9. Change of venue-Power of Judge in
Chambers to make order-Yalidity of Rules of
Court-Ultra vires-Common Law Procedure
Act. 1899 No. 21, ss. 108, 268-RR.G. 116, 117,
of Dec. 22nd, 1902.-Rules 116, 117 give power
to a Judge in Chambers to make orders for change
of venue, and.such rules are intra vires s. 268 of
the C. L. P. Act, 1899. Ib.

3. -Common Law Procedure Act, 1899 No. were resident in the circuit town, on the ground
21, s. 16-Writ of summons-Service-Foreign that as the plaintiff's reputation was involved he
corporation--Business domicil.-Defendants, an would be prejudiced by the delay. WILLS C.
American company, appointed G. & Co., who | GARRETT, 22 W.N. 59.
carried on business in Australia as general
merchants and importers, their sole agents for the
sale of their goods in Australia, allowing them a
commission. But all goods ordered by G. & Co.
were paid for by G. & Co. before shipment, and
imported and sold by G. & Co. as their own goods,
G. & Co. taking the benefit of any profit over and
above their commission, and bearing any loss.
This was the general course of business, but two
years before writ issued the defendants had,
through G. & Co. as their agents, made four or five
contracts for the sale of large consignments of their
goods to traders in N.S. W., for breach of one of
which contracts the present action was brought.
Held, that the defendants had not a business
domicil in N.S. W. and service of the writ on
G. & Co. was set aside. DENHAM BROTHERS V.
ARMOUR & COMPANY, 22 W.N. 142.

4. Two similar applications-Res judicata-
Application for discovery before and after decla-
ration.-An application for discovery was made in
a libel action before declaration, and refused on the
ground of insufficient material. After issue joined
another application was made for discovery for the
purposes of evidence, and dismissed on the ground
that one application having been refused, a second
application cannot be entertained. Held, that the
two applications were not the same and that the
principle of Thompson v. Southern Coal Co. (15
N.S.W.L.R. 166; 10 W.N. 214) did not therefore
apply. MACINTOSH v. DUN, 5 S. R. 99; 22 W. N. 19.

5. -Appeal from Judge in Chambers-Co-
ordinate jurisdiction-Matters of procedure.-
Where co-ordinate jurisdiction is given to the
Court and a Judge, as in s. 102 of the C.L. P. Act,
and the party applies to a Judge, an appeal lies to
the Court if the matter is one of practice or
procedure. Ib.

6. Appeal-Money paid to party successful
below-Refund. Where money had been paid out
of the District Court to the party successful, the
Supreme Court, having reversed the decision,
ordered the money to be refunded. COGHLAN v.
ALEXANDER, 5 S. R. 441; 22 W.N. 128.

7. Jury Act, 1901 No. 67, s. 31-Libel
action-Application for a special jury of 12-
Position of parties-Nature of action-Public
importance. In an action for libel brought by a
firm which had borne a high reputation and had
been established for 50 years to recover damages
against the defendants who were carrying on the
business of trade protection, the Full Court refused
an application for a special jury of 12. MACINTOSH
v. DUN, 22 W.N. 85.

8. -Change of venue-Action for slander-
Refusal to make order delaying trial of action.
-The Court refused an application by a defendant
in a slander action for change of venue to a Circuit
Court where the trial of the action would be de-
layed, although the parties and their witnesses

10.--Change of venue-Nature of evidence to
be given by witnesses not stated.—It is not
necessary that the affidavits in support of the
application should disclose the nature of the
defence or the nature of the evidence the wit-
nesses, proposed to be called, can give. Beirne v.
Pearse (15 W. N. 53) and Dillon v. Quinlan (16
W.N. 69) not followed. CHURCHILL v. COLLMAN,
22 W.N. 218.

