have come to see you about my bills coming
due, I cannot meet them." R. said, "What do
you intend to do?" T. said, "I think you had
better take over the business yourself, as you
hold the bill of sale." R. said, "There is no
necessity for that; how do you stand? Are
there any other creditors?" T. said, "Here is
my position," and handed him a statement of his
affairs. R., after looking at the statement,
said, "You are not in any difficulties; you
only want time to get in a lot of those book-
debts." T. said, " They won't pay me, I've
tried; I am sick of it; I would rather give up.'
Held (by the Judge in Bankruptcy, whose
decision was affirmed on appeal), that this
conversation amounted to an act of bankruptcy
within the meaning of sub-s. h of s. 4 (1) of the
Bankruptcy Act, 1887. In re THOROLD 331

2.- Bankruptcy Act, 1887 (51 Vic No. 19),
88. 56, 57 & 58-13 Eliz. c. 5-Preference-
Mortgage-Security for past debt-Fresh ad-
vances-Liens on Wool Act (11 Vic. No. 4.] G.
& Co. made advances from time to time to B. (a
grazier), on the security of stock mortgages in
the usual form, covering stock in his possession.
In June, 1888, the debt due to G. & Co. was
5474., for which they had security over stock
worth 66371. 10s., and if according to G. & Co.'s
contention the mortgages covered after-acquired
property, the security was worth 96751. G. &
Co. then advanced 27001. more, and in order to
secure that amount a fresh mortgage was offered
over 7500 sheep, but instead of adopting that
course G. & Co. cancelled the existing mortgages
and took one mortgage over those 7500 sheep
and all the other stock which came within the
other mortgages as a security for the 2700l. to
be advanced and the sum of 5474l. already due
to them. In March, 1889, B. became bankrupt,
and the official assignee of his estate applied for
an order declaring this mortgage void-1. |
Under sec. 56 of the Bankruptcy Act. 2. As
being a fraudulent preference. 3. Under 13
Eliz. c. 5. 4. As being a fraud on the policy of
the Bankruptcy Act. Manning, J., found that
the transaction was not fraudulent, and was a
present advance for the purpose of enabling B.
to carry on his business, and held, that as the
giving of the mortgage was not fraudulent, and
not in itself an act of bankruptcy, and as it was
given before the sequestration order had been
made, and G. & Co. having no notice of an
available act of bankruptcy, it could not be
impeached under the Bankruptcy Act. And
also held, that the mortgage was not void under
13 Eliz. c. 5, as there was no intention on the part
of either B. or G. & Co. to defeat or delay his
creditors. Semble, that a mortgage under the
Liens on Wool Act (11 Vic. No. 4) does not cover
after acquired property. Held on appeal, that
the giving of the mortgage did not appear to the
Court to be a preference, inasmuch as in
bankruptcy, as in equity, a mortgagee who has
several mortgages over several properties has
the right to treat them as one mortgage, and
cannot be compelled to allow one to be redeemed
unless all are redeemed, and that therefore by
taking this mortgage G. & Co. had got the same

- 51

5.- -Insolvency—5 Vic. No. 17, ss 4 & 8—
Assignment of estate to trustees, and subsequent
sequestration-Mortgage in pursuance of previous
promise.]-P. assigned his estate to trustees for
the benefit of his creditors, and the deed of
assignment did not contain the ship Emma
Pyers, she having been mortgaged by P. to S.,
and seized prior to the deed of assignment.
The trustees, under that deed, sequestrated the
estate, and the official assignee brought an
action against S. to recover the value of the
ship. It was contended, on behalf of S., that
the only estate which vested in the official
assignee was the estate held by the trustees
under the deed of assignment, and not P.'s
estate, and that, as the property in the ship
never vested in the trustees, it did not vest in
the official assignee. Held, that it was P.'s
estate which the official assignee took. The
mortgage of the ship was given to S. at a time
when P. was insolvent, but according to the
evidence of P. and S., it was given in pursuance
of a promise made at a time when P. was sol-
vent. Held, that as there was this direct
evidence as to the promise, though the circum-
stances were somewhat suspicious, the Court
was bound to give effect to the agreement, as
the carrying out of the agreement had not been
purposely kept back in order to injure the other
creditors. MORRIS v. SOLLING -

247

6. Insolvency-5 Vic. No. 17, s. 8-25 Vic.
No. 8, ss. 1 & 2-Meaning of insolvent "
Knowledge.] In an action brought by the
official assignee of B.'s estate against the National
Bank of Australasia to recover a certain sum of
money paid by B. to the bank at a time when
it was admitted that B. was insolvent, the
manager of the bank swore that he did not
know that B. was insolvent. Held, that as it
was shewn that there was the existence and the
knowledge of a state of facts from which any
ordinary intelligent man of business would have
reasonably inferred that B. was not in a position
to meet his current liabilities, it must be assumed
that the manager of the bank knew that B. was
insolvent within the meaning of 25 Vic. No. 8,
s. 2. The payment to the bank had been made
to pay off an overdraft which was guaranteed
by D., and the guarantee was returned to D.
It was contended that the payment could not
be treated as a preferential payment, but as a
payment on D.'s behalf. Held, that in no sense
could the money be said to have been paid on
D.'s behalf. MORRIS v. NATIONAL BANK OF
AUSTRALASIA
28

