and the deposit with that department was as effectual as if the deeds had been deposited with the bank. Exparte Coming, 9 Vesey 117. The registration of the fifa did not affect the equity that subsisted at the time the fi fa was lodged. By section 139 of the Transfer of Land Act 1890 a debtor is prevented from doing any act after the fi fa is lodged, prejudicial to the claim of the judgment creditor; In re Shears, 17 V.L.R., 320. But that section does not prevent an equity previously existing from coming into effect after that fi fa is lodged.

Mr. Kilpatrick in reply.

HOLROYD, J., in giving judgment said :-Some of the questions argued raise points of considerable nicety, and I have been a good deal pressed upon the last argument that was urged by the plaintiffs' counsel, viz., that the lease should be treated as being held for the plaintiff so soon as it was registered and therefore that it should be considered as if there had been an actual deposit of the only title deed that existed at that date. Upon the whole I find myself unable to accede to that argument. The document upon which the plaintiff relies is a mere order, and nothing more, to hand over to the Colonial Bank on their order the crown grant or crown lease when issued, of certain land to which the plaintiff could be, or was expected to become, entitled at a subsequent period. I think there was no actual deposit of any deed whatever until the bank got the lease and when the lease actually got into the hands of the bank it was then too late to benefit the bank. A copy of the writ of fieri facias together with the statement required by the Act had been previously served upon the Registrar of Titles and had been duly registered. As I have already intimated, in my opinion the service of the copy writ of fi fa. accompanied by the necessary statement binds the land at any rate at the

latest from the time of the registration of that copy writ; and that no equities that subsequently intervene, whether incohate or not and which came into existence after that date, can possibly have priority over a purchaser at a sheriff's sale under that writ, provided that the sale takes place and the transfer is duly executed and lodged for registration within the proper time. In laying down that general rule I am not attempting to embrace within it any case which may depend upon previous notice to the parties in any way. I do not wish to give any opinion on that class of cases one way or the other. Other circumstances might possibly arise in which the general rule which I have enunciated might be affected by some notice or other. I cannot anticipate what cases may arise of that sort. Nothing of that kind occurs in this case, and it is not necessary to give any opinion thereon. There are only two things which can constitute a valid equitable mortgage. There must be either some memorandum in writing or there must be an actual deposit of title deeds. If there is only a memorandum in writing it need not be of a formal character but it must express so much as is necessary to indicate the actual agreement into which the parties have entered either to shew that there has been an agreement for the deposit of what are commonly called title deeds or their equivalent, or some agreement for the execu tion of an equitable mortgage. When the title deeds are actually deposited then you are at liberty to give parol evidence to show what the agreement was, although there was no memorandum in writing. In this case therefore I must hold that the bank has failed to sustain its claim against the defendant who is the purchaser at the sheriff's sale and I must therefore give judgment for the defendant with costs.

Solicitors, for plaintiff, Moule and Seddon; for defendant, F. G. Smith.

VICTORIA.

Accommodation - See Cheque. Watts v. Spain, 260. Accounts and EnquiriesSee Practice (Probate). Skrimpshire v. Melb. Benevolent Asylum, 251. Action, Notice of-See Railways Act 1890. Potter v. Vict. Rlys. Commissioners, 87, 187.

Action, Striking out

vexatious

See

Practice

See Pauper. Foran v. Derrick, 284 Administration (Probate). Administration and Probate Act 1890, sec. 19-Caveat-Probate jurisdiction of the Court-Supreme Court Act 1890, ss. 20, 21. Section 19 of the Administration and Probate Act 1890 does not cut down the probate jurisdiction of the Court conferred by sections 20 and 21 of the Supreme Court Act 1890. The neglect by the attorney under power of a foreign executor applying to have the foreign probate sealed, to file with the registrar of probates verified copies of the probate and the power of attorney, does not deprive the Court, in case a caveat has been lodged, of jurisdiction to grant a rule nisi or to make such rule absolute. The production and verification of such documents and the payment of the duty are only conditions precedent to the valid sealing of the probate, and not to the jurisdiction of the Court to deal with the caveat, and therefore, the Court may order the seal of the Court to be attached to the foreign

probate upon such conditions being complied with. In will of Bishop, 189.

