Both the trustee's report and the resolution granting the debtor's discharge must be filed on an application to the Registrar for the certificate of discharge of a liquidating debtor. SUMMONS calling upon the Registrar to shew cause why a certificate of discharge should not be granted to the debtor. At a first meeting held after the presentation of a petition for liquidation the usual resolution for winding-up the debtor's estate in liquidation. and not in insolvency was passed. At that meeting no resolution granting the debtor his discharge was passed, and a subsequent meeting was held under rule 236, at which a special resolution was passed granting such discharge. The solicitor for the debtor then applied, under sec. 202, subsec. 10, of the Act, for the Registrar's certificate of discharge, and presented the report of the trustee in liquidation. The Registrar declined to issue the certificate unless the resolution granting the discharge was filed. Hellicar, for the debtor, submitted that, as the resolution was not passed at a first meeting, and as there was no provision in the Act or rules for the filing of resolutions in liquidation other than those passed at first meetings, there was no necessity, under sec. 202, subsec. 10, to file anything further than the trustee's report, especially as in the form of the certificate under the Act only the report is JUNE SITTINGS OF THE FULL COURT. BRABANT AND COMPANY v. KING. Negligence-Navigation Act of 1876 (41 Vic., No. 3), ss. 163, 180–Port Dues Revision Act of 1882 (46 Vic, No. 12), s. 12, Sched. 111. -Bailment-Explosives-Magazine-Unfitness of locality-Inevitable accident-Unprecedented flood-Knowledge of plaintiff Contributory negligence- Volenti non fit injuria. A quantity of explosives was stored in the Government magazine, at Eagle Farm, by B. & Co., merchants in Brisbane, in pursuance of The Navigation Act of 1876, for reward. There were no private magazines. In February, 1893, the Brisbane River was flooded twice, and the goods of B. & Co. were damaged. The floods were of an unprecedented nature. The second flood was higher than the first. No effort was made by the Government, in the intervening period, to remove or stack the goods higher. The goods were injured, and had to be destroyed. B. & Co. sued the Government under The Claims The Against the Government Act. The defence was an exercise of proper care; inevitable accident through an unprecedented flood; and, that if the locality was unsuitable, that the plaintiff's knew and acquiesced therein. jury found: (1) That the Government did not regard its duty, and that the goods were destroyed through their negligence in not providing (a) a proper storehouse; (b) a proper locality; and (c) in not taking proper care. (2) That the loss was not occasioned by inevitable accident through an unprecedented flood. (3) That the rising of the river was not such that the Government could not, by any ability, have foreseen or guarded against it. (4) That the plaintiffs knew of the unfitness (a) of the storehouse; (b) of the locality; and with such knowledge, prior to and up to the grievance complained of, continued to deliver explosives and undertake the risks. Damages were given for the full amount claimed. Harding, J., held the maxim, Volenti non fit injuria, was not applicable, and gave judgment for the plaintiffs. Held, on appeal, by Cooper, Chubb, and Real, JJ., that this judgment must be reversed. Cooper, J., was of opinion that the Government were not responsible, except for a tortious interference with the goods, and that the question should have been raised by demurrer. From the evidence it appeared that certain cases of explosives were stored by Nobel and Company, in 1892, in the Government magazine at Eagle Farm, in accordance with the requirements of certain statutes. The plaintiffs were the duly constituted agents of the company in that behalf. There were no private magazines The magazine in question was built in 1886. Prior to tion Act and The Port Dues Revision Act was to make the Government, in respect of explosives, an 1890, water was known to enter the magazine to ordinary bailee for reward, and that they were bound the depth of four inches at high tide, and the to take ordinary and reasonable care of the goods floor had been raised one foot. A flood occurred deposited; that there was no evidence to support the finding that the floods of 1893 could have been fore- in March, 1890, after which the platforms in seen; that the knowledge of the plaintiffs as to the the magazine were raised two feet nine inches. unfitness of the storehouse and locality was an In February, 1893, the river was twice flooded to Chubb, J., was of opinion that the effect of The Naviga answer to their claim; that there was some evidence as to negligence to take proper care; that there should be a new trial for reassessment of damages on the last ground. Real, J., held that there was evidence