The plaintiff then took action to recover the sum of £170 12s. 9d. being the price of 600 sleepers at £5 17s. per load and £66 5s. 3d. the price of 274 sleepers at £5 5s. per load, all of which sleepers he alleged he had sold and delivered to the defendant. Alternatively the plaintiff claimed the same sums for sleepers bargained and sold to the defendant, and as a further alternative claimed the sum of £39 8s. 9d. damages for non-acceptance of the sleepers. The plaintiff having recovered judgment on his claim for £236 18s. for goods sold and delivered, the defendant appealed. Held, (1) that there was a sufficient delivery acceptance and part payment of the goods to satisfy s. 4 of the Sale of Goods Act 1895; (2) that there was no assent by the defendant to the appropriation of the goods to the contract and the terms of the contract, the conduct of the parties and the circumstances of the case showed that it was not intended that the property should pass until the sleepers had been delivered and inspected. As before that event there was a breach of the contract by the defendant, the plaintiff was entitled to damages for breach of contract and was not entitled to the price of the goods. BINGHAM RIVER TIMBER Co. LTD. v. JOHNSON, 1923 W.A.L.R. 106. [Western Australia.]

Sale by sample-Goods not corresponding with sample-Right of rejection.-The written contract between the parties provided that defendants hereby agree to purchase the output of opossum skins of the 1923 season held by Messrs. Meyer and Clifton at the rate of 5s. 6d. per skin, net." A clause in the contract making it subject to very small or damaged skins being purchased at a valuation, had been struck out and initialled by the plaintiffs' and defendant's agent. The agent agreed to the clause being deleted after inspection of the skins then in hand which were of good quality, on the assurance of plaintiffs that there would be no small or damaged skins. After plaintiffs had given this assurance the agent paid the plaintiffs £15 each and the skins were to be forwarded to Wellington when the catch was completed; 961 skins were forwarded on the 22nd August. On arrival the skins were inspected. Only a small percentage were up to quality, and of the balance some were of small value and some were worthless. On the 29th August defendants notified plaintiffs that they intended to reject the skins as not being up to the quality warranted. On a claim by plaintiffs for £200 balance of money due under the contract and counterclaim by defendants for the £30 paid to plaintiffs, held, that the sale was a sale by sample and was governed by s. 17 of the Sale of Goods Act, 1908; that, therefore, as the skins delivered did not correspond with the sample inspected defendants were entitled to reject them, when after inspection they were found to contain such a proportion of small and damaged skins as to constitute failure of performance on the part of the plaintiffs, and that no property in the skins passed on payment of the £30 paid after

the agreement was signed. CLIFTON AND MEYER v. CHURCHWARD AND CO., 19 M.C.R. 15. [New Zealand.]

Contract-Sale by description—Trade nameMercantable quality-Rejection.—The plaintiff purchased from the defendant a new Calthorpe motor car. He took possession of it, and after using it frequently for over three months he brought an action against the defendant asking for rescission or damages on the ground of the fraudulent misrepresentation that the car was new, or, alternatively, on the ground of breach of the implied statutory conditions of merchantable quality and of reasonable fitness for the purpose for which the car was bought. Held, (1) that the charge of fraud had not been sustained; (2) that the sale of a motor car under the name by which cars of that type were known in the market was the sale of a specified article under its trade name within the meaning of the Sale of Goods Act, 1908. Bristol Tramways Co. v. Fiat Motors ([1910] 2 K.B. 831) distinguished; (3) that the sale of a specified article was a sale by description within the meaning of s. 15 and s. 16 (b) of the Act, in SO far, but SO far only, as the article was expressly sold as being of a certain kind, class, or species, but that statements made as to the quality or other unessential attributes of the articles sold were not part of the description, but were merely representation and inoperative unless fraudulent, or unless on the true construction of the contract those statements amounted to an express warranty or condition; and that therefore the sale of a specific article by description in this sense imported, under s. 16 (b) an implied condition that the article was of merchantable quality under the description so given, meaning that it was of such quality as to be saleable under that description to a buyer who had full and accurate knowledge of that quality, and who was buying for the ordinary and normal purposes for which cars were bought under that description in the market; (4) that the plaintiff had no right to reject and return the car, but that he was entitled to damages to the extent of the difference in the value of the car at the time he purchased it and the value which it would have possessed had it actually conformed to the warranty of fitness and merchantable quality. TAYLOR v. COMBINED BUYERS LTD., 1924 N.Z.L.R. 627; G.L.R. 51. [New Zealand.]