-ss. 19, 29, 41, 42-45-CaveatSealing foreign probates or letters of administration. The limit of time after which no caveat can be lodged against sealing with the seal of the Supreme Court of Victoria probate or letters of administration granted in the United Kingdom or any of the Australasian colonies, is, in cases where no previous caveat has been lodged, the day on which application is made to the Registrar of Probates to affix the seal of the Court to the foreign probate or letters of adminis tration, and in cases where a previous caveat had been lodged the limit of time after which no caveat can be lodged is the day on which application is made to the Court for a rule nisi. In will of Bishop, 191.

-s. 23. The power given to the Court by section 23 of the Administration and Probate Act 1890 to direct questions of fact to be tried by a jury is a power given to the Court for its own information and assistance and may be exercised by the Court at its own absolute discretion and no right is expressly or impliedly conferred on any of the parties to claim or even apply for a jury to try questions of fact. The Court may receive suggestions from the parties at any time for a trial by jury, and the most convenient time for offering such suggestions is when the order nisi is returned, but the Court is not bound to accept such suggestions even if made by all the parties. In will of Sturrock, 29.

-sec. 97 (1). Probate Duty--Partnership assets in Victoria of deceased partner where domicile of partners

was foreign. Two partners domiciled in England carried on a business in Victoria. One of the partners died. On a case stated by the Master-inEquity for the opinion of the Supreme Court, held, that the partnership assets in Victoria of the deceased partner were liable to pay probate duty, and should therefore be inIcluded in the statement of the deceased's estate filed by the attorney under power of the executrix in the Master's office under s. 97 (II). of the Administration and Probate Act 1890. In re Falk, 108.

s. 112-Settlement Duty. Section 112 of the Administration and Probate Act 1890 provides that settlements made "before or in consideration of marriage" shall be exempt from duty: Held that the words "before or in consideration of marriage "must be read as equivalent to the words "settlements made in consideration of marriage either before or after marriage," and that, though this construction reduced the words" before or," to mere surplusage, this result was preferable to a construction which would deprive settlements made in consideration, but after marriage, of the protection of the section; or to that which would leave within that section a class of settlements antecedent to marriage incapable of clear definition. A settlor, prior to her marriage, which took place in October 1889, executed a settlement on the 26th September 1889 to which her intended husband and her trustees were also parties and which was expressed to be made in consideration of her intended marriage whereby certain property, real and personal, of the settlor was conveyed to trustees in

trust for the settlor for life and after

her death in trust for her two children by a former marriage or the survivor of them, to vest at twenty-one, or if they should both die before attaining that age the settlor was given a general power of appointment fover the property, and in default of appointment it was to go to her next-of-kin : Held that the trusts for the children of the former marriage were not within the marriage consideration although the general recital covered them; that the children were mere volunteers and that the provisions in their favour were not made for valuable consideration and as to the real estate comprised in the settlement could be avoided under 27 Eliz. by a subsequent conveyance to a purchaser, Held also that the settlement on the children, though made before and in contemplation of marriage was not in consideration of marriage and was, therefore, not within the exception contained in section 112 of the Administration and Probate Act 1890 and was therefore liable to duty. National Trustees &c. v. The Queen, 267. Administrator (Probate).

See Practice

-Power to lease-Sanction of Court. An administrator has power to grant a lease of the intestate estate. Where the proposed lease was for a term of five years with special conditions an application to the Court for its sanction was proper. Withers v. Withers, 273. Adverse

possession See Transfer of Land Act 1890. Bethune v. Porteous, 265.

Affidavit-See Practice. Mac Pherson v. Kerr, 215.