to support the findings, but that the knowledge of the plaintiffs was an answer to the unfitness of the storehouse and locality; that the Government was not bound to remove the goods unless in the interests of public safety; that there was evidence as to negligence in not restacking after the first flood; and that there should be a reassessment of damages. An order for a new trial with that object was granted. ACTION by Brabant & Co., merchants in Brisbane, against T. M. King, nominal defendant appointed under The Claims Against the Government Act. The claim was for damages for injuries to boxes of explosives injured in the floods in the Brisbane River in 1893, through the negligence of the Government in failing to provide proper storehouses and to take proper care of the explosives stored by the plaintiffs in the Government magazine at Eagle Farm, pursuant to the requisites of The Navigation Act of 1876. The defence was a general traverse of the claim; that proper care had been exercised, and that the damage was caused by inevitable accident through the rapid rising of an unprecedented flood in the river, which could not have been foreseen. Leave to amend was given, by pleading that if the storehouse was in an unsafe condition, that the plaintiffs knew of it. an unprecedented height. The second one was some inches higher than the first. During the interval, from the 5th to the 17th February, no effort was made to remove or stack the explosives higher. The goods were so injured by the water that they had to be destroyed. Brabant & Co. sued the Government for £7,684 8s. 4d., the full value of the goods. Power and Lilley, for the plaintiffs. Byrnes, A.G., Rutledge, and Macgregor, for the defendant. The questions and answers of the jury were:1. Before January, 1893, were the plaintiffs importers into the port of Brisbane of the goods?-Yes. 2. Before the said date did plaintiffs deliver goods to Government in pursuance of statutes to be taken care of for reward?—Yes. 3 In consideration thereof did Government undertake and agree with plaintiffs to (a) properly store and take care of goods?—Yes. (b) Re-deliver to plaintiffs on request ?—Yes. 4. Before said date did Nobel's Company cause to be delivered by plaintiffs the goods to Government, in pursuance of statutes, to be stored and taken care of for reward?—Yes. 5. Were plaintiffs the duly appointed agents of company in that behalf ?--Yes. 6. In consideration thereof did Government undertake and agree with company to (a) properly store and take care of goods?-Yes. (b) Re-deliver to company on order or request?Yes. 7. Did the Government not regard its duty in that behalf ?-They did not. 8. Did it not take proper care of the goods?They did not. 9. By its negligence in not providing (a) proper storehouse, (b) a proper locality, (c) in not taking proper care, were the goods after that date destroyed?--Yes, by negligence. 10. Is the indenture of 6th December proved?Yes. 11. If loss arose, was it caused by inevitable accident through the rapid rising to an unprecedented height of the flood ?-No 12. Was such rising such that the Government could not by any amount of ability have foreseen or guarded against it?-The rising was not such that the Government could not by any ability have guarded against. 13. Was it known at all times to plaintiffs (a) that such storehouses, (b) that such locality, were unfit or improper ?—Yes. 14, 15, and 16, moved for judgment for the defendant. HARDING, J.: This was a case tried before a jury during several days, and at its conclusion the answers of the jury to the questions put by me were such, that if not debarred by the effect of the answers to questions 13, 14, 15, and 16, making a good plea or cause of action, judgment should be entered for the plaintiffs. The defence raised, in respect to which the jury have found the facts, was pleaded after the jury was sworn. At the time that the plea was handed in, on reading it hurriedly, I threw out a suggestion to the counsel tendering it, that it would be well if they were to consider whether it contained all that was necessary, as I had doubts of its validity, and a case was very shortly after referred to which pointed to some defect, and which, if followed up, would have led to all the recent authorities on the case. I can only presume, therefore, that the plea was deliberately sustained, and at the end of the case, although the temptation was held out, no further question on the part of the defendant was put to the jury. He would stand or fall upon his plea-that is, the State would-that if the Government did not provide fit and proper storehouses for the goods--which it is found they did 14. Did plaintiffs, with full knowledge of question 13, and of the risks attending the storage of explosives in such locality, for many years prior to and up to the grievance, continue to deliver explosives to the Government for storage by them in the said storehouse and locality ?