Sale of second-hand motor car-Plaintiff not holding license Whether motor cars "articles under the Second-hand Dealers' Act-Whether Contract illegal— Payment by instalments-Breach of warranty -Failure to pay instalments-Recovery of purchase money. The plaintiff company sold a second-hand motor car to the defendant, a sum of £50 being paid down, the balance of purchase-money being payable by reasonable instalments at reasonable intervals spread over two years. After payments of one instalment the purchaser claimed that there has been a breach of warranty, and failed to pay any fur

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ther instalments. In an action for the balance of the purchase money, held, (1) that it was not the intention of the legislature to include as articles" under the Second-hand Dealers Act 1908, machines of the nature of motor cars, and that it was not necessary for a person dealing in second-hand motor cars to hold a license under that Act; (2) that the plaintiff was entitled to judgment for such an amount as would represent the amount of the instalments that should have been paid up to the date of the issue of the writ. NEWTON KING LTD. v. WHITCOMBE, 1924 N.Z.L.R. 517; G.L.R. 11. [New Zealand.]

Specific performance-Agreement to give security over motor car-Sale and delivery of— Deposit paid-User by defendant-Liquidation of defendant company-Companies Act 1908, s. 130.-In May, 1922, the plaintiff agreed to sell and the defendant to purchase a motorcar and accessories for £1,200, of which £100 was to be paid on delivery and the balance by monthly instalments. The agreement was made orally and it was a condition that the defendant should give security over the motor for the unpaid balance of the price and interest. The motor was duly delivered and the £100 paid. On the plaintiff sending the defendant a bill of sale for execution, the defendant refused to execute same on the ground that all the accessories had not been delivered. The motor remained in the possession of the defendant and it was used in the latter's business. In the following March the plaintiff took complete possession of the motor on the defendant's premises, the defendant being in default in not paying the monthly sums. Shortly afterwards the defendant company went into voluntary liquidation, and the plaintiff, at the liquidator's request, withdrew from possession upon the terms that the plaintiff should not be prejudiced by the withdrawal, and that for the purpose of determining questions arising between the parties the plaintiff should be deemed in possession of the car. Held, that the chattels subject to the security must be restored to the possession of the plaintiff. N.Z. SERPENTINE CO. LTD. v. HOON HAY QUARRIES LTD., 1924 G.L.R. 633. [New Zealand.]

Sufficient memorandum-Parol evidence to identify subject matter-Specific goods— Whether parol evidence admissible to contradict written document-Acceptance and receipt. In a written contract of sale, the subject matter was described as about 500 Romney-cross lambs more or less bred at Deep Stream. It was proved in evidence that the real contract between the parties was a contract for the sale of the wether lambs, estimated at about 500, the progeny of the vendor's 1,550 Romney ewes now depasturing on his run at Deep Stream." In an action brought by the vendor for breach of contract the defendant pleaded non-compliance with the provisions of the Sale of Goods Act 1908, s. 6. It was contended for the plaintiff that oral evidence was admissible to identify the subject matter of the written contract as being the male progeny of the