Affidavit sworn out of jurisdiction-See Practice. Howard v. Jones, 106.

After-acquired property-See Bill of Sale. Lyons v. Graham, 75. Alimony-See Marriage Act 1890. Stephen v. Stephen, 24. Ambiguity, latent-See Practice (Probate). In will of Maher, 12. Appeal- An appeal lies from an order of a Judge refusing an order nisi to review the decision of justices in Petty Sessions. Walker v. Russell, 286.

-Extension of time for leave to. See Practice. Wyburn v. City of Canterbury, 207.

-Time for, from order of Judge in Chambers. See Practice. Fitzgerald v. Trustees Executors, &c., Co., 15.

-from decision in ChambersSee Practice. Mercantile Finance, &c., Coy. v. Hall, 291.

Extension of time within which to lodge transcript. See Practice. In

-for benefit of his creditors by justice. See Justices Act 1890. Carbarns v. Bell, 274.

of contract of sale-See Stamps Act 1890. Johnson v. McKell, 177

-of debt-Notic-Proof of debt -Insolvent estate. A creditor of an insolvent estate who has assigned his debt but has not given notice of such assignment either to the debtor insolvent or his trustee in insolvency, may prove for his debt on the insolvent estate in his own name. and without stating that he is proving for the benefit of his assignees. In re Warren, In re MacLachlan & Coy., Exparte Gordon, 77.

of debt-See Insolvency. In re Warren, 77. Association-Unincorporated Association Meetings - Notice-Resignation of members of governing body-Breach of trust-Removal of trustees. Meetings of an unincorporated association are invalid unless summoned in such a way as to bring notice of them to every member, or unless they are known by notorious usage to be held at a certain time. A special meeting of such a body called to transact special business cannot deal with other business. Where at such a meeting, some of the members of the governing body of the association, express their willingness to resign, Held, that this did not amount to a resignation so as to terminate their office. A breach of trust for which a trustee will be removed must amount to either something in the nature of a negation of the trust, or some deliberate intentional abuse of it, or some conduct apart from the trust which will jeopardise the trust property. Conduct honestly pursued with the intention of bona fide executing the trust though mistakenly, and amounting in law to a breach of trust, will not amount to misconduct warranting the trustees' removal. Symes v. Weedow, 197.

Attachment, for non-payment of costs. See Practice. In re Owen, exparte White, 206. Attachment, Writ of foreignSee Insolvency Act 1890. Thompson v. Schaefer, 31.

Attestation See Practice (Probate).

Audit-See Water Act 1890. Meudell v. Shire of Yarrawonga Waterworks Trust, 272.

220.

Bank, Weekly balance books and ledgers of-See Evidence. Reg. v. Taylor, 101.

Betting-See Police Offences Act 1890. Gleeson v. Tee Kee, 130. Bigamy-See Criminal Law. Reg. v. Adams, 79. Bill of Sale-See Instruments Act 1890.

-Power of Sale must be strictly followed. This was an action by the plaintiff against the defendants on a certain bond given by the defendants to the plaintiff as collateral security for an advance of £350 made by the plaintiff to the Queen's Jubilee Gold Mining Coy. Ltd., of which the defendants were directors which advance was secured by bill of sale over the company's plant. One of the conditions of the bill of sale provided that if the company should make default in payment of the said sum of £350 and interest thereon or any part thereof on any of the days or times whereon the same were respectively payable it should be lawful for the plaintiff forthwith to enter upon the premises of the company and seize and take possession of the chattels thereby assigned and sell the same. The company made default and the plaintiff sold under the power of sale but the sale went off through no fault of the plaintiff but through the fault

of the company. The plaintiff then

sued the defendants on their bond and obtained judgment. The defendants appealed on the ground that there was no evidence given at the trial that the plaintiff had seized before selling and that the fact of seizure or non-seizure had not been found by the learned judge who presided at the trial. Held, that in order to made good the sale, seizure in accordance with the conditions of the bill of sale was indispensible; and the Court having come to the conclusion that the question of seizure before sale had never been tried, directed the trial of that issue befere a judge without a jury and ordered judgment to be entered for the plaintiff in event of his proving such issue but for the defendant in event of the

plaintiff failing to prove such issue. Williamson v. Tate, 208. Bond-See Mortgage. Williamson v. Tait, 134.

