C.L.C. Act 1913, ss. 75, 228, and 229, Regulation 9 Special lease Application for extension of term by holder-Invalid application by another person for leaseMerits of applicants.-An application lodged for a special lease of land reserved from lease under s. 228, on the expiry of a prior lease is not duly made unless the same has been made available by Gazette Notice. The merits of a holder of a special lease who has applied for extension of his term, and those of another applicant for a lease of the land, considered and commented on. The general principle that, in the absence of special circumstances, one Crown tenant should not be dispossessed in favour of another, applied. DITCHFIELD V. CULLAM, 3 L.V.R. 77. [New South Wales.]

Closer Settlement Act, No. 37 of 1904, ss. 26 and 36-Closer Settlement (Amendment) Act, No. 53 of 1916, s. 10-Returned Soldiers Settlement Act, No. 21 of 1916, s. 16-C.L.C. Act 1913, s. 75 Settlement purchase Special lease-Transfer-Bona fides of transfereeFamily pool-Advancement of child. The father and several members of a family, including the proposed transferees of a settlement purchase and a special lease, held various areas of land aggregating about 8,500 acres, which were all included and worked in what was termed a pool. The whole of the lands were stocked with sheep which belonged to the father, and the whole of the proceeds from such lands were paid into the father's banking account, on which he alone operated. Wages were paid to the sons (including the transferees) who worked on the lands, but there had never been a division of the profits in the "pool," nor any account made out showing any allocation of those profits. Held, that the applications for transfers were not made for the land for the sole use and benefit therein of the transferees, but would in fact be for the benefit of the father. Recommendations made that the Minister should not consent to the transfer. The principle of the advancement of a child by a parent, as contemplated by the Crown Lands Acts, considered. In re CURTIN, 2 L.V.R. 169. [New South Wales.]

Determination of value of improvements— Rehearing-Rabbit and dog netting fence— Selector's liability - The Land Acts, 1910 to 1922, ss. 123 (2) 155. · Upon rehearing the decision of the Court pronounced on 15th May, 1923 was varied to the extent that the selector is liable to pay for only half the value of the additions made to the fence to make it rabbit-proof and dog-proof. GRAZING FARM 1672, CHARLEVILLE, 9 C.L. (Q.) 284. [Queensland.]

See also 9. Resumption.

5. PERPETUAL LEASE SELECTION.

Re

Application to select-Perpetual lease selection-Condition of cultivation The Lands Acts 1910 to 1922, s. 71.-An offer to effect cultivation of part of a selection is of no effect unless combined with an offer to personally reside on the selection. It is mere surplusage and neither entitles an applicant making such

offer to priority nor renders an application in valid. Re STEFANO DEGIOVANNI'S APPLICATION, 9 C.L. (Q.) 222. [Queensland.]

Applications to select-Perpetual lease selections-Time prescribed in notification for lodging application The Land Acts, 1910 to 1920, ss. 54, 55 — The Discharged Soldiers Settlement Acts, 1917 to 1920.Deputy Land Commissioner's decision accepting an application reversed and the application rejected on the ground that the application was not made within the time prescribed in the notification opening the land for selection. Re J. C. JENKEN'S APPLICATION, 9 C.L. (Q.) 223. [Queensland.]

6.-FRICKLY PEAR DESTRUCTION.

Application for extension of lease-Destruction of prickly pear-Public interests— The Lands Acts, 1910 to 1922, ss. 27 (2) 137.-The existing law does not provide for an extension of lease for any less consideration than the destruction of the whole of the pear on a selection, and it is doubtful if the public interest would be promoted by granting an extension of lease while allowing an exempt area to remain pear infested. Recommended that an extension of lease be granted for a period of twenty-one years, the whole of the pear now on the selection to be destroyed within five years; that outside the exempt area to be destroyed within one year. Re GRAZING FARM NO. 520, [Queensland.]

ST. GEORGE, 9 C.L. (Q.) 225.

Application for extension of leasesEradication of prickly pear The Land Acts, 1910 to 1923, s. 137. - Held, that an extension of lease under s. 137 is not an appropriate means of dealing with this case. That provision is rightly made use of when the existing contract does not provide sufficient inducement to tackle the pear difficulty, which the relative case presents, Regard should be had to the magnitude of the pear problem, the unexpired term of the existing lease, the character and value of the holding, the rent charged for it, and the general circumstances. Re GRAZING SELECTIONS NOS. 442, 443, ST. GEORGE, 9 C.L. (Q.) 228. [Queensland.]

