recover the property was justified by
evidence to the effect that such purchaser had
cause to suspect and did suspect the truth of
such declaration, and that an order refusing a
new trial must be affirmed. The 17 Vic No.22
does not apply only to cases where no notice of
revocation has been received either by the
attorney or the purchaser; its sole object is to
protect a bona fide purchaser, without notice,
against the fraud of the attorney. MACMILLAN
AND WIFE v. THE MUTUAL PROVIDENT LAND
INVESTING AND BUILDING SOCIETY, LIMITED - 1

2.Power of attorney-Notice of revocation
-17 Vic. No. 22-Fraudulent declaration by
attorney-Bona fide purchaser without notice.]
By the 17 Vic. No. 22 a declaration made by an

WILL-Rents and profits-Trustee.] A devise
of land to trustees to receive the rents and
profits, and pay the same to the cestui que trus,
or otherwise to allow her to receive the same,
vests the legal estate in the cestui que trust.
MARTIN v. PHILLIPS
481

CASES IN EQUITY.

AESTRACT OF TITLE-See SPECIFIC | premises or be used in connection with his
PERFORMANCE, 2.

ADMINISTRATION- Widower - Next
of kin-Personalty exhausted by debts-Charter
of Justice, clause 14-Costs.] Where the per-
sonalty of an intestate would be exhausted by
her debts the Court granted administration to
the only next of kin, the daughter by a former
marriage, in preference to the widower, and
directed that the costs of the suit should be paid
out of the estate and be chargeable on the
realty. D'ARCY v. MORAN
120

-

-

ADVANCEMENT Resulting trust
Crown Lands Alienation Act, 1861 (25 Vic. No. 1)
-Conditional purchase, transfer of by trustee to
infant.] M., who held a conditional purchase as
trustee for T., transferred to L., who transferred
to the defendant, a daughter of T. and an in-
fant of sixteen years. L. admitted that he held
the land as trustee for T. Held, on the evidence
that the transfer to the defendant was not by
way of advancement, and that she held the
lands as trustee for T. Tooth v. Power dis-
tinguished. WOOLDRIDGE v. M'CLURE 226

BILL OF SALE-Assignment of "book
and business debts "--Book debts created subse-
quent to bill of sale-Books containing entry of
such debts-Injunction to the hearing.] A bill of
sale contained an assignment of all the stock-in-
trade, plant, chattels, &c., of the grantor, a
general merchant, and also "all other the
chattels and effects, matters and things which
at any time during the continuance of this
security" should be brought upon the grantor's

business, and all the contracts, book and busi-
ness debts of the grantor in connection with the
said business. There was also a provision that
the grantor should keep up the stock-in-trade.
Held, on motion for interlocutory injunction.
that book debts created subsequent to the bill
of sale were included and also the books in
LONDON CHAR-
which the debts were entered.
TERED BANK OF AUSTRALIA v. FISCHER - 193

2.-Prior verbal agreement-Act of bank-
ruptcy-Company-Liquidation.] A bill of sale
given in pursuance of a prior agreement dates
back to that agreement, unless it be shewn that
the bill of sale was postponed with the in-
tention of giving the debtor a fictitious credit
with other creditors. It is not sufficient to
shew that at the time the bill of sale was
executed the person granting it was in insolvent
circumstances. AUSTRALIAN CO-OPERATIVE,
&c., Co. v. L.C. BANK OF AUSTRALIA - 98

CHARTER OF JUSTICE-See TRUSTEE,
REMUNERATION TO.

COMPANIES ACT (37 Vic No. 19), s.
33-Rectification of register-Right of appeal to
Full Court from the order of the Primary Judge
-4 Vic. No. 22-Equity Act of 1880 (44 Vic.
No. 18.] An appeal to the Full Court lies from
an order made by the Primary Judge under s.
33 of the Companies Act. Ex parte MOON 288
COMPANY-See BILL OF SALE, 2.

CONDITIONAL PURCHASE,
TRANSFER OF BY TRUSTEE TO
INFANT - See ADVANCEMENT.