"

plaintiff's Romney ewes at Deep Stream-that is the subject matter of the real agreement between the parties. Held, that the evidence was inadmissible. Specific," as applied to goods, includes the unascertained product of what is specific, and is not confined to actually existing goods: Howell v. Coupland (LR. 9 Q.B. 462); 1 Q.B.D. 258; Halsbury's Laws of England, vol. xxv., p. 122, note (c). The defendant, having visited the plaintiff's run and inspected the lambs, said immediately that they had been starved and that he would not take them. Held, that this did not constitute a receipt" of the lambs within the meaning of the Sale of Goods Act 1908, s. 6, and, quaere, whether it was an acceptance." Taylor v. Smith ([1893] 2 Q.B. 65), and Abbott & Co. v. Wolsey ([1895] 2 Q.B. 97) referred to. LISTER V. MUNRO, 1924 N.Z.L.R. 1137; G.L. R. 620. [New Zealand.]

Goods of value of ten pounds or upwardsVerbal contract-Contract with CrownWhether Crown bound--Pleading.-The Crown is bound by the provisions of s. 9 of the Goods Act 1915. The Sydney Harbour Trust Commissioners v. Ryan ([1911] 13 C.L.R. 358) applied. R. v. Lady Portington ([1693] 1 Salk. 162) discussed. Where a defence alleges that one J.S.H. as agent for His Majesty," entered into a certain agreement, a mere joinder of issue will not entitle the plaintiff to contend at the trial that the alleged agent had no authority to contract. R. v. HAY, 24 V.L.R. 97; 45 A.L.T. 123; 30 A.L.R. 88. [Victoria.]

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Contract Auction - Sale of sheep — Conditions of auction-Dispute between two or more bidders-Powers of auctioneer-Duty to put up lot for re-sale.-One of the conditions announced by the auctioneer at an auction sale of sheep was that the highest bidder should be the purchaser, and that should any dispute arise between two or more bidders the lot or lots should be put up and resold. The plaintiff and one K. each made a bid of 21s. 1d. per head for a lot submitted for sale. The plaintiff's bid was not observed by the auctioneer, who knocked the lot down to K. The plaintiff immediately protested, and demanded that the lot be put up for resale, and offered to bid higher, but the auctioneer refused to resell, and declared K. the buyer. Held, (1) that the condition as to resale related only to disputes about the right to become, or the liability to become, the purchaser, and that the bidders mentioned in the condition might be bidders each of whom claimed to be either the highest bidder or a bidder equal to any other, and in the latter case claiming to be the first of the equal bidders, and that a contractual obligation arose on the part of the auctioneer towards any bona fide disputant of the class thus defined, the obligation being, where the property had been knocked down as sold, to put it up again for resale. Warlow v. Harrison ([1858] 1 E. & E. 295) applied; (2) that there was no legal warrant for reading into the condition a proviso to the effect that the question whether any claimant is or is

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not a bona fide disputant, that is, whether he did or did not make the bid which he says he made, should be finally decided by the auctioneer, and that the condition contemplated that the bona fides no less than the merits of the disputants should be promptly submitted to the practical test of a fresh auction. Green v. Rose ([1900] 21 N.S.W.L.R. (Eq.) 226) discussed. ULBRICK v. LAIDLAW, 1924 V.L.R. 247; 45 A.L.T. 164; 30 A.L.R. 199; [Victoria.]

Auction sale advertised as "pedigree stock sale ❞—Bull purchased at sale-Warranties expressly negatived-Bull proves to be sterile -Action for damages-Sale of Goods Act 1908, ss. 15, 16.-At an auction sale advertised as a pedigree stock sale," the respondent purchased from the appellant a bull described in the sale catalogue, under the heading Jersey Bulls," as "Lot 48, Bull, Harbour Light.' The conditions of sale expressly negatived the existence of any warranties on the part of the vendor. At the time of the sale the bull had not been used, but subsequently it was found to be sterile. This condition was shown to be a latent defect not discoverable upon examination. Held (1) that the sale in question was a sale of specific goods by description; (2) that, as it was not shown to have been necessarily within the contemplation of the parties to the sale that the vendor should be responsible if the bull proved to be sterile, it could not be held to be inferentially a part of the description that the bull should not be sterile; (3) that, as the capacity for procreation was not, by implication, a part of the description, and as the bull complied in all other respects with the description, the respondent purchaser was without remedy. Cotter v. Luckie (1918 N.Z.L.R. 811; G.L.R. 582) discussed and distinguished. Wallis, Son & Wells v. Pratt & Haynes ([1910] 2 K.B. 1003; [1911] A.C. 394) discussed and applied. DELL v. QUILTY, 1924 N.Z.L.R. 1270; G.L.R. 249. [New Zealand.]