11. Costs-Taxation-Special Case-Fees
to qualifying witnesses-Action at law-Stamp
Duties Act, 1898 No. 27, s. 18-Reg.-Gen. 408, 420,
of Dec. 22, 1902.-The three scales of costs es-
tablished by r. 408 apply only to actions at law.
"Actions" in r. 420 means actions other than
actions at law and "the scale of fees and allow-
ances in that rule is the scale in use prior to
Sept. 1st, 1898. A case stated under s. 18 of the
Stamp Duties Act, 1898, is not an action at law
and the costs of qualifying witnesses cannot be
allowed on taxation. ROBERTSON v. COMMISSIONER
OF STAMP DUTIES, 5 S. R. 622; 22 W.N. 200.

12. -Summons to set aside judgment — No
allegation that judgment had been signed—R.G.
322 of December 22nd, 1902.-A summons to set
aside a judgment was dismissed on the ground that
the affidavit in support of the summons did not
state that judgment had been signed. WEBER,
LOHMANN & Co. v. TURNER, 22 W.N. 52.

13.- -Interlocutory judgment-Setting aside
notice of appeal to High Court Judiciary
Act, 1903 No. 6, ss. 35, 39-High Court
Procedure Act, 1903 No. 7- R. 9 of
Part 2, s. 4.-R. 9 of Part 2, s. 4, of the
High Court Rules does not give jurisdiction to set
aside a notice of appeal from an interlocutory judg
ment of the Supreme Court where leave to appeal
can be granted by either the Supreme Court or the
High Court. The rule only applies to cases where
the High Court has exclusive power to grant leave
to appeal. A rule absolute setting aside a non-
suit and granting a new trial is an interlocutory
judgment. MCKEON v. MILLER, 22 W.N. 22.

14. -Common Law Procedure Act, 1899 No.
21, s. 117-Remitting issues to District Court.—
In an action in the District Court the plaintiff was
non-suited, the Judge stating that he was unable to
arrive at a decision without further evidence. The
plaintiff then sued the defendant in the Supreme
Court for the same cause of action. An applica
tion by the defendant to have the issues remitted

VOL. V.]

INDEX.

for trial to the District Court in which the previous
action had been brought was refused. JOALLAH
SINGH v. MORTON, 22 W.N. 32.

SULLIVAN v. ENGLISH, SCOTTISH AND AUSTRALIAN
BANK, 5 S. R. 52; 22 W.N. 2.

2.---Service-Rule 350-The "Two Guineas"
15.-District Courts Amendment Act, 1905 Rule-Tender of costs to respondent No tender
No. 22, s. 27—Staying proceedings-Action of Costs of appearance to ask for costs.-Where
tort-Security for costs-Form of affidavit. It a respondent appears on the hearing of a petition,
is sufficient if the affidavit in support states facts motion, or summons, merely to ask for his costs
of which the defendant has been informed, from on the ground that no tender of two guineas was
which the inference may be drawn that the plain-made to him under Rule 350, a sum not exceeding
tiff has no visible means of paying costs if he loses. two guineas will be allowed for his costs in addition
SIMOUNDS V. MAYBURY, 22 W.N. 217,
to the two guineas which should have been tendered
to him in the first instance. PERMANENT TRUSTEE

16.—Prohibition--Affidavit in support--Jurat.
-The jurat of an affidavit in support of a prohibi-
tion was defective, in that it omitted to state the
place where the affidavit was sworn. The Court
allowed an amendment. Ex parte ESLICK, 5 S. R.
470; 22 W.N. 148.

17. Stay of proceedings-Jurisdiction of
Court to grant.—The Court has inherent jurisdic-
tion to stay the proceedings in an action to prevent
injustice being done. FERRIS V. LAMBTON, 22

W.N. 56.

COMPANY . MARTIN, 22 W.N. 47.

3.- Non-acceptance of offer made in the
Statement of Defence-Hearing of suit-Continu-
ing offer.-Where a plaintiff, disregarding an offer
made in the statement of defence, brought a suit
to a hearing and failed, the Court refused to make
a decree in terms of the offer contained in the
statement of defence. LANGLEY. FOSTER, 5 S. R.
678; 22 W.N. 214.