CONTRACT, CONSTRUCTION OF
- Forfeiture Deposit - Penalty - Liquidated
damages.] The plaintiffs entered into a contract
with the defendants for the construction and
working of a tramway. In pursuance of a pro-
vision in the contract 1000%. was paid to the
credit of the defendants, "to be declared for-
feited to the council by way of liquidated and
ascertained damages in case of the non-comple-
tion of the said contract, or the due observance
or performance of any of the covenants herein
contained, but to be returned to the contractors
upon the completion of the tramway."
By
another clause the plans and sections of the
proposed tramway were to be submitted to and
approved by the borough council within two
months. The two months expired on a Sunday,
and on the Monday the defendants' solicitor
wrote to the plaintiffs reminding them that the
plans must be submitted. The plaintiffs sent
the plans by their agent to the next meeting
of the council, on the following Tuesday, but
the defendants refused to receive them. Held
(per Owen, J.), that the 1000l. was not a penalty
but liquidated damages and was forfeit. By the
Full Court, that there was no breach for which
the 10007. could be forfeited, and further that
the breach had been waived. COONAN AND
OTHERS v. BOROUGH OF BALMAIN
270

by indenture dated May 22, 1880, J. A. did
retire, in pursuance of the agreement, his share
being transferred to W. A., and the 16,0002.
being in the partnership accounts charged to
entered into a contract with one J. B. for the
the partnership. On May 15, 1880, W. A. had
purchase of a station called Canonbar, for
purchase money, which, on June 21, 1880, was
150,000l., and had paid 40,000l. on account of the
By indenture, dated October 29, 1880, made
repaid to him by the cheques of the partnership.
between W. A., the plaintiff. and R. H.
(releasee to uses), and reciting the retirement
of J. A., and the purchase of Canonbar, and
that W. A. was desirous that Canonbar should
form part of the capital stock of the partnership
and that the plaintiff should have an equal
share with him in the said capital stock,
including Canonbar "the full price of which he,
the said W. A. the elder, is to pay," it was
tion of the said desire and of the natural love
witnessed that, "in pursuance and in considera-
and affection which the said W. A. the elder
has towards the said W. A. the younger" (the
plaintiff), W. A. (the father) transferred the
share of J. A. and also Canonbar to the part-

nership. The indenture also contained a stipu-
lation, which was also contained in the original
partnership deed of 1879, that the plaintiff
should devote the whole of his time, attention
and skill to the management of the partnership
concern, and that W. A. should not do so unless
he thought fit, and there was also a memorandum
that the partnership was to last for five years,
from May 17, 1880. Joint and several pro-
missory notes were given by W. A. and the
plaintiff to J. B. for the remainder of the
purchase money; and a mortgage executed by
quently paid off by money advanced by the City
them as security. The mortgage was subse-
Bank. By indenture, dated April 10, 1883, the
partnership was extended to May 17, 1890;
the transfer of J. A.'s share and Canonbar, and
that indenture contained a recital which set out
continued, "the full price of which the said
claimed that the recital in the deed of October
W. A. the elder was to pay." The plaintif
29. 1880, amounted to a covenant by W. A. to
indemnify the partnership against the payment
of the purchase money of Canonbar. In the part-
CONVEYANCE, ABSOLUTE-See nership accounts the partnership was debited

MORTGAGE.

COSTS OUT OF THE ESTATE-
See WILL, UNSUCCESSFUL OPPOSITION TO.

COVENANT-Recital-Variation of cove-
nant by subsequent dealings of parties-Ambiguous
covenant-Construction put upon it by subsequent
conduct of parties-Estoppel-Attempt by cove-
nantee to set up ignorance of contents of his
deed.] The plaintiff, his father W. A., and his
brother J. A., carried on business as graziers,
under articles of partnership dated April 25,
1879. In March, 1880, it was agreed that J. A.
should retire from the partnership, receiving as
consideration for his share an estate in Scotland,
the property of W. A., valued at 16,000l., and

with the purchase money, and the subsequent
conduct of the parties was inconsistent with the
view that W. A. the elder was to pay the whole of
the purchase money. W. A. died in 1885; the
plaintiff's attention was first called to the words
on which he relied in 1886. Held, per curiam
(1), that the words did not amount to a covenant.
Per INNES and FOSTER, JJ., that if the words
did constitute a covenant they were ambiguous
and that the parties had put a construction on
them inconsistent with the plaintiff's claim;
(2) per INNES and FOSTER, JJ., assuming that
there was a covenant, and that it was unam-
biguous, and that the plaintiff's construction
were correct, the subsequent conduct of the
parties shewed that they had agreed to abandon
it; that the evidence did not shew that the
plaintiff was ignorant that the words were in

the deed, and that if it did, the Court would
not regard it, because a person cannot be
allowed to say that he does not know the words
of his own deed with a view to escape the con-
sequences upon that deed of his subsequent
conduct. Held, further, that evidence of state-
ments by W. A. of his intention, previous to
the execution of the deed of October, 1880, were
rightly rejected, Decision of Owen, J.,
affirmed. ALISON v. ALISON -
75
ON APPEAL 163

