APPEAL No See INSOLVENCY Amendment of Pleadings. Guarantee. New trial. R. signed a continuing guarantee for an overdraft by the Uuion Bank to B. up to £250, and agreed to lodge the certificates for certain shares belonging to B., which were transferred into R's. name as collatral security for the overdraft. B. subsequently wished him to obtain the shares, and R. gave him an order on the bank for the delivery of the certificates. B. took the certificates from the bank, had the shares re-transferred to his own name, and relodged the certificates with the bank. reference was made to the guarantee. On 11th July, 1893, the bank issued a writ against R on the guarantee, the overdraft then exceeding £250. On 13th July, the bank sold certain of the shares for £256. On the pleadings, the defendant R. denied the execution of the guarantee, and pleaded that if it was executed its execution was procured by fraud. The facts above stated appeared upon the evidence for the plaintiffs. At the close of the evidence the defendant applied for leave to amend by setting up the defence that the guarantee was satisfied. Chubb, J., refused leave to amend, and judgment was entered for the bank on the findings of the jury. Held, on appeal by Griffith, C.J., Harding, Real, J.J, that as on the plaintiffs own case the questions arose whether the deposit of the certificates was for the benefit of R. or the Bank, and whether the guarantee was given on the understanding that it was to be given up as soon as the certificates were re-deposited with the bank, and as neither of these questions had been left to the jury, there must be a new trial, with leave to the defendant to amend as he might be advised. UNION BANK OF AUSTRALIA, LTD. v RAINE .. .. District Court. New trial. Notice. Illegal Distress. District Courts Act (55 Vic., No. 33), ss. 132, 144, 145, 147. Set off. Small Court Judgment. M. rented a house from R. and had also business transactions with him. M. being desirious of determining her tenancy, handed the key of the premises to R., and removed her furniture to another house. that time M. owed £2 for rent and a larger sum for goods supplied by R. R. distrained upon the furniture so removed. At M. brought an action for illegal distress and R. pleaded by way of set off, a judgment in the Small Debts Court against M. in favour of R. The jury found that the distress was not illegal, and Miller, D.C.J., on 18th September, entered judgment for R. on the set off. Notice of appeal was given within the prescribed time, but the appeal was not set down for hearing before the December Sittings of the Full Court. On appeal it was objected that the appeal was out of time, and that in any event an application for a new trial should have been made to the District Court. Held, that the appeal was within time and that under s. 144 of the District Courts Act, the Supreme Court has jurisdiction to hear an appeal in any of the cases specified in that section, in which the party is dissatisfied with PAGE PAGE 52 .. . 307 60 94 312 36 BANKER AND CUSTOMER Action on dishonoured cheque by non-trader. Damages. Post-dated cheque Bankers' right of set-off. Pass books. Bills of Exchange Act of 1884 (48 Vic., No. 10), ss. 3, 4, 11, 12, 13, 14, 74. Action for dishonour of two cheques. Plaintiff, a solicitor's clerk, who had a banking account with defendants, issued to a creditor a post-dated cheque, which was put in circulation by the creditor, and received in the ordinary course of banking exchange by defendants, who paid it, and debited it to plaintiff's account before the date appearing on the face of the cheque. In consequence of this debit, two other cheques drawn by plaintiff were dishonoured. Held, by Griffith, C.J., and Real, J., that the true date of a post-dated cheque issued by the drawer is the date of its issue, and that defendants, who received the cheque in question from bona fide holders for value, were themselves holders for value, and that the amount of the cheque was properly debited to plaintiff's account before the date appearing on its face. By Harding, J.: That, without deciding whether a post-dated cheque is a cheque payable on demand, or a bill of exchange payable at a future day, i.e., on the date appearing on its face, that defendants were in either view entitled to debit the amount to plaintiff's account. Per Griffith, C.J., and Real, J. Any person who ordinarily transacts his pecuniary business by means of cheques on a bank can maintain an action for substantial damages for dishonour of a cheque without proof of special damage. It appeared from plaintiff's own evidence that before drawing the second cheque, the dishonour of which was complained of, he had, on being informed of the dishonour