4.

Originating summons-Mortgage-Fore-
closure Statute of Frauds Necessity of
pleading the statute. In taking accounts in the
18. Stay of proceedings-Final judgment-Master's office any party who intends to rely upon
Taxation of costs-Legal Practitioners Act, the Statute of Frauds as a defence to the claim
1898 No. 22, s. 39.-A stay of proceedings will
must give notice in writing by letter or affidavit
not be granted after judgment has been signed, in
or by mention in the falsifications of the ground
pursuance of an order made under s. 39 of the Legal of defence, in order that the other party may
Practitioners Act, 1898, for costs due under the have an opportunity of being prepared with evi-
certificate of a taxing officer. In re FREEHILL, 22 dence in reply. MOORE . LEAN, 22 W. N. 105.

W.N. 98.

19.- -Stay of proceedings Action against
public body for slander uttered by official. See
DEFAMATION.

5 -Service out of the jurisdiction-Evasion
of personal service-Substituted service Order
nunc pro tunc allowing substituted service as
effected-Equity Act, 1901 No. 24, s. 33--Rule
41.-By an order made nunc pro tune, on a motion
-Special case-Prohibition granted in for a decree in default of appearance, substituted
the same matter. See JUSTICES.

20.

21.

service of a Statement of Claim as already effected
out of the jurisdiction was allowed in a case where

Special case-Reference to Court by it was clear that the defendant had evaded per-
Judge in Chambers. See JUSTICES.

sonal service. MUNICIPAL DISTRICT OF RYDE .
BELL, 22 W. N. 95.

6.Appeal to High Court-Stay of execution
-Appeal only from portion of decree-Stay of
No. 6, s. 37-High Court Procedure Act, 1903 No.
execution as to the whole Judiciary Act, 1903

7, ss. 37, 38-Schedule Part II. Sec. I. Rule 10-
Schedule Part II. Sec. IV. Rule 19.-An appeal to
the High Court from any part of a decree of a
State Court suspends the execution of the whole
decree, including the part against which there is
no appeal; the Court appealed from having power
to allow execution to proceed on security being
given to abide the decision of the High Court.
BENNETT V. BROWNE, 5 S. R. 541; 22 W.N. 185.

7. Decree of High Court-Submission to in-
demnity contained in decree--Carrying out decree
of High Court-Equitable set-off-Excessive
execution-Injunction - Reference to enquire
amount due under submission - Stay.- By a
decree, dated the 27th April, 1904, incorporating a
submission on the plaintiff's part to indemnity the
defendant company against any loss or liability it

INDEX.

on

The

into

might sustain or incur to any person other than the
plaintiff by reason of obedience to the decree, the
High Court ordered the defendant company (inter
alia) to pay to the plaintiff the amount, when ascer-
tained, of the dividends paid to other persons
upon certain shares since a certain date. The
decree of the High Court had been made an
order of the State Court. The amount of the
above dividends having been ascertained
enquiry, the plaintiff issued execution.
defendant company paid the amount
Court and moved for an injunction to restrain
execution. Held, that the submission in the decree
amounted to an undertaking by or condition im-
posed on the plaintiff to pay to the defendant
company any loss or liability which the latter had
incurred up to the date when the amount due to the
plaintiff was ascertained, that the plaintiff was only
entitled to the difference, if any, between the
amounts due to and by him respectively, and that
the submission could be enforced in the present
suit; and that the defendant company was en-
titled to the injunction until the amount of the loss
sustained or liabilities incurred by the company up
to the date of the issue of the writ of execution
had been ascertained. MCLAUGHLIN v. VALE OF
CLWYDD COAL MINING CO., 5 S. R. 590; 22 W.N.
216.

PRETENCED TITLES.