-

3. Ss. 33, 34-New trial of issue tried by a
jury under s. 33-Discretion of Judge-Affidavits
supplementing evidence given at the trial.] The
discretion formerly possessed by the Court of
Chancery in granting new trials of issues has not
been affected by the Equity Act of 1880, and
the Court may supplement the evidence given at
the trial by a consideration of affidavits setting
forth facts which did not appear at the trial
Per the C.J. and STEPHEN, J. (FOSTER, J., diss.),
affirming the decision of Owen, J. GOODSELL v.

NATIONAL BANK OF AUSTRALASIA.

32

OF REDEMPTION.
TRANSFEREE OF-Liability to indem
nify transferor against action by mortgagor on
covenant to pay-See RELEASE OF DEBT.

ESTOPPEL, PARTNERSHIP BY-

DISCOVERY-Sufficiency of affidavit- See PARTNERSHIP, EVIDENCE OF.
Documents inadmissible in evidence-Immateri-
ality.] The plaintiffs in their affidavit of
discovery objected to produce certain documents ESTOPPEL-See COVENANT.
on the grounds that they related solely to the
case of the plaintiffs and not to the case of the
defendants, or any of them, and did not in any
way tend to support the claim of the defendants,
or any of them, and did not contain anything
impeaching the case of the plaintiffs.
documents were clearly not admissible
evidence for the plaintiffs. On application by
defendants for production, held, that as the
documents could not be used by the plaintiffs,
and as the plaintiffs swore that they did not
support the case of the defendants, they must
be immaterial, and that defendants were not
entitled to production. A. J. S. BANK v.
STEEL
18

EVIDENCE, IMPROPER RECEP
TION OF-See NEW TRIAL

The EVIDENCE-See EQUITY ACT, S. 31.

as

2.--See PRACTICE.

EXCEPTION TO GRANT - See SPE-
CIFIC PERFORMANCE.

EXECUTOR, DEBT DUE FROM-
Breach of trust-Debt payable on demand.
Interest bearing debt--Rate of interest.] When
an executor is indebted to the estate in a sum
which is payable only if demanded, the Court
will presume that the demand was duly made,
for the executor is the only person who can
breach of trust. In re HAIGH'S ESTATE 303

EQUITY ACT (44 Vic. No. 18), ss. 4, 57- make it, and if he does not he is guilty of a

See MARINE Board.

The TION OF.

HUSBAND AND WIFE, PETITION
BY-See SPECIFIC PERFORMANCE, 2.

HUSBAND AND WIFE, SUIT
BY-See PRACTICE, 3.

2.- -8. 31-Equity rules, 29th June,
1883, No. 130-Rules of 21st May, 1888, FORFEITURE-See CONTRACT, CONSTRUC-
No. 21-Evidence-Shorthand notes.]
appellants filed printed copies of the note taken
by the Primary Judge. Those notes were very
brief, and at the head of them were the words
After
"Cunningham to take shorthand notes."
the printed copies had been filed, the solicitor
for the respondents wrote to the solicitor for the
appellants, pointing out that he should have
filed copies of the shorthand notes, but the
latter, being unwilling to incur further expense,
took no further steps in the matter. This letter
was written after the time for filing copies of
the notes had expired. Held, that No. 21 of
the rules of 21st May, 1888, which requires that
the evidence shall be printed had not been
complied with, and that the appeal must be
dismissed. In re GURNEY BRICK CO. (Harker's
Case). -
301

INJUNCTION-See MARINE BOARD.

INJUNCTION TO THE HEARING

Doubtful point of law materially affecting the
positions of the parties - Real Property Act,
sections 16, 18, 19-Failure of Registrar-General
to send notice of time limited by Commissioners
under section 16 until after the expiration of the
time so limited - Power of Commissionera to

extend the time for sending the notice.] The Court
will not, on application for an injunction to the
hearing, decide a doubtful point of law where
the effect of such decision would be to materially
alter the position of the parties; in such a case
the injunction will go whatever may be the
Court's opinion as to the ultimate result of the
suit. The Registrar-General served notices on
certain persons in accordance with s. 18 of the
Real Property Act, but not until after the
expiration of the time limited by the Com-
missioners under s. 16. Held, per OWEN, J.,
that the notices were bad. CHAPPEL V. BROUGH-

their duty, but were also doing a wrongful act
by publishing an illegal regulation, and thereby
preventing the plaintiff from getting a certificate.
Held, on appeal, that the regulation was not
ultra vires, and that the Board might, inde-
pendently of any regulation, have refused a
certificate to any steamship unless fitted with
bulkheads. JEANNERET v. HIXSON
1

MEMORIAL OF LEASE AND RE-
LEASE-See PRACTICE.