66

payment shall be made to the contractor at intervals during the progress of the works at the discretion of the architect upon certificates in writing under his hand at the rate of 75% on the value of the work executed in sums of not less than £at a time. 20% shall be paid after the architect has signed a certificate that the contractor has executed and completed the works to his satisfaction and the balance of 5° shall be reserved for the period of one month from the date of completion. In order to ensure the execution of any reinstatings or repairs that may be required by the architect during the above period and which work shall be performed to the satisfaction of the architect before the contractor shall be entitled to receive the said balance and the contractor shall not be entitled to receive any payment whether progress or final except upon the certificate of the architect." It also contained a clause that "the

contractor will deliver up the building to the proprietor in perfect repair, clean and in good condition, when complete, and to the entire satisfaction of the architect, the passing or certifying of any work by the architect shall not exempt the contractor from liability to replace the same if it be afterwards discovered to have been not in accordance with the plans and specifications either in workmanship or materials." The architect gave the following certifi cate: "I hereby certify that Mr. Thomas Machin, contractor, is entitled to receive the sum of £660 19s.

39

10d., as final payment of contract and extras in erecting residence at St. Kilda. This certificate is issued subject to any counter-claim you (the defendant) may have against Mr. Machin, this being the final instalment.' The plaintiff brought an action against the defendant to recover this amount and also certain extras and the defendant set up a general counter-claim for damages on the ground that the plaintiff had not executed the work according to the plans and specifications, had left part of the work undone altogether and had done other parts in a negligent

and improper manner. Held on appeal that the certificate was a final certificate and that the plaintiff was entitled to recover the amount certified by it to be due and that the defendant was debarred from setting up a counter-claim in respect of any matter under the contract. Machin v. Syme, 93.

Bye-law - Proceedings to Quash. See Evidence Act 1890, Health Act 1890.

Call-List of Contributories- In a voluntary winding up, the list of contributories must be settled before a call can be made by the liquidator. In re Mercantile Bank, exparte Bell,

92.

Caveat - See Administration and Probate Act 1890. In the Will of Bishop, 191.

Certificate - See Building Contract. Machin v. Syme, 93. Certiorari—(Per Hodges, J.) where certiorari has not been taken away by statute, any irregularity in the exercise of the jurisdiction, by an inferior Court, is a ground for the issue of the writ, and such irregularity can be shown by affidavit. In re Bell, 58. Chambers, Appeal from decision

in-See Practice. Mercantile Finance &c. Coy. v. Hall, 291. Champerty-See Supreme Court Act 1890. In re Kidston, 194. Chairman See Companies Act Amendment Act 1892. In re Commercial Bank, 239. Charitable bequest-See Practice (Probate). Pincott v. Farrington, 35.

Cheque - Endorser Accommodation-Presentation. A. endorsed a cheque with the intention that B., the maker, should represent him as liable for the due payment of the cheque, and handed it back to B., who paid it to C. Held, that this did not contemplate presentation at the nearest practicable opportunity. Watts r. Spain, 260. Children, access to-See Marriage Act 1890. Stephen v. Stephen,

Common gaming house-See
Police Offences Act 1890. Gleeson v.
Tee Kee, 130.
Company

Supreme Court Act 1890 (No. 1142) sec. 63 (1) Insolvency Act 1890 (No. 1102) sec. 122--Company-Agreement-Proof of debt— Valuing security - Where by the memorandum of association a company is authorised to borrow money on loan, with power to give mortgages over the uncalled capital or any part thereof, the company may mortgage the uncalled capital on certain shares specifically named, and covenant to pay the monies received in respect of calls made upon these particular shares to the credit of the mortgagee, into such bank as the mortgagee may from time to time require. A creditor has a right to have the full benefit of his security. Exparte Home Colonial Assets, &c., Coy., 40.