of the first, obtained from defendants his pass-book, which showed that the post-dated cheque had debited to his account, and that the balance to his credit was insufficient to meet the cheque which he then proceeded to draw. It appeared, also, that he knew that he would not be allowed to overdraw his account. Per Griffith, C.J., and Real, J. An action could not be maintained for the dishonour of a cheque drawn under such circumstances, both on the ground of estoppel, and on the ground of a suspension by express notice of the implied term of the contract between banker and customer on which the action was based. Per Harding. J. It is for the jury to say whether the admitted facts would have that effect. MAGILL . BANK OF NORTH QUEENSLAND BAILMENT See NEGLIGENCE BARRISTER See LEGAL PROFESSION BENCH WARRANT See CRIMINAL LAW No. 10). SS. 3, 4, 11, 12, 13, 14, 74. PAGE . 262 BILLS OF EXCHANGE ACT OF 1884 (48 VIC., BILL OF SALE See COMPANY After acquired property described by general words. G., a chemist carrying on business at R. street, Toowoomba, gave a bill of sale to plaintiffs, to secure the repayment of £500 and further advances to be made by them in money or goods in connection with his business. The bill of sale comprised all and singular the stock of chemicals, drugs, &c., and all other the stock in trade of the said G., in the trade or business of a chemist and druggist, or any other business which then was or which might thereafter be carried on by the said G.; household furniture, effects, and things then in, about, or belonging to the shop and premises of G. at R. street; and all book debts, &c.; and all other property whatsoever of the said G.wheresoever situated, which might at any time during the continuance of the security, be acquired by him, and whether the same were used in addition to substitution for, or in connection with the premises thereby assigned, or expressed and intended so to be, or otherwise, And it was expressly agreed by the bill of sale that the security should extend to and comprise, not only the mortgaged property thereinbefore particularly set out, but also all further businesses, leases, goodwills, &c., of the said G., household furniture, goods, chattels, effects, &c., and all other property whatsoever which the said G. might thereafter acquire or become possessed of, or entitled to during the subsistence of the said security, whether the same might be used either in addition to or in substitution for, or in connection with the said mortgagedproperty thereinbefore set out or otherwise. G. died, and at the time of his death he was carrying on business at the said shop in T., but he resided in another house in the same town, the property of his wife. Before his death he had been accustomed to import chemicals from England, and to store them at his private residence, taking them thence and using them at the shop as required. Certain of the chemicals acquired after the date of the bill of sale were stored at the private house ot the time of G.'s death, and there was also in or about his private residence certain household fnrniture and effects acquired by G. before his death. Plaintiffs claimed that the chemicals and furniture at the testator's residence were inIcluded in the bill of sale, but G.'s executor refused to admit their claim. Held, that the bill of sale included the chemicals stored at testator's residence, and also such of the furniture as he had acquired after the execution of the bill of sale. PAGE 276 IN re GOODRICH, ELLIOTT BROS. . CAMPBELL.. 295 Renewal of registration. A husband executed Re DUNSTAN .. 182 BREACH OF DUTY To executors carrying on a business. See ACCOUNTS 259, 304 See ACCOUNTS 260 COMPANY CERTIORARI Discretion. Conduct of applicant. Appeal from Justices. The grant of certiorari is in the discretion of the Court, and even where a person is aggrieved he may have acted in such a way as to preclude his making an objection to jurisdiction. An appeal from an order of justices was heard in the District Court, and dismissed on the merits. A writ of certiorari was applied for, on the ground that one of the justices was an interested party; the fact of the appeal was suppressed at the application for the rule nisi. The Full Court refused the writ. R. v. CASTLES AND OTHERS (JUSTICES).. See LICENSING ACT 68 98 86 94 ..9, 76 281 44 Call. Forfeiture of shares. Companies Act, 1863 of association of a company contained a clause Held, that the shares could be forfeited only at the GREAT MONKLAND TRIBUTE Co.,LTD. r. FREEMAN 112 Debenture. Floating security. Bill of sale. Lien A ticket. Goldfields Act of 1874 (38 Vic., No. 11) Reg. 38. Foreclosure. Form of order. limited company, by six debentures at different dates, charged