MORTGAGE - Security Absolute
veyance--Intention of parties shewn by subsequent
Supreme Court, reported 9 N.S. W. L.R. Eq. 78.
Held, that the transaction of 20th July, 1874,
was not a mortgage, but an absolute conveyance.

INSANE DELUSION-See WILL, UN- dealings.] Appeal from the decision of the
SUCCESSFUL OPPOSITION TO (2).

INTEREST BEARING DEBT-See BARTON v. BANK OF NEW SOUTH WALES 308
EXECUTOR, DEBT DUE FROM.

NAVIGATION ACT (35 Vic. No. 7)—

LIQUIDATED DAMAGES-See CON- See MARINE BOARD.
TRACT, CONSTRUCTION OF.

MANDAMUS-See MARINE BOARD.

NEW TRIAL-Improper reception of evi-
dence-Evidence not material to the issue.] The
Court will not grant a new trial on the ground
evidence could not have affected the minds of
of improper reception of evidence, where such
the jury, or where, apart from such evidence,
the verdict could not have been supported if it
NATIONAL BANK OF AUSTRALASIA (2)
had been found the other way.

OF.

2. See EQUITY ACT.

GOODSELL v.

156

MARINE BOARD-Power to make regu-
lations - Regulation providing for transverse
water-tight bulkheads in harbour and river
steamers-Navigation Act (35 Vic. No. 7), ss. 19,
29, 31, 47-Mandamus-Wrongful Act by public
body-Injunction-Equity Act (44 Vic. No. 18),
88. 4, 57.] The Marine Board published a
regulation purporting to be made under the
Navigation Acts of 1871 and 1881, whereby they
ordered that "every harbour and river steamer,
whether constructed of wood or other material, NOVATION-See PARTNERSHIP, EVIDENCE
before being entitled to a renewal or issue of
her passenger certificate, shall be divided by
transverse water-tight bulkheads." By s. 38
of the Navigation Act of 1871, no steamship
may proceed to sea, or upon any voyage or
excursion, with passengers on board unless the
master holds a certificate from the Marine
Board; the plaintiff, the owner of a wooden
harbour and river steamer, applied to the
Marine Board for a certificate, but the applica-
tion was refused on the ground that he had not
complied with the regulation. The plaintiff
prayed that the regulation should be set aside
as ultra vires, and that the Marine Board should
be restrained from enforcing it; that the Marine
Board should be restrained from refusing to
issue a passenger certificate to the plaintiff on
the sole ground that the regulation had not
been complied with; and that if the Marine
Board refused to issue a certificate on the ground
of non-compliance with regulation, they should
be restrained from prosecuting the plaintiff for
plying without a certificate. Held, per Owen,
J. (1) That the regulation was ultra vires,
because wooden steamers are expressly omitted
from s. 47, and the Board have no power to add
to the Act by regulation. (2) That the Court
had the power to grant the relief prayed, as the
defendants were not only refusing to perform

PARTNERSHIP, EVIDENCE OF-
Partnership by estoppel-Cheques signed by
alleged partner-Novation-Deed of release,
exceptions contained in―Reservation of rights
against persons liable for debts of releasee as surety
or sureties, "or otherwise howsoever "-Joint
liability as partner.] A.B. was in the habit of
joining A.H.B. in signing cheques drawn upon
the plaintiff bank upon the account of a certain
business. Held, this was sufficient to constitute
A. B. a partner by estoppel as regards the
plaintiffs. Held, further, on the evidence that
A.B. was in fact a partner. After the death of
A.B., A.H.B. applied to the plaintiffs for an
overdraft to pay off the existing partnership
debt. He obtained the overdraft. but did not
apply it towards payment of the debt. Held,
that this did not constitute a substitution of the
sole liability of A H. B. for the joint liability of
A.H.B. and A.B., though it would have if the
overdraft had been applied as proposed. Held,
on the evidence-(1) That A B. and A. H.B.
were partners in fact; (2) that both would be
estopped from denying that they were partners
even if in fact they were not, and that they were
jointly liable, though they would not have been
jointly liable if one had been a partner by