removed to the proper boundary and he reported that the pegging had been adjusted. The application was called on for hearing on 13th December, and was adjourned to the 17th January. The latest date for filing and serving notice of objection was the 13th January, but the appellant did not file and serve his notice until the 16th January. At the hearing, the Warden overruled an objection to the appellant being heard and granted the application. Held, that an appeal lay from a final judgment of the Warden based on the facts before him, but dismissing the appeal on the ground that the Warden had regarded the spirit and intention of the prescribed provisions and that he was right. Sect. 339 (a) of the Act authorises the Warden to settle a case on appeal only in cases where the parties cannot agree, and on the facts appearing in the judgment the Warden had no jurisdiction to settle a case. MORRIS v. MOORE, 1924 G.L.R. 462. [New Zealand.]

Acquisition of land by Commonwealth for public purposes-What passes-Royal metals -Other minerals.-See RESUMPTION OF LAND.

MISTAKE.

Bigamy-Mistake of law not of factFelonious intent.-See CRIMINAL LAW, col. 104.

Goods delivered in error-Knowledge of person receiving-Conversion-Whether larceny. See CRIMINAL LAW, col. 99.

MONEY HAD AND RECEIVED.

Voluntary payment-Money paid under threats-Wheat Harvest Scheme (S.A.)— Action against Government.-See WHEAT.

Payment out of consolidated fund, N.Z.Absence of statutory authority-Right of Crown to recover.-See CONSTITUTIONAL LAW.

Specially indorsed writ-Final judgment— Leave to defend-Money lender-Excessive rate of interest.-See PRACTICE, col. 357.

MORTGAGE.

Right of redemption-Lease, etc., of hotel– Agreement to finance intending purchaserSecurity of person agreeing to finance-Option therein to purchase from purchaser-Clog on right of redemption Subsequent bill of mortgage and bill of sale-Provisions inconsistent with option of purchase-Effect of the later instruments. By an agreement in writing, called a power of attorney and covenant,' which recited that the plaintiff had agreed to assist the defendant in the acquisition of the lease and license, etc., of a hotel and in the purchase of supplies for the hotel, and to finance her to that purpose, the defendant had appointed the plaintiff her attorney (inter alia) to sell the lease, etc., and attached to the power of sale was a proviso enabling the plaintiff to call upon the defendant at any time during the term of the lease to sell the lease, etc., to him. The defendant obtained the lease, and on the same day executed a bill of mortgage and a bill of sale in favour of the plaintiff; by the bill of mortgage the defendant mortgaged to the plaintiff her estate and interest in the lease, with a right to redeem at any time, and by the bill of sale the defendant assigned to the plaintiff the chattels, etc., in and about the hotel subject to a proviso for redemption or reassignment. Subsequently the defendant discharged her indebtedness to the plaintiff. Later on, the plaintiff called upon the defendant to sell to him the lease, etc., of the hotel in accordance with the agreement above referred to, but she refused to do so. On appeal to the High Court in an action by the plaintiff against the defendant for specific performance of such agreement. Held (1) that if the option of purchase was a distinct and separable transaction, the power of attorney was given as security for the repayment of moneys to be advanced by the plaintiff to the defendant,

and therefore the option of purchase, as it was inconsistent with or repugnant to the defendant's equitable right of redemption, was invalid, and (2) that even if the provisions of the power of attorney could be treated as surviving the execution of the two later documents, the option of purchase was inconsistent with or repugnant to the defendant's contractual as well as her equitable right of redemption, and was therefore invalid. Held, by Knox, C.J. and Starke, J., on the facts, that upon the execution of the two later documents, the document containing the option of purchase ceased to have any effect. Semble, per Isaacs, J.: The documents were in substance all parts of one transaction based on the same negotiation and the same consideration from the plaintiff and dealing with the same subject matter of purchase. Held, therefore, that the action had been rightly dismissed. Baker V. Biddle (1923 S.R. (Q.) 46) affirmed. BAKER v. BIDDLE, 33 C.L.R. 188. [High Court.]