Resumption for railway purposes-Reservation in original grant (N.S.W.) Compensation The Railways Act of 1914, ss. 8, 35, 40, 42, 47, 52, 55, 56, 57, 59.-The original deed of grant of an area of 31 acres of which the land taken forms part was issued in 1849. It contained a provision worded as follows: "Provided nevertheless and we do hereby reserve unto us our heirs and successors all such parts and so much of the said land as may hereafter be required for making public ways, canals or railroads in over, and through the same to be set out by our Governor for the time being of our said Territory or some person by him authorised in that respect.' A branch railway was approved by Parliament in 1895 and was opened for traffic in 1897, and at that time an area of less than two acres was taken from the subdivisions of the area comprised in the deed of grant above referred to. It was contended that legally no compensation was payable for the taking of an area of 2 acres 3 roods 11 perches in 1921 from subdivisions of the same portion, for the purpose of a goods yard, to be used in connection with the existing branch railway on the ground that the right to take the land was reserved in the original deed of grant. Held, that, while it is of course possible for the Commissioner under the Railways Act to take any land he needs, the setting up, for the purpose of avoiding the payment of compensation, of the theory that the making of the railway approved by Parliament in 1895 can continue for all time, is not reasonable or proper construction of the terms of the reservation. Held, therefore, that the resumption is not for a purpose contemplated by the reservation, and compensation should be determined as provided in The Railways Act of 1914 and subject to the provisions of that Act alone. GOLDSBROUGH MORT & Co. LTD. v. COMMISSIONER FOR RAILWAYS, 9 C.L. (Q.) 238. [Queensland.]

Resumption Compensation - The Land Act of 1910, ss. 145, 152, 154. Capitalised probable profit during the remainder of the lease is not the value of the holding to an incoming lessee at the relevant date. In

Resumption Compensation - Claimant— Costs The Public Works Land Resumption Acts, 1906 to 1917, ss. 15 (1) 23. H. by an agreement purchased 26 acres 1 rood 9 perches of land on 11th April, 1921. Resumption of part of area purchased was effected on 10th June, 1922, and on 30th December, 1922, transfer of balance area to H. was executed. Sale agreement provided that H. was to have the right to receive any money payable by the constructing authority for the resumption for road purposes of any part of the purchased land. Claimant H. objected to on the ground that he is not the person entitled to receive compensation. Held, that H. was competent according to s, 15 (1) of The Public Works Land Resumption Acts 1906 to 1917 to make a claim. HARNEY V. ISIS SHIRE COUNCIL, 9 C.L. (Q.) 269. [Queensland.]

CUSTOM.

Overtime rates-Effect of evidence of custom-Award.- See INDUSTRIAL ARBITRATION, col, 230.

Custom or usage in industry-Evidence of. -See INDUSTRIAL ARBITRATION, col. 209.

CUSTOMS.

Customs-Duty payable.-Two hundred cases of whisky were carried from Glasgow to New Zealand in a steamer, which arrived in Auckland on the 2nd November, 1921. The whisky was consigned to Dunedin, and was landed there on the 28th November, 1921. On the 2nd December, 1921, it was entered at Dunedin for home consumption, and duty at the rate of 36s. per gallon was paid thereon. On the 2nd November the duty was 18s. per gallon, which the appellants contended was the proper duty. The duty was levied and collected under the authority of the following resolution of the House of Representatives, passed on the 3rd November, 1921 : Resolved that, notwithstanding anything in s. 143 of the Customs Act 1913, there shall be levied, collected, and paid . . . on all goods specified in the First Schedule hereto, and imported into New Zealand after the 3rd day of November, 1921, or entered for home consumption after that date, the several duties of customs (if any) mentioned in column No. 1 or Column A.A.D., 1924 5

66

No. 3 (as the case may require) of the said schedule." This resolution was ratified by s. 24 of the Customs Amendment Act 1921, by which it was declared to have had the force of law until the passing of that Act. In the Supreme Court, Stout, C.J., held that the duty payable was 36s. per gallon. Held, on appeal (affirming the decision), that the intention of the resolution was to negative the favourable alternative in s. 143 during the continuance of the resolution, and that the proper duty had been charged. POWLEY v. THE KING, 1924 N.Z.L.R. 664; G.L.R. 17. [New Zealand.]