--not-if they did not provide fit or proper storehouses, or in a fit and proper locality, Yes. 15. Did the plaintiffs undertake and continue or did not properly store the same in the said to undertake such risks?—Yes. 16. Thereafter, and with full knowledge of questions 13, 14, and 15, did plaintiffs deliver the explosives to the Government for storage in its storehouse and locality?—Yes. 17. What was the value of goods £7,680 8s. 4d. storehouses, the plaintiff, with full knowledge of this unfitness and of the risks attending the storage of explosives in such storehouses and locality for many years prior and up to the happening of the grievance, continued to deliver destroyed?-explosives to the Government to be stored by the Government in such storehouses and locality, 18. Was that the market value; if not, what and undertook and continued to undertake such was?—Yes. 8s. 4d. risk, and thereafter, with full knowledge of the 19. What damage ?--The full amount, £7,680 aforesaid, delivered the explosives in the statement of claim mentioned to the said Government Power moved for judgment for plaintiffs for for storage in the said storehouses and locality. £7,680 8s. 4d. Now, the question resolves itself on that into two Rutledge, on the findings to questions 13, heads-(1) Did that plea without calling into its But when it is assistance any of the other defences raised in the to find these particular premises free from danger, case answer the plaintiff's case? (2) Did it call as in the case of lands on which a market or fair into existence such assistance, and then, even if has been held, Winch v. Conservators of the that were sustained so far as it goes, does it go to Thames; Lax v. Corporation of Darlington. The the whole of the plaintiff's case? Then the second defendant in such circumstances does not discard point to be decided is-Is it necessary that this his legal obligation by merely affecting the agreement should be pleaded to have been made plaintiff with knowledge of a danger, which but freely and voluntarily? During the course of the for a breach of duty on his own part would not case, and since, a number of authorities were cited. exist at all. But where the danger is one incident The first, I think, in order of time was that of to a perfectly lawful use of his own premises, Woodley v. The Metropolitan District Railway neither contrary to statute nor common law, where Co., in 2 Ex.D., p. 384. Now, that case was the danger is visible and the risk appreciated, and relied upon by Mr. Rutledge very much, but I shall where the injured person, knowing and appreonly mention it because it is entirely inconsistent, ciating both risk and danger voluntarily encounters in my opinion, with the decisions in later cases, them, there is, in the absence of further acts of and as far as I can see, has lost all virtue since the omission or commission, no evidence of negligence case, which I shall subsequently mention, of on the part of the occupier at all. Knowledge is Smith v. Baker before the House of Lords. The not a conclusive defence in itself. next case was a case mentioned by the Attorney- a knowledge under circumstances that leave no General in his argument, that of Lax v. Mayor of inference open to one-namely, that the risk has Darlington, 5 Ex.D., p. 28. He is specially been voluntarily encountered-the defence seems referring to pp. 33, 35, 37, dicta more particularly to me complete." Implying, on the face of this of Brett and Bramwell, L.JJ. The case decided other case, that there has been something more that the defendants, having received toll from the than knowledge wanted, that is to say, there is plaintiff, and having invited them to come to the wanted, what is wanted in every contract--freedom market with their cattle, a duty was imposed on--the contracting parties must be both and each them to keep the market in a safe condition, and free from duress. If one of them is under duress, therefore an action would lie against the defendants for the loss sustained by the plaintiff. Now, that as near as possible was this case before us to-day, and the observations made by both Brett, LJ., and Bramwell, L.J., have nothing at all to do with the decision of the case. So far as I can see, there has been a difference between the leading Judges at home on this question, in which the minority has been one and sometimes two. This one or two seem on all possible occasions to have asserted themselves and their dicta. That case was commented on in this case of Smith v. Baker, which I shall refer to by and by. That was commented on in the case of Thomas v. Quartermaine, 18 Q.B.D., p. 685. Referring to the case of Lax v. Corporation of Darlington, on pp. 696, 697, Bowen, L.J., says: "The plaintiff may have a common right or an individual right at law there is no contract; consequently, so far, there should have been a statement of freedom of duress. This case of Thomas