Pretenced Titles Act, 32 Henry VIII. C.
9, s. 2-Official Assignee-Conveyance by
7 Vic. No. 19, s. 15-8 Vic. No. 15, s. 2-10 Vic.
No. 14, s. 3-Bankruptcy Act, 1898 No. 25,
ss. 67, 68-The Pretenced Titles Act, 32 Henry
VIII. c. 9, s. 2, applies to conveyances made
by official assignees in their official capacity.
The effect of 7 Vic. No. 19, s. 15, 8 Vic. No.

[S. R.

the 24 hours allowed by the Customs Regulations
Act, 1879, so as to avoid the payment of duty
which came into force before the expiration of that
time. The appellants, who sued to recover the
amount of the duty so paid, had not requested that
the clearing should be expedited, though the cir
cumstances were not within the contemplation
of the contract, and were rightly non-suited.
COMMONWEALTH PORTLAND Cement Co. v. WEBER,
LOHMANN & Co., 5 S. R. 136.

2. Contract-Sale of goods-Unauthorised
offer--Offer adopted by undisclosed principal be-
fore acceptance-Right to sue on contract.
Where a person made an offer in his own name to
enter into a contract with the Government to sell a
ing) held that that offer could not be adopted by a
certain article, The Full Court (Cohen, J., dissent-
third person so as to render him able to sue or
liable to be sued on the contract founded upon
that offer, the offer not having been authorised by
him. MOONEY. WILLIAMS, 5 S. R. 304; 22
W.N. 86.

2.--Attesting witnesses-Rules 9 and 15.-To
obtain a grant of probate an affidavit from an at-
testing witness must be produced (Rule 9) or it
must be shown either that both the attesting wit-
nesses are dead or that from other circumstances
no affidavit can be obtained from either of them.
In the Will of Walsh (9 W.N. 123), not followed.
In the Will of MOORE, 5 S. R. 380; 22 W.N. 112.

3.- -Administration bond - Reduction of

-In cases where the real estate of an intestate is
not to be sold at once the bond to be entered into

5, s. 2, 10 Vic. No. 14, s. 3 is merely to provide amount-Application for leave to sell real estate.
that a purchaser may deal with the official
assignee as if the latter were the beneficial owner
of the bankrupt's property. They do not render
valid a conveyance by the official assignee which
would have been invalid if made by a beneficial
owner. WOODS 2. WILLIAMS, 5 S. R. 212; 22
W.N. 65.

by the administrator may be reduced so as to cover
the amount of the personal estate. In all applica-
tions for leave to sell, mortgage, or lease real estate
an affidavit must be filed showing what bond was
given by the applicant and whether such bond is in
full force or not. In the Estate of Rock, 22 W. N.
216.

PRINCIPAL AND AGENT.
Construction of contract-Obligation of agent
to pass goods through the custom house-Action
for not expediting clearance so as to avoid a
newly imposed duty. Where the respondents con-
tracted for certain fixed charges to lighter and load
on railway trucks the machinery of the appellants
brought by ship, and also to pass it through the
Customs without extra charge--Held, that this
obligation did not involve the duty of expediting
the clearance of the appellant's goods in less than

PROHIBITION.

Infant Protection Act, 1904 No. 27, ss.
8, 9-Complaint made without corroboration-
Defendant pleading to information -Waiver of
irregularity. The defendant appeared at the
hearing of an information under s. 9 of the Infant
Protection Act, 1904, and consented to an adjourn
ment. He subsequently appeared and pleaded to
the information and then took objection to the juris-

-1902 No. 30, ss. 82, 88-Sale of milk
rtificate of analyst-Evidence of adultera-
n.-A certificate of an analyst under s. 82 of the
blic Health Act, 1902, stating that milk is adul-
rated by the addition of water is evidence of
lulteration. Ex parte RIGBY, 5 S. R. 317; 22

7.N. 60.

3.

-Public Health Act, 1902 No. 30, s. 82-
vidence Act, 1898 No. 11, s. 15-Certificate of
nalysis under Public Health Act-Evidence of
rm prescribed-Admissibility.--A certificate of
analyst under s. 82 of the Public Health Act is
dmissible under s. 15 of the Evidence Act with
ut proof that it is in the form prescribed by the
Public Health Act.
Ib.