The ap

Detention of mortgaged documents-Action of mortgagee against solicitors-Recovery of principal and interest by action-Further proceedings by mortgagee against mortgagor for principal and interest.—The respondent D. had given to the respondent L. a mortgage over their interest under a will. pellants, who were the mortgagee's solicitors, had the custody of the mortgage deed and other incidental documents, and, being unable to produce them, were sued by L. in detinue. A verdict was recovered for the return of the documents or their value, such value being calculated on a basis that the loss of the documents was equivalent to the loss of the principal and interest secured thereby, together with nominal damages for detention. The appellants, not being able to restore the documents, paid the value so assessed. The respondent L. then instituted proceedings against the respondent D. to recover the principal and interest due under the said mortgage. Thereupon, in a suit against L., the appellants applied to the Supreme Court of New South Wales in Equity for an injunction restraining the respondent L. from receiving any of such moneys or from further proceeding with the said action against respondent D. The motion was dismissed on the ground that the appellants had not established any equitable right to the moneys or any portion thereof. After the dismissal and before the hearing of the appeal therefrom to the High Court, the respondent D. actually paid the money in dispute to the respondent L. Held, that as the object of the appeal and of the application for an injunction was merely to preserve the moneys in dispute in statu quo until the hearing of the suit, and as these had since been paid to the mortgagee by the mortgagor, the appeal should be dismissed without prejudice to the right of the appellants to recover the moneys at the hearing of the suit. Heavener v. Loomes (24 S.R. (N.S. W.) 104) varied. HEAVENER v. LOOMES, 30 A.L.R. 263. [High Court.]

"Re

Covenant to pay interest "free from exchange, income tax and all other deductions " -Discharge of mortgage-Statutory receipt endorsed and registered-Subsequent claim against mortgagor under personal covenant.Under a memorandum of mortgage made under the provisions of the Real Property Act of 1900, the mortgagor covenanted to pay interest "free from exchange, income tax and all other deductions." The mortgagee subsequently executed a discharge of the mortgage over the seal of the company by an endorsement in the form prescribed by Sched. 9 of the Real Property Act, ceived. in full satisfaction and discharge of the within obligation," and handed back to the defendant the certificate of title. In an action brought by the mortgagee to recover from the mortgagor monies paid by the mortgagor as income tax, partly to the State and partly to the Federal Government, in respect of instalments of interest paid under the mortgage, Gordon, J., held that the mortgagee was not entitled to recover the amount paid as income tax to the State, but that he was entitled to recover that paid to the Federal Government, and being further of opinion that the mortgagee was not estopped by the discharge from making his claim, returned a verdict for the amount so claimed. The Full Court (Campbell, J., dissenting) being of opinion that the endorsed receipt operated as a discharge not only of the land but also of the personal obligations of the mortgagor under the mortgage, upheld the appeal without discussing the other points raised. GROONGAL PASTORAL Co. v. FALKINER, 24 S.R. 122; 41 W.N. 26. [New South Wales.]

Fixture Mortgagor and mortgagee-Milking-machine steam-engine and boilerWhether fixture passing under mortgageWhether mortgage an instrument under Chattels Transfer Act.-OFFICIAL ASSIGNEE OF ADAMS v. DRYSDALE, 1924 N.Z.L.R. 321. [New Zealand.]

Same case: 1923 G.L.R. 603; 1923 Digest, col. 303.

Will-Release of debts due-Mortgage debt -Mortgage property sold to third party subject to mortgage Discharge of mortgage.—Testator by his will, released under W. certain debts. At the time of his death testator was the registered proprietor of a mortgage given by W. over certain freehold property to secure the sum of £750, of which the sum of £700 was then owing. Prior to the death of testator, W. had sold the said property to F. subject to the said mortgage. Held, that the release of the debt to W. operated as a release of any security held in respect of such debt, and that F. was therefore entitled to have the mortgage discharged. Cowper v. Green (7 M. & W. 633) followed. SMITH V. FRANCE & ATTORNEYGENERAL, 1924 N.Z.L.R. 462; G.L.R. 326. [New Zealand.]

Land under "Real Property Act "Notice by first mortgagee to pay off-Tender by second mortgagee and demand of transfer

of security-Dispute as to amount owingSummons for redemption JurisdictionStatute Construction.- Inasmuch as the Real Property Act is silent with regard to the means of adjusting the rights of successive mortgagees, ordinary equitable principles are applicable. Where, therefore, the first mortgagee has given notice under s. 53 of the Real Property Act (25 Vic., No. 16) requiring payment of the money owing on the mortgage, a second mortgagee is entitled on payment of the amount to a transfer of the security; the objections to a transfer of the mortgage security which formerly existed where the mortgaged land was held under the general law have no application to such a case. Sect. 3 of the Equity Procedure Act, No. 4 (57 Vic., No. 13), is of general application and extends, inter alia, to the redemption of lands mortgaged pursuant to the Real Property Act. Held, therefore, that upon refusal by a first mortgagee to accept the amount named in a notice given pursuant to s. 53 of the Real Property Act and to transfer the memorandum of mortgage to the second mortgagee, the second mortgagee was titled to take out a summons at chambers for the usual accounts and for redemption of the security. GUNN v. COMMONWEALTH BANK OF AUSTRALIA, 1922 T.L.R. 26. [Tasmania.]

en

Mortgages Extension Acts-Effect ofExercise of power of sale-Notice under s. 5 of Act of 1919-Failure by mortgagor to give notice of objection. Sect. 11 of the Mortgages Extension Act 1919, cannot be used as a substitute for s. 7 which was repealed by the Mortgages Extension Act 1921, and therefore, since the repeal of s. 7, where a mortgagor has neglected to give notice of objection within two months from the time the mortgagee has sent the mortgagor the notice required by s. 5 of the Act of 1919 the Court cannot give him relief on a motion for relief under s. 11. MEEHAN v. HARRIS, 1924 G. L. R. 200. [New Zealand.]