Calls-Prospectus-Misrepresentation-Delay. Misrepresentation by a person professing to be disinterested but really interested, by which another person was induced to become a shareholder of a company, affords no ground for relief against the company. Non-disclosure in a prospectus of the fact that the provisional directors were vendors to the company of certain property affords no ground of relief to a shareholder against the company. Misrepresentations in a prospectus as to facts relating to certain land to be purchased by the company, such as its distance from Melbourne, the value of adjacent land, the time at which a railway to the property will be opened, are not misrepresentations lying at the root of the contract, and even if material, when the company has gone into liquidation it is too late for a shareholder to seek to escape liability on the strength of such objections. Whittlsea Land Company v. Gutheil and others, Griffiths and others v. Whittlesea Land Company, 48.

-Trustee -Bank-Agent-Following trust money. Where a bank carried on a business of estate agents, collected rents for A., credited the money so collected to his account, and afterwards went into liquidation. Held that A. was entitled to be paid that money by the liquidators of the bank in preference to the other creditors of the bank. Seeley v. Mercantile Bank, 64.

-Winding-up- Calls- Forfeiture-Guaranteed dividend. Liquidators of a company have power to adopt a call ineffectually made by the directors, to fix a new date for payment of it, and to demand that it be paid to themselves. The directors of a company purported to forfeit the shares of a member for non-payment of a call but the call being bad by reason of no proper notice being given the forfeiture was invalid; the company having gone into liquidation the liquidators

amended the call and gave a proper notice. Held that the member could not set up the forfeiture as an estoppel against an action by the company to recover that call nor have on that forfeiture a claim against the company to recover the value of the shares purported to have been forfeited. The vendors to a company of which they became members guaran teed the payment of a yearly dividend for a certain period. During one year in this period the profits were not sufficient to pay a dividend, but the company did declare a dividend. One of the articles of association of the company provided that debts and liabilities of a member to the company should be a first and paramount charge upon that member's share and the dividends payable thereon. The company having released one of the co-sureties. Held that another surety who did not consent to the release was thereby discharged from liability under the guarantee and was therefore entitled to his proportion of the dividend declared but the company being in liquidation execution was not permitted to issue. Robinson Bros., Campbell and Sloss v. Sloss, 145.

-Voluntary winding-up-Judg. ment recovered against company— Resolution for winding-ap before sale by Sheriff of company's assets under writ of fi. fa. Companies Act 1890, sec. 124. Judgment had been recovered against a company, and a writ of fi. fa. issued thereon against the company's land. Before sale by the sheriff under this writ the company went into voluntary liquidation. Held, that the Court had power to stay any further proceedings in the execution of the writ. Buckley's Swamp Estate Coy., 150.

In re

-Costs of liquidator-Affidavit. In an application on behalf of a liquidator for liberty to tax his costs, the materials should show whether the persons interested in the windingup have left their names and addresses in the book or not, and if it appear that they have so left their names and addresses the judge may direct notice of the application to be served on them. In re Balaclava Estate Coy., 152.

-Foreign Company Proof of Incorporation -- Action by-Federal Council Evidence Act 1886-Contract -Reasonable time. To prove that the company was incorporated in New South Wales certain documents were put in evidence, which an expert in the law of New South Wales stated would be conclusive proof of the incorporation of the Company in New South Wales. The manager of the company also gave evidence that the company had an office in Sydney and in Melbourne, and carried on business in both places. Held that this was sufficient proof of the due incorporation of the company in New