PUBLIC SERVICE.

Public Service Act, 1902 No. 31, s. 15 (5)
Public Service (Superannuation) Act, 1899
No. 55, s. 2-Superannuation allowance-Per-
son whose services are dispensed with Election
to retire. A public servant who has elected to
retire under s. 15 (5) of the Public Service Act, on
the reduction of his salary, is not an officer whose
services have been dispensed with within the
meaning of 1899 No. 55, s. 2. DETTMAN v.
WILLIAMS, 5 S. R. 265; 22 W.N. 81.

2. Superannuation allowance Pension-
Broken service - Dismissal for misconduct-
Condonation.-Sect. 55 of the Civil Service Act,
1884, has no application to persons who on the 1st
January, 1885, were only in temporary employ in
the service of the Crown. Sect. 48 of the Civil
Service Act, 1884, is entirely prospective; the only
provision for reckoning and making service prior
to the 1st January, 1885, available for the purpose
of calculating a superannuation allowance is that
contained in s. 55. The only officers of the civil
service entitled under s. 55 of the Civil Service Act,
1884, to a superannuation allowance in respect of
service prior to the 1st January, 1885, are the
officers entitled to retire and liable to be retired from
the civil service under ss. 43, 44, 45, and 46. The
plaintiff was a civil servant in permanent employ-
ment from the 1st April, 1861, to the 2nd September,
1879, when he was dismissed for misconduct. On the
4th March, 1884, he was temporarily re-employed,
until the 1st May, 1885, when he became a perma-
nent officer and continued so to be until 1901, when
he was compulsorily retired under the Public Ser-
vice Act, 1895. He claimed that in the computation
of his superannuation allowance his services prior
to 1879 should be included. Held, on appeal,
reversing the decision of A. H. Simpson, C.J. in
Eq., that the plaintiff was not entitled to any super-
annuation allowance in respect to his services prior
HALES v. MILLER, 5 S. R. 163; 22 W.N.

to 1879.

46.

3. -59 Vic. No. 25, ss. 8, 60-Civil Service Act,
48 Vic. No 24, ss. 46, 48-Civil servants-
Abolition of office-Transfer of duties-Retire-
ment of officers in excess-Pension.-An office
cannot be said to be abolished within the meaning
of s. 46 of the Civil Service Act unless the duties
pertaining to that office are also abolished.
GREVILLE v. WILLIAMS, 5 S R. 600 ; 22 W. N. 209.

--

59 Vic. No. 25, s. 10-Bailiffs' fees Statutory
4.- 22 Vic. No. 18, s. 39-Public Service Act,
Waiver.
right
The plaintiff was appointed
before 1896 a District Court bailiff under 22 Vic.
No. 18. For 6 years he accepted without protest
an increased salary and diminished fees as fixed by
the Public Service Board. In 1902 he retired
voluntarily on a pension. Plaintiff then brought
this action against the Crown claiming the full
amount of the 'fees he was entitled to under the
District Courts Act. He sought to retain the
increased salary. Held, that he had waived his
statutory rights by acquiescing in the acts of the
Public Service Board, and that a verdict should be
entered for the defendant. WITHERS v. WILLIAMS,

4.-Nightsoil removal. See MUNICIPALITIES. 5 S.R. 700; 22 W.N. 204.

d

of certain minerals under land resumed for railway
purposes. The claim being referred to arbitration
the plaintiffs were awarded £18,450. The defen-
dants being dissatisfied with the award compelled
the plaintiffs, under s. 116, to bring an action,
when the plaintiffs recovered verdict for £17,609,
being less by £841 than the award of the arbitra-
Held, that by the unambiguous language
of the action and of the arbitration, notwithstand-
of s. 116 the plaintiffs must bear all the costs both

tors.