v. Quartermaine is elaborately dealt with in the case of Smith v. Baker before the House of Lords. In fact, they all are. It is one of those very long decisions which we have in the House of Lords sometimes, and the result of it was the defence arising from the maxim, Volenti non fit injuria, had not been affected by the Employers Liability Act, and therefore there was no evidence of breach of duty there. Lord Esher, M.R., at p. 689, says:—“ Unless it can be made out that mere knowledge of the plaintiff of the existence of the defect is a defence to the action, we have no right to look into the findings. To my mind, it is conclusively shown that there was a defect—that is, such a condition in the works as produced a danger and that it was of such a nature that the which negative this, as for instance, if the servant, master or person entrusted with the superin- in spite of the danger, does any act tending to tendence must have known of the existence save life or to the protection of his master's of the defect. With regard to the plaintiff, property? I protest against it being said that a there was no evidence that when he entered jury are bound to find that there is negligence, in into the contract with his employer he such a case, on the part of the man who runs the knew of the state of the works, and, therefore, risk. The knowledge of the plaintiff of the want he cannot be said to have either expressly or of care of the defendant is not conclusive against impliedly contracted to run the risk. It is said, the former, though it is a material fact for the however, that he had been a very long time there, consideration of the jury in determining whether and must have known of the risk. Take it that he under all the circumstances the plaintiff was did. Is that, standing alone, something which guilty of contributory negligence." Then there prevents his recovering? I never heard the was Yarmouth v. France, in 19 Q.B.D., p. 647. matter so put. It seems to me that sec. 2, It was there held by the majority of the court subsec 3, of the Act shows that the Legislature (Lord Esher, M.R., and Lopes, L.J., dissenting), did not adopt any such view, because in that that upon the facts the jury might find the clause a case is contemplated in which both the defendant to be liable, for there was evidence of workman and his master know of the defect. negligence on the part of his foreman, and the The section says "that the workman has not to circumstances did not conclusively show that the have the right of compensation in any case where risk was voluntarily incurred by the plaintiff. the workman knew of the defect or negligence Then, at p. 657, Lord Esher says: "Taking the which caused his injury, and failed, within a whole of that judgment together, it seems to me reasonable time, to give, or cause to be given, to amount to this, that mere knowledge of the information thereof to the employer, or some danger will not do: there must be an assent on person superior to himself in the service of the the part of the workman to accept the risk, with a employer, unless he was aware that the employer full appreciation of its extent, to bring the or such superior already knew of the said defect workman within the maxim, Volenti non fit or negligence." So that it is assumed that the injuria." Then there is Thrussell v. Handyside servant may recover if he gives information, or & Co. 20 Q. B.D., 359, where it was held, that the if the master already knows. I cannot see, case was rightly left to the jury; that, although therefore, that the knowledge of the plaintiff the plaintiff was aware of the danger, yet he was absolves the defendant from any duty. It is put compelled by the orders of his employer to in the argument that the duty of the master is work where he was working when the accident either to take reasonable care that there shall be happened; the maxim, Volenti non fit injuria, no defect, or tell the servant that he does not did not apply, and he was entitled to recover. mean to do so. To me it seems an unnatural The next case was that which was cited during doctrine that merely telling the servant of the the trial, the case of Osborne v. L.N.W.R.Co., defect should absolve the master from liability, 21 Q.B.D., 220. The marginal note is as and unless there is some authority that binds me follows:-The plaintiff was injured by falling on to accept it, I cannot do so. Is it true to say that steps leading to the defendants' railway station, the mere knowledge of the servant, that the which the defendants had allowed to be slippery master is not going to take care that there is no and dangerous. There was no contributory defect or danger, makes the continuance of the negligence on the part of the plaintiff, but there servant at the work evidence of negligence on were other steps which he could have used, and his part? Are there not innumerable instances he admitted that he knew that the steps were |