7. Insolvency Acts, 5 Vic. No. 17,
88. 53, 54-7 Vic. No. 19, 88. 16, 20-Title by
possession as against official assignee-Presump
tion that certificate has been presented for
confirmation.] The plaintiff was in exclusive
possession of certain land from 1837 to 1869.
In 1842 she was insolvent, and obtained her
certificate in 1844. Held, that, by 20 years'
possession since she obtained her certificate, she
had acquired a good title as against the official
assignee. The plaintiff, who was insolvent in
1842, was proved to have been in possession of
her certificate in 1844. Held, that it must be
presumed that such certificate had been properly
presented to, and allowed by the Court, in
accordance with 7 Vic. No. 19, s. 20. MARTIN
v. PHILLIPS

BILL OF LADING-See SHIPPING.

481

2.- -Companies Act (37 Vic. No. 19), s. 113—
Arbitration.]-Where an arbitration having
taken place, one of the parties being a company,
it appeared that the arbitrators had not sub-
scribed to the declaration required by s. 113 of
the Companies Act, held, that as there was
nothing expressly to exclude the Companies
Act, and s. 113 not having been complied with,
the award made by the arbitrators must be set
aside. In re AN ARBITRATION BETWEEN THE
TRADES AND INDUSTRIAL HALL AND LITERARY
INSTITUTE ASSOCIATION OF SYDNEY, Limited,
and JOHN MURRAY & PATRICK LENEHAN - 36

CONFLICT OF LAWS-Lease of land
in foreign country-Lex loci contractus-Lex loci
rei sita.]-The plaintiffs leased, by a deed made
in N.S.W., certain lands situated in Fiji to the
defendant for twenty-one years. Both plaintiffs
and defendant were resident and domiciled in
NS.W. By the law of Fiji no lease for more
than a year is valid unless registered. This
lease was not registered. The plaintiffs sued
on a covenant in the lease to pay rent. Held,
that the lease was governed by the lex loci rei
site, and being therefore void for non-registra-
tion, the plaintiffs could not recover on the
covenant, since the covenant could not be
separated from the rest of the lease. JOHNSON

v. BILLYARD

319

-

CONTRACT – Illegal contract-Wager ·
Liability of stakeholder-Revocation of stake-
holder's authority.] A boat race was rowed for
2007. a side, and the defendant held the stakes.
The umpire decided the race against the plaintiff
on a foul. The day after the race the defendant
received a notice from the plaintiff in the
following terms: "I hereby protest against
your paying over the stakes for the race I
rowed to-day with C. Neilson," and the notice
proceeded to set out the reasons for which the
plaintiff claimed the stakes. After the receipt
of this protest the defendant paid over the
stakes to Neilson. Held, that the notice,
although in it the plaintiff claimed the whole
stakes as winner of the race, was a sufficient

RUPTCY.

CARRIAGES REGULATION ACT
OF 1884-See MASTER AND SERVANT, 3.

COMPANY-Proof of incorporation-Onus
of proof-Retainer of solicitor-Companies Act,
37 Vic. No. 19, 88. 17, 68.]—Where defendants
sued as a company have carried on business and
held themselves out as a limited company, that
is prima facie evidence that they are a company
limited under the Companies Act, and the onus
lies on them of proving the contrary. The
retainer of a solicitor by a trading company
need not, by the 37 Vic. No. 19, s. 68 (3), be

under seal.. GALE V. THE WINGELLO COAL
MINING CO.

79

over the plaintiff's money, and that the defen-
dant was liable in an action to recover the
amount of plaintiff's stake. MCLEAN v. HILL

2. -Illegal contract-Public policy-Elec-
toral Act, 44 Vic. No. 13.] The plaintiff and
one D. were candidates for election to Parlia-

ment in the same interest, and in consideration
that the plaintiff would retire in favour of and
would support D. in his candidature, the
defendant, who was president of a political
association, agreed to pay the plaintiff the
amount of his expenses already incurred. Held,
that the contract was opposed to the spirit of
the Electoral Act, and therefore void as against
public policy. TAYLOR v. TAYLOR -

3- Damages- See DAMAGES.