PUBLIC WORKS ACT.
Resumption Payment into Court-Re-invest-
ment in land--Proceedings in Master's office-
Parties Remaindermen- Costs of remaindermen
-Public Works Act, 1900 No. 26, ss. 47, 57.—
The Constructing Authority is not liable for the
costs occasioned by the presence of remaindermen
in the Master's office on applications for the
re-investment in land of compensation moneys
duly paid into Court under the Public Works Act,
1900, s. 47. In a case, however, where the remaining the inadequate tender made by the defendants.
dermen attended on an application for the approval PACIFIC CO-OPERATIVE STEAM COAL Co. v. KAIL-
of the Master of a specific re-investment and their
WAY COMMISSIONERS, 5 S. R. 87.
presence was of material and substantial benefit to
the fund, their costs were ordered to come out of
the fund. Re RAPHAEL, 5 S. R. 12; 22 W.N. 17.

2 Lands belonging to lunatic not so found
-Subsequent declaration under Lunacy Act,
1898 No. 45, s. 103-Payment to managers-
Payment into Court by managers Jurisdiction
of Court over costs under s. 128 of Public Works
Act, 1900-Costs-Public Works Act, 1900 No. 26,
ss. 46, 47, 51, 57, 127, 128, 129.—It is only when the
moneys payable for lands compulsorily resumed by
the Constructing Authority under s. 147 (1) of the
Public Works Act, 1900, are paid into Court either
by the Constructing Authority or with its consent,
that the Constructing Authority is liable for the
costs mentioned in s. 57. No costs are payable by
the Constructing Authority under s. 128 of the
Public Works Act, 1900, in cases where no convey-
ance has been executed under s. 127. The Court of
Equity has no jurisdiction over the costs mentioned
in s. 128 of the Public Works Act, 1900; the Master
in Equity taxes such costs, not as an officer of the
Court, but by virtue of the statutory authority
conferred on him under s. 128. The Minister for
Works having by Gazette notification compul-
sorily resumed lands belonging to a lunatic not so
found, agreed with the managers of the lunatic,
who were appointed under s. 103 of the Lunacy
Act, 1898, as to the amount of compensation pay-
able, but refused to pay the compensation moneys
into Court and insisted on paying them to the
managers. The managers were authorised by the
Court, sitting in Lunacy and in Equity, to accept
the moneys on condition of paying them into the
Equity Court. The managers, having accepted the
moneys, paid them into Court, purporting to do so
under the Public Works Act, 1900, and presented
the usual petition under that Act for the re-invest-
ment in land of the said moneys. Held, affirming
the decision of A. H. Simpson, C.J. in Eq., that
the Minister was not liable for the costs mentioned
in s. 57 of the Public Works Act, 1900. But held,
reversing the decision of A. H. Simpson, C.J. in
Eq., that the Court had no jurisdiction to order the
Minister to pay the costs mentioned in s. 128 of the
Act, nor to declare what costs, if any, were
payable by the Minister under that section.
Per Cohen, J. Sect. 47 of the Public Works Act,
1900, has no application to a case where lands are
purchased or taken from a lunatic or idiot, not so
found. Re MCMILLAN, 5 S.R. 350; 22 W.N. 16,

75.

3. -1900 No. 26, s. 116-Costs of action
Arbitration and award.--The defendants tendered
to the plaintiffs £2000 as compensation in respect

4. Resumption Payment into Court-
Payment out - Petition Encumbrancer
Encumbrancer's costs Equity Rule 350-
No. 26, SS.

---

Works Act, 1900

Public
47, 57 Practice. On a petition for pay-
ment out of Court of moneys paid in by the
Constructing Authority under s. 47 of the Public
Works Act, 1900, the liability of the Constructing
Authority as regards the costs of an incumbrancer
of a dowress were limited to two guineas and the
costs of an affidavit of service. In re Halstead
United Charities (L. R. 20 Eq. 48) and In re
Artizans and Labourers' Improvement Act, 1875;
Ex parte Jones (14 Ch. D. 624) followed.
BLAIR, 22 W. N. 97.

Re