Covenant Construction Joint and several-Liability under-Covenant by mortgagors on demand to pay to the mortgagee all moneys owing-Conduct as affecting construction Provision for better securing the principal, interest and other moneys secured by the mortgage-Power of attorney-Deed of guarantee given by attorney-Whether void. Two persons (mother and son), who were registered as proprietors of an estate of leasehold in certain lands upon which they were carrying on in partnership the business of sheep farmers, mortgaged their interest in the lands to the appellant company by a memorandum of mortgage containing (inter alia) the following provisions: "The mortgagors do and each of them doth hereby covenant with the mortgagee in manner following: That the mortgagors will, on demand, pay to the mortgagee all and every sums and sum of money that may at the time of making such demand be due owing or payable by the mortgagors or either of them to the mortgagee on any account whatsoever. And for the better securing to the

mortgagee the repayment in manner aforesaid of all principal, interest, further advances, and other moneys hereby secured or intended so to be, they, the mortgagors, do and each of them doth hereby mortgage to the mortgagee all their estate and interest in the lands above described." Held, by the Court of Appeal, (1) that in a case such as this where the language was plain the intention of the parties must be ascertained from that language and not from the course of conduct after the mortgage was executed and that the covenant was joint and several, with all the incidents of such covenant at common law, and must be construed according to its plain language as a joint covenant by both mortgagors, and also as a separate covenant by each of them to perform the whole covenant and every part of it; (2) that assuming the construction of the covenant to be otherwise and that neither mortgagor was personally liable for the separate debts of the other, the separate debts of each mortgagor were included in the charge created by the mortgage and the company was entitled to retain out of the moneys received on realisation of the security the amount due to it by the son, which was considerably in excess of the surplus of those moneys after payment of the secured partnership debt. An attorney purporting to act under a power of attorney, which is set out hereunder, and which gave him very wide and general powers executed in the name of his principal a deed of guarantee by which his principal became surety to the appellant company for all liabilities not exceeding £11,200 then or thereafter to be incurred in respect of the purchase or management of a certain freehold property belonging to the principal's son. Held, by Salmond, J., in the Supreme Court (the Court of Appeal not expressing an opinion on this point) that the power of attorney gave the attorney unrestricted authority to do on behalf of his principal anything whatever in connection with his principal's affairs in New Zealand, but that notwithstanding the generality of the power of attorney, the guarantee must be regarded as ultra vires unless it was given in connection with the principal's affairs, and that on the facts it was not so given. DALGETY & Co. LTD. v. TULLOCK, 1924 G.L.R. 573. [New Zealand.]

Interest in arrear-Interest at higher rate reducible on punctual payment-Right to recover the higher rate.-The Mortgages Extension Act 1919, which repealed all previous legislation on the subject, provided by s. 4 (c) that all restrictions on the right of a mortgagor to sue for payment of interest were done away with and that a mortgagee was entitled to demand and sue for any penal rate of interest which accrued in terms of any covenant or condition. This right is not affected by the provisions of s. 9 of the Mortgages and Deposits Extension Act 1921, and therefore, where a covenant in a mortgage provided for payment of interest at eight and a half per cent., followed by a proviso for reduction to six and a half per cent. on prompt payment, it was held that the rate of interest

Driving motor car on left or near side of road-Motor car driven by short cut-Whether offence committed-"For the purpose of such passage "-Motor Car Act 1915, s. 15 (1) (a)— Regulation 1918, reg. 3 (4).-The latter part of reg. 3 (4) of the Motor Car Regulations 1918 imposes an absolute liability upon the driver of a motor car at all times to keep the motor car on the left or near side of the road, and it is not limited in its operation to cases in which his failure to do so did in fact hinder or interrupt the free passage of traffic on the

road. MILNE v. DUGGAN, 1924 V.L.R. 224; 30 A.L.R. 181. [Victoria.]

Driving motor car- —“ Negligently in a manner dangerous to the public "-Information Duplicity Justices Act 1915, s. 155-Amendment.-An information charged the defendant with having, contrary to s. 10 (1) of the Motor Car Act 1915, driven a motor car on a public highway" negligently in a manner which was dangerous to the public having regard to all the circumstances of the case. Held, that the words in a manner which was dangerous to the public " qualified the word " negligently " and did not allege an offence distinct from that of driving negligently, and accordingly that the information was not bad for duplicity. Kane v. Dureau (33 A.L.T. 15) approved ; Chammen v. Gilmore (36 A.L.T. 45) disapproved. Semble, the information, and the conviction which was recorded in the terms of the information could if necessary have been amended by the Court on an order to review. MACKAY ". MAY, 46 A.L.T. 61; 30 A.L.R. 328. [Victoria.]