Forfeiture of imported goods-False trade description.-See TRADE MARK.

DAMAGES.

Right to support-Removal of water from subsoil-Lowering of water level-Settled conditions disturbed-Subsidence and shrinking-Injury to building Compensation Damage. The defendant Board constructed

а

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sewer under powers conferred by the Metropolitan Water Supply and Sewerage Act of 1909. Sect. 143 of the Act provides : Except as by this Act is otherwise provided, if any person sustains any damage by reason of the exercise by or on behalf of the Board of any of the powers conferred by this Act, in relation to any matter in which he is not himself in default, full compensation shall be made to such person by the Board." In an action for damages, the Judge found that the board had, in the exercise of the powers conferred on the board by the Act, occasioned damage to the plaintiff's buildings by disturbing the settled conditions of the sub-soil on which the buildings were erected-that is to say, by causing the withdrawal of sub-soil water and the lowering of the water level theretofore existing, and the consequent shrinkage and movement of the sub-soil, the weakening and interference with the foundations of such buildings, and a reduction in the frictional resistance of the piles. Held, that the damage so occasioned was damage within the meaning of s. 143 of the Act. METROPOLITAN WATER SUPPLY. AND SEWERAGE BOARD v. R. JACKSON, LIMITED, 1924 S.R. (Q.) 82. [Queensland.]

Fraudulent misrepresentation inducing purchase of shares-Value of shares at date of allotment. In an action for damages for fraudulent misrepresentation inducing the purchase of shares in a company the plaintiff having proved that he was induced to purchase the shares by fraudulent misrepresentation is entitled to recover as damages the difference between the price he agreed to pay for the shares and the value of the shares immediately after the day when they were allotted to him. The rule that the real value of the shares at the date of allotment is not the market value, which may be inflated by the very

misrepresentation complained of, but the value of the assets which is behind them does not disentitle the jury from acting on reliable evidence aliunde as to the real value of the shares in the open market as ascertained That rule in the light of subsequent events. is intended to be made use of only as a last resort in cases where there is no evidence of the value of the shares themselves. If there is such evidence there is no need to attempt to analyse the intrinsic value of the assets represented by the shares, for the cardinal question is what was the real value of the shares themselves as marketable commodities, and the safest test of that figure is the price or prices at which they were actually sold from time to time. CLEAVE v. MCDONALD, 1924 G.L.R. 646. [New Zealand.]

Question

Trespass No evidence of damage for jury-Bailiff Execution. In an action for trespass against a bailiff for excluding the plaintiff from his premises no evidence was given by the plaintiff of any damage suffered by him in consequence of such exclusion. The judge directed the jury that they could give the plaintiff such damages as they thought he was entitled to under the circumstances. The jury found for the plaintiff for £75. On appeal :-Held, that the direction was right, and that the case was not one where nominal damages only were obtainable: WATERS V. MAYNARD, 24 S.R. 618; 41 W.N. 166. [New South Wales.]

Amount of damages in actions of detinue of documents.-See MORTGAGE, col. 327.

Arrest on Mesne Process Act-Affidavit— Damage Statement of amount.-See PRACTICE, col. 355.

Bankruptcy Act (N.S.W.), s. 4 (1)-Cross demand including claim for unliquidated damages for tort.-See BANKRUPTCY, col. 24.

Industrial Union-Wrongful expulsion of member. See INDUSTRIAL ARBITRATION, col. 220.

Club Wrongful expulsion of memberDamages. See CLUB.

Interim injunction restraining entry on native land dissolved-Damages sustained by granting. See NATIVE LAND.

Action in Magistrate's Court for £50Damages Judgment for £10—Right of appeal -See JUSTICES, col. 250.

Contract to pay a principal sum on a certain date with interest-Construction-Subsequent interest-Contractual interest - Damages. See VENDOR AND PURCHASER, col. 480.

Damage sustained by trespass of cattle on unfenced land. See TRESPASS.

Sale of land-Bankrupt purchaser-Proof of debt-Bankrupt land agents representing purchaser's financial ability—Proof of debtDamages. See BANKRUPTCY, col. 27.

Action for damage against Harbour Board for vessel at unsafe wharf-Limitation.-See HARBOUR.