South Wales. The Federal Council Act 1886 does not enable the Court to take judicial notice of the signatures of certain officials therein mentioned, of the colony of New South Wales, and to receive in evidence certified copies of documents signed by those officials on their mere production. The plaintiff entered into a contract to deliver to the defendant a certain work containing 42 parts, at a price of 5s. for each part. One of the conditions of this contract was that non-delivery of the publication at any specified date should not release the subscriber from his obligation to take the work. No date was specified in the contract but the plaintiff undertook to begin the delivery of the work in 1886 or 1887, and to complete the delivery of the series as soon after pub. lication as possible. The plaintiff delivered the first part on the 6th May, 1887. The second part was tendered to the defendant in April, 1888, but he refused to take it, and in March, 1890, the whole of the remaining 41 parts were tendered to the defendant by the plaintiff, but the defendant refused to take them. It also appeared that the second part of the work was ready for delivery in March 1887, that the parts up to 20 were ready for delivery in December 1887, parts up to 30 in December 1888, and the remaining parts in November 1889. Held that the plaintiffs did not fulfil their part of the contract by delivering the various parts of the work as above shown Picturesque Atlas Coy. v. Searle, 155. -Guarantee-Alteration of position of parties-Assignment by creditor Borrowing power Duty of lender. The directors of a company gave a joint and several guarantee to secure advances made or to be made by a bank to the company beyond £60,000, not exceeding £15,000. The company having gone into liquidation. Held, that the directors would not be released from the guarantee by an arrangement between the liquidators and the bank which effected an alteration in their position which was obviously unsubstantial and in favour of the sureties. The fact that the bank had assigned its business and assets would not disentitle the bank to sue on the guarantee. Portion of the money advanced by the bank was to the knowledge of the bank borrowed for purposes not authorised by the memorandum or articles of association of the company. Held, that the bank was under no obligation to enquire whether the company had power to borrow money for such purposes, but only to see that the company had power to borrow that money. Bank of South Australia v. Benjamin, 159.

Court will exercise its discretion as to ordering the voluntary liquidation of a company to be continued under the supervision of the Court according as the facts suggest that such a course is desirable, although those facts are not the grounds upon which the petition is presented, but yet are set out in the petition. Re Essendon Land Tramway &c. Coy., 163

Winding-up-Judgment creditor-Seizure under execution before commencement of winding-up- Form of order. Darling v. Jean Biencourt and Coy., 189.

- Winding-up Remuneration of official liquidators-Scale of remuneration-Remuneration at a certain sum per annum is not a proper way of assessing the remuneration to be paid official liquidators. In re The British Bank, 227. Companies Act 1890, (No. 1074) ss. 24, 36, 39, 71, 93-Contributories winding-up--The Court will not, after winding-up, rectify the list of contributories, by removing the name of one person from the list and substituting the name of another, unless some default or undue delay of the company is shown, but for which the substitution would have been made before liquidation. In re Chatsworth Estate Coy., Limited, ex parte Jessup,

39.

Sec. 36 Rectification of register-Where a company is in liquidation a person who has sold his shares is not relieved from being a contributory, if owing either to his own neglect or that of his transferree, or if owing to any cause, except neglect, or breach of duty, or misrepresentation, or deception by the company, the transferree's name has not been substituted for his own at the time of the winding-up. Where an intended transferree had not signed the transfer as required by the articles, the register cannot be rectified by substituting his name for that of the transferror on the list of contributories. In re Hartnell; In re The Chatsworth Estate Coy. Limited, 26.

sec. 36-Rectification of register. On an application by A, the registered holder of certain shares in a Company, to have the register rectified by substituting the name of B for his own name on the register, it appeared that A had taken a transfer of the shares by B's direction, and a declaration of trust, had been executed, by which it was declared that A was to hold the shares subject to the direction of B, who undertook to indemnify A against all liabilities in respect of such shares. Subsequently A, by the direction of B, transferred the shares to some nominee of B's, but to whom it did not appear. Held, that as soon as the shares were transferred, the duties of A as trustee ceased, and that he was entitled to