all its present and future real and personal property and interest in lands, and all its plant, machinery, debts goodwill, chattels, effects, and assets, and generally all its property real and personal, for the repayment of the sums and interest secured thereby. The debentures were to be a floating security, and the moneys so secured were to be payable if default were made in payment of principal or interest for 21 days. A bill of sale was subsequently given by the said company over certain machinery and plant as collateral security to the said debentures, and a lien ticket under regulation 38 of The Goldfields Act of 1874 was also given as security collateral with the bill of sale. Default having been made in the payment of interest in the first debenture, application was made for foreclosure on all the property comprised in the debentures, bill of sale, and lien ticket. A declaration of charge, and a direction for inquiry and account, were made, and in default of payment, the company was ordered to do all acts and execute all conveyances necessary for vesting in the plaintiff the property comprised in the debentures, bill of sale, and lien ticket. Sadler v. Worley (1894) 2 Ch. 177, followed. POYSER . MT. SHAMROCK GOLD COMPANY, LTD., AND ANOTHER Proof of incorporation. See CRIMINAL LAW 276 209, 313 166. A member shall not make any noise or disturbance while a member is orderly debating, or while any matter is under consideration, and in case such noise or disturbance is made and persisted in after warning from the Chairman, the Chairman shall call by name upon the member making the same, and if he does not immediately desist, shall report his conduct to the House, and such member will incur the displeasure and censure of the House, and may be suspended from the service of the House for such period as the House may think fit. Held, that Standing Order 166 is within the powers conferred on the Legislative Assembly by s. 8 of The Constitution Act of 1867. Evidence of facts antecedent to the report of the chairman on which the order of suspension is made is not admissible. The Court will not enquire into the regularity of the procedure of the Legislative Assembly in the exercise of its powers. Taylor v. Barton (11 App. Cas., 197), Bradlaugh v. Legislative Assembly. Suspension of members. Standing Orders. Jurisdiction of the Supreme Court. As the Legislative Assembly has power under its Standing Orders, pursuant to s. 8 of The Constitution Act of 1867, to regulate its internal procedure relating to orderly conduct, the Supreme Court has no jurisdiction to take cognizance of the mode in which a resolution for the suspension of a member was passed. Judgment of Griffith, C.J., (ante p. 234) affirmed. Bradlaugh v. Gossett (12 Q.B.D., 271) followed. BROWNE . COWLEY 234 254 action was pending, defendant issued to the creditors in the insolvent estate a printed circular, giving his version of his dealings with the insolvent, and of the circumstances under which he became assignee of the bill of sale, and asking them to sign a document declaring that they disapproved of the action, and to cause all further proceedings in it to be stopped. Held, that defendant was not, by his action in sending the circular, guilty of a contempt of court, and that the circumstance that the creditors might also be witnesses made no difference. CASTLES . ROESSLER CONTRACT Contract for board. Implied condition of good behaviour. Immorality. Defendant, by a written agreement, agreed to provide plaintiff with board for three years at a fixed rate. The agreement contained no provision as to the plaintiff's behaviour. Before the three years had elapsed, defendant, on the gronnd of plaintiff's alleged immorality with defendant's female servant, refused to supply him further with board. Held, that the breach of contract was not justified by the alleged immorality. Semble (Griffith, C.J., and Real, J.), that it is an implied condition of a contract involving a personal relation between the parties, that neither party will be guilty of such misbehaviour as would render the continued performance of the contract an intolerable burden to a reasonable person. Per Harding, J. Immorality not being illegal, and the parties to a contract having the power to provide in the contract against it, no condition of good behaviour can be implied. MULHOLLAND r. KING .. Impossible condition. An action will not lie on a PAGE 312 268 covenant to pay money upon a condition the performance of which is legally impossible. MUNICIPALITY OF ROCKHAMPTON . INGHAM.. 