323

4.- - Masters and servants See MASTER AND
SERVANT.

across

-

COUNTRY TOWNS WATER AND
SEWERAGE ACT-See MUNICIPALITIES.
CRIMINAL LAW-Larceny - Animus
furandi-Taking article with intention of keeping
it as security for a debt-Claim of right The
proper questions to be left to the jury.] The
prisoner came to the prosecutor and demanded
a pound which he had lent him the day before.
On the prosecutor saying he had not got a
pound the prisoner drew a knife and placed it
the prosecutor's throat, saying, "I'll
cut your throat if you do not give me the
pound." He then snatched the prosecutor's
watch and said, "I've got your watch now; you
give me the pound and I'll give you the watch."
The watch was afterwards found by a constable
in the prisoner's box. Three questions were left
to the jury:-(1.) Did the accused take the
watch, intending at the time he took it to keep
it permanently as compensation for the pound?
(2.) Did he take the watch intending to keep it
only for a short time in the expectation that the
prosecutor would be induced thereby to pay the
pound, and not with any intention of keeping
it permanently? (3.) Did he take it in order to
induce the prosecutor to pay, but intending to
keep it permanently if he did not pay? The
jury answered the first and second questions in
the negative, the third in the affirmative, and
convicted the prisoner. Held, that upon these
findings the conviction must be quashed. The
proper question to leave to the jury was whether
the prisoner took the watch in the honest belief
that he was entitled to do so to secure his
repayment. REGINA v. GEORGE
375

2. -Criminal Law Amendment Act, 8. 423
-Bigamy-American decree of divorce--16 Vic.
No. 14, s. 7-Domicil-Validity of foreign
marriage-Onus of proof-Foreign certificate of
marriage-Wrongful admission of immaterial
evidence.] The prisoner, who was convicted of
bigamy, put in at the trial under 16 Vic. No.
14, s. 7, a decree of divorce on the ground of
desertion, obtained against his wife in New
Mexico, U.S. The decree alleged that the
prisoner had satisfied the Court that he had
resided in New Mexico for the six months
preceding the decree. The evidence at the trial
shewed that the prisoner had not so resided.
Held, that in the absence of proof that the
prisoner was domiciled in New Mexico, this
Court could not recognise the said decree as
annulling a marriage contracted in N.S. W., and
that the statement in the decree that the
prisoner had resided there six months was no
evidence to go to a jury of the acquisition of, or
of the intention to acquire, a New Mexican
domicil. As to the second marriage, the
prisoner admitted in a number of letters which
were put in evidence that a marriage de facto
and de jure had taken place in America. Held,
that the prisoner must be taken to have ad-
mitted a marriage, valid according to the law of
the country where it took place, and that the

onus of impugning its validity lay on him.
After the second marriage had been proved by
the evidence of the second wife, and the
admissions of the prisoner in the said letters,
the Crown put in a copy of the marriage
license and of the marriage certificate obtained
from America, and verified as true copies by a
series of certificates, which were also put in.
Held, that in the absence of any evidence as to
the American law of the registration of
marriages and of the admissibility of such
documents in evidence in American Courts, the
said documents were wrongly admitted. But held
(WINDEYER, J., dissentiente), that the marriage
having been otherwise conclusively proved,
did not avoid the conviction. Per THE CHIEF
the improper reception of these documents
JUSTICE: The marriage having been already
conclusively proved, the admission of unneces-
sary, though immaterial, evidence caused the
prisoner no substantial wrong, and therefore,
under s. 423, the conviction ought not to be
evidence has been admitted, it is not the
avoided. Per WINDEYER, J.: Where illegal
intention of s 423 that the Court should take
upon itself to say that no substantial wrong has
thereby been done to the prisoner. Per INNES,
J.: The evidence, exclusive of that wrongly
admitted, was so conclusive and indisputable
that any other finding by the jury would have
been demonstrably wrong, and therefore,
irrespective of s. 423, the conviction ought not
to be disturbed. R. v. M'LEOD

218

3. Criminal Law Amendment Act (46
Vic. No. 17), ss. 22, 24, 429, 458-Maliciously
wounding-Escape-Arrest without warrant—
Resistance to illegal arrest.] The prisoner, a
convicted felon, escaped from gaol and eluded
pursuit for two months, when he was arrested
by a constable, without a warrant, on a charge
of escaping from gaol. The prisoner seized the
constable's revolver, and having shot him in the
head and struck him several blows with the
butt, escaped from him. On his trial for
maliciously wounding, with intent to do grievous
bodily harm, the Judge told the jury that the
arrest, being without a warrant, was illegal ;
but that though a man improperly deprived of
liberty may take all reasonable means to recover
his liberty, he is not justified in using a deadly
weapon or inflicting grievous bodily harm
The jury found the prisoner guilty of maliciously
wounding, under s. 24, and that he had used no
more force than was necessary for his escape.
Held, first, that an illegal arrest being an
assault, the person arrested may resist with a
corresponding amount of force to that used in
such assault, but that a deadly weapon may not
be used, nor grievous bodily injury inflicted
upon the officer making the arrest. His
Honour therefore rightly directed the jury that
the prisoner was not justified, even on the
assumption that the arrest was illegal, in using
the amount of violence that he did, and the
verdict of the jury, irrespective of their answer
to the special question asked of them, was
correct. The case of Woo Tin (9 N.S.W. L.R.
493) distinguished. Secondly (FOSTER, J.,