Sale of land-Lien for unpaid purchase money-Loss of crop-Damages. See VENDOR AND PURCHASER, col. 478.

Claim against Government of South Australia-Damage to wheat delivered under Wheat Harvest Acts.-See NEGLIGENCE, col. 340.

Building contract-Work found defective— Damages. See BUILDING CONTRACT.

DEATH DUTY

See STAMP DUTY.

DEATHS BY ACCIDENT COMPENSATION ACT (N.Z.)

Collision of lorry with train-Death of lorry driver-Negligence.-See NEGLIGENCE, col. 335.

Deaths by accident Compensation Agreement by deceased absolving Crown from liability-Whether made for valuable consideration.-See CONTRACT, col. 70.

a

DEED

Non est factum Misrepresentation inducing execution of document-Person executing able to read contents.-A solicitor, W., knew that the defendant wanted to borrow some money and he proposed to her that she should do so by mortgaging her property. She assented to this. He then told her that before he could do anything it was necessary for her to sign an application for mortgage. He placed before her a document stating that it was an application for mortgage and told her where to sign, and she did sign it in two places. On a loose sheet on the outside were the words " Application for Mortgage," but the document was in reality a mortgage containing a covenant to pay to the plaintiff certain sum on a named date. The defendant saw the page of the document on which she signed, and immediately above her second signature was an ordinary receipt clause. She had signed a mortgage in similar form three months before, the receipt clause of which had been read to her and of which she stated she had understood the effect. In an action on the covenant contained in the deed to which non est factum was pleaded, the jury found that the defendant had delivered the document as her act and deed, but that the defendant had been misled by W. into believing that she was merely signing an application for a loan. On this finding a verdict was entered for the defendant. On appeal, held, that there was evidence on which the jury could find as they did, and that on such finding the plea of non est factum was made out and that a verdict was rightly entered for the defendant. In an action on a deed the plea of non est factum is made out when it is proved that there was an ignorance of the nature and contents of the document, brought about by the misstatements of the person who induced the defendant to sign that deed, but such plea is not made out when the defendant so induced to append his signature to the deed is aware that he is signing a document affecting his property, but is misled as to the extent to which that document affects his property. CANSDELL v. O'DONNELL, 24 S.R. 596; 41 W.N. 160. [New South Wales.]

Held, that the conwere not comment,

The

contained in this article. tents of such an article but statements of fact. If comment is to be defended as fair, it must appear that the facts are truly stated and that the subject matter is of public interest. A plea that the matters were true, and that it was for the public benefit that they should be published, because other newspapers had not done so, cannot be supported, and should be struck out. proceedings in the first action, when the counsel's address was delivered, were not admissible in the second action under the plea of fair comment, as such proceedings were not before the readers to whom the article was published. Where a plea which is obviously false, and under which evidence otherwise inadmissible becomes admissible, is put on, for the purpose of obtaining an unfair advantage, the party so pleading should not be allowed to retain such advantage, and this fact is a sufficient ground for granting a new trial. MYERSON v. SMITH'S WEEKLY PUBLISHING CO., LTD., 24 S.R. 20; 41 W.N. 5. [New South Wales.]

Statement by shire councillor-PrivilegeMalice.-Statements made by a shire councillor at a council meeting about an employee of the council are privileged, and an action for defamation brought in respect of such statements cannot succeed unless it is proved that the councillor, in making them, was actuated by actual malice. SMITH V. PURSER, 6 L.G.R. 149 (Campbell, J.). [New South Wales.]

Action for libel-Nominal damages-Action justified-Certificate for costs.-See COSTS, col. 92.

Medical association-Expulsion of member -Libel-Privileged occasion.-See MEDICAL PRACTITIONER.

DEFENCE

Contract with Department of DefenceAmmunition factory-Defence Act.-See CONTRACT, col. 78.

DESERTED WIVES AND CHILDREN

Maintenance of wife-Order of justicesDisobedience of-Enforcement of, by justiceJurisdiction Discretion Adultery of wife since order-Power of Court of General Sessions Limitation of proceedings-Continuing offence.-Sect. 84 of the Marriage Act 1915 (Vict.) provides that on the hearing of a complaint by a wife that her husband has left her without means of support any two justices shall, if satisfied that she is in fact without means of support and that her husband is able to maintain her or to contribute to her maintenance, make an order directing the husband to pay a weekly or