256 Performance of condition precedent. Burden of proof. An agreement in writing between W. and M. that, in consideration of M.'s transferring to H. the license, goodwill, and furniture of an hotel, W. would become surety to M. for the payment by H of £300, and would endorse H.'s promissory-notes for that amount, contained the following words : This agreement being conditional upon the said H. giving a bill of sale over the said hotel, license, and furniture prior to the transfer of the license." M. transferred the license, &c., to H. No bill of sale was executed by H., and W. refused to sign the promissory-notes. M. brought an action against W. for specific performance of the agreement, or for damages. Held, that the signing of the bill of sale was a condition precedent to W.'s liability, and that the action failed. MALONE. WRIGHT, HEATON AND CO. Sale of goods. Delivery. Recision. Local Government Act of 1878 (42 Vic., No. 8) s. 160. Local Authorities (Joint action) Act of 1886 (50 Vic., No. 16) s. 18. Contract under seal. With the Brisbane Bridges and Ferries Board, the plaintiffs entered into an agreement to build a 270 punt, place it on a ferry and run it for two months. The plaintiffs alleged delivery, payment on account, and sued for the balance. The defendants denied the contract; alleged that if made, it was not under seal; that it was not in writing, as required by the Statute of Frauds, and that before any breach the contract was rescinded by a new agreement. The jury found that there was an agreement to build contained in certain of the exhibits; that the agreement though not under seal, was signed by the president, or two members of the corporation for the purpose of the contract acting by direction; that the punt was built in accordance with the plan, but was not delivered, and that there was a recision before breach. Harding, J., entered judgment for the defendants. Held, on appeal by COOPER, CHUBB, AND REAL, JJ., that the contract was proved in the facts, that the punt was delivered, and there was no recision of the contract. CLARK AND FAUSET . MUNICIPALITY OF BRISBANE CONTRACT UNDER SEAL See CONTRACT .. CONTRIBUTORY NEGLIGENCE See NEGLIGENCE See CRIMINAL LAW PAGE .. 131 131 119 80 30 CONTRIBUTORIES See COSTS CONTRIBUTION See GOLD FIELDS ACT 1874 .. 307 89 See ADMINISTRATION Against the Crown. Costs were given against justices on the hearing of an order nisi for mandamus, as the Crown Solicitor had instructed counsel to appear on their behalf to show cause. R. r. ELECTORAL JUSTICES OF TOOMBUL A quashing order was made absolute with costs against a trustee of a cemetery who had laid the information against the appellant, and who failed to prevent the proceedings on appeal, although he knew the original proceedings were improperly instituted. HOLLAND . HARTFORD .. See CROWN LANDS ACT OF 1884 See ELECTIONS ACT, 1885 Order as to costs part of judgment— Divorce. Counter charges. an action for divorce the petitioner made certain charges of misconduct against the corespondent, and the co-respondent, besides denying these charges, made counter charges of misconduct against the petitioner. The petitioner failed in his case, and the corespondent was unable to prove his charges. Harding, J., ordered the petitioner's costs of, and occasioned by the counter charges raised by the co-respondent, to be taxed and paid by the co-respondent, the co-respondent's costs of his defence (except such costs as aforesaid) to be paid by the petitioner. Held, by Griffith, C.J., Cooper and Real, JJ., that on that order the petitioner was entitled to a complete indemnity for the expenses to which he had been put by the counter charges, and the co-respondent complete indemnity for his defence in defending the suit, except so far as he had increased them by the counter charges; and that it did not mean that there should be a general apportionment of the costs of the suit. O'BRIEN . O'BRIEN AND ANOTHER Re Dominion of Canada Plumbago Co., 27 Ch.D., 37, followed. Re THE PUNT OWNERS ASSOCIATION, LTD. Crown Solicitor. Solicitors Act of 1891 (55 Vic., No. 22), 8. 3. Customs Act 1873 (37 Vic., No. 1), 8. 237. When costs are awarded to an officer of the Crown, they are to be taxed in the ordinary way, notwithstanding that the officer appeared by the Crown Solicitor, who receives a fixed yearly salary. Attorney-General v. Shillibeer (4 Ex., 606), followed. Decision of Real, J., reversed. IRVING V. GAGLIARDI, Ex parti GAGLIARI District Courts Act, 1891 (55 Vic., No. 33), 88. 120, 123. Interpleader. Amount under £10. Scale of costs. The District Court Rules do not provide any scale of fees for cases under £10. Held, that a District Court Judge has no power in such a case to order the costs of the successful party to be taxed on any scale. Semble, that he has power to order the unsuccessful party to pay a fixed sum for costs. KEOGH V. BLAKE .. PAGE 40 30 200 213 |