Sale of second hand motor car-Plaintiff not holding license-Whether motor car "article."-See SALE OF Goods, col. 396.

Sale by description-Trade name-Merchantable quality-Rejection.-See SALE OF GOODS, col. 396.

Motor lorries-Interpretation.-See INDUSTRIAL ARBITRATION, col. 211.

Indecent act in motor car-Whether in "public place."-See POLICE OFFENCES.

MUNICIPALITY.

See LOCAL GOVERNMENT.

NATIVE LAND.

Land transfer-Assurance fund-Refusal of registrar to register partition-Registrar ordered to register-Costs.-A District Land Registrar refused to register a certain partition order in respect of Hinewhaki No. 3 block on the ground that it had been made in favour of successors for whom no succession orders had been registered. A summons was then issued under s. 200 of the Land Transfer Act calling upon him to substantiate and uphold his refusal. It was held by the Court (1923 N.Z.L.R. 353; 1922 G.L.R. 591; 1923 Dig. col. 312), that the Registrar was not entitled to refuse registration of the partition order. On an application for the payment of the costs of the party issuing the summons out of the assurance fund. Held, that the case was one of general importance involving an important question of law, and that the costs of the summons should be paid out of the assurance fund. In re HINEWHAKI No. 3 BLOCK, 1924, N.Z.L.R. 491; G.L.R. 2. [New Zealand.]

... native land . . . shall be deemed to be an alienation of that land unless the thing so sold or agreed to be sold shall have been severed from the land before the making of the contract." Prior to that enactment there was no provision that alienations of timber were not permissible, and s. 26 of the Maori Land Claims Adjustment and Laws Amendment Act 1907, is not effective for that purpose, nor does it operate as a statutory declaration that alienations of timber, unless confirmed, are invalid. By deed of January 1904, made between the native owners of a certain block of land (amongst whom were the plaintiffs) and the Puketapu Sawmilling Co. the company undertook within twenty-one years to fell and remove the timber on the block and to

pay the owners certain royalties. The benefit of this deed, which had not been confirmed by the Native Land Court or the Maori Land Board, was duly assigned to the defendants, who for many years had carried out its provisions. Plaintiffs sought to restrain defendants by injunction from entering the land and cutting and removing timber. Held, (1) that, as there was an agreeeent to sever the trees the deed operated as a sale of goods. Howe v. Waimiha Sawmilling Co. (1921 G.L.R. 35; 1920 N.Z.L.R. 681) followed; (2) that the right conferred by the deed to enter on the land for the purpose of felling and removing the trees was merely ancillary to the sale of the timber, and was not an interest in land within s. 117 of the Native Land Act 1894, that, even if such right had not been expressly conferred, the sale of the timber to be cut and removed would of itself have conferred on the purchaser an irrevocable right to enter, cut, and remove the trees. Jones v. Tankerville ([1909] 2 Ch. 440) referred to. Plaintiffs' application failed, the interim injunction was dissolved and an inquiry allowed as to damages sustained by defendants by the granting of the injunction thereof. HIRA TE AKAU v. THE PUKEWEKA SAWMILLS LTD., 1924 G.L.R. 342; N.Z.L.R. 615. [New Zealand.]

Investment of proceeds of native landCharging against order against-Powers of board. The object of s. 92 of the Native Land Amendment Act of 1913 is to enable the native land board, when a native has sold land which was protected against alienation, voluntary or involuntary, to pay the purchase money over to the native or to keep it deposited for his benefit, or to invest it for his benefit, while, in each case keeping it protected, and therefore where it directed the solicitors for a native with her consent to allow a portion of the proceeds of sale of native land to be invested in the purchase of land under an arrangement with the solicitors that the deeds thereof were, after registration of the transmission to the native, to be forwarded to the board's office for custody, which was actually done, and the native died since judgment was recovered in this action against her by the plaintiff, and the latter applied to the Court for leave to issue execution, which was in effect an application for a charging order under the general rules 314 and 346, the Court granted the order, allowing the registration of a charging order nisi, as the above mentioned, s. 92 does not contemplate the purchase of land as an investment. Fox v. HARIATA KARANAMA, 1924 G.L.R. 233. [New Zealand.]

Power of Native Land Court to determine provision to support of aged aboriginal"In equity 99 -Construction of Statute.-See STATUTE, col. 424.

Agreement by native lessor to accept lesser sum in payment of rent-Disposition of rentPayment of third person.-See LANDLORD AND TENANT, col. 264.