Sale of chattel by person not the ownerChattel not in vendor's possession-Delivery, what amounts to-Licence to buyer to take possession-Action for conversion.-A., think. ing himself the owner of a motor car, which really belonged to C., sold it to B. The car was at the time of sale in C.'s possession, but A. told B. that he could go and take it from where it stood, and B. did so. In an action by C. against A. for conversion, held, that A. was liable either on the view that there was not a mere sale, but, in addition, something which in the circumstances was equivalent to delivery by him, or in the view that he was sufficiently connected with the conversion to make him a party to it, the taking of the car by B. being not only the natural and reasonable, but the direct and intended, consequence of A.'s action. FoSTER บ. FRANKLIN, 1924 V.L.R. 269; 46 A.L.T. 2 ; 30 A.L.R. 223. [Victoria.]

Sale of timber-Construction of contract— Action for price and breach of contract—

SEDITION.

Arrest for sedition Summons to appear before board under Immigration Act-InJunction. See CONSTITUTIONAL LAW.

SEPARATION DEED.

See HUSBAND AND WIFE.

DESERTED WIVES AND CHILDREN.
DIVORCE.

SERVICE AND EXECUTION OF PROCESS.

District Court summons-Service out of jurisdiction-Jurisdiction of Court.-The District Court has no power under s. 12 of the Interstate Debts Recovery Act to endorse a summons for service out of the jurisdiction, unless it has power apart from that Act to issue a summons in the given case. Ex parte ST. LUKE'S PRIVATE HOSPITAL ; Re FALCKE, 41 W.N. 66. [New South Wales.]

Practice-Service out of jurisdictionBritish corporation Service permissible.— The Court may, under the Supreme Court Act 1922, allow service of a writ of summons on a British corporation out of the jurisdiction. Moore v. Moodyville Lands and Saw Mills Co. Ltd. (26 V.L.R. 226) referred to. FINCH v. POND & THE HARRISON PATENT KNITTING MACHINE CO. LTD., 1924 V.L.R. 411; 46 A.L.T. 33; 30 A.L.R. 298. [Victoria.]

Practice Service out of jurisdiction-Breach in N.S. Wales of contract made in VictoriaLeave to issue writ and to serve in N.S. Wales -Liberty to take further proceedings-How granted-Form of application - Supreme Court Acts-Execution of Process Acts.-In an action for damages for breach of a contract made in Victoria, such breach not having occurred within Victoria, where it is intended to serve the writ in any part of the Common. wealth the practice laid down in Priestly v. Davis ([1884] 6 A.L.T. 18) may be followed. No leave to issue is required beyond what is implied by the insertion in the proposed writ and copy thereof of a number of days for appearance, and no leave to serve is necessary, because that is given by s. 4 of the Service and Execution of Process Act 1901, which Act is in such a case applicable, but the plaintiff should, if there is a failure to appear, again apply under s. 11 of that Act to the Court or a Judge for liberty to proceed. An intended plaintiff in a proposed action for damages for breach in New South Wales of a contract made in Victoria applied to the Judge that there should be inserted in the blanks provided for that purpose in the proposed writ and copy thereof such number of days for appearance as the Judge should think

fit, having regard to the fact that it was intended to serve the writ in New South Wales, and that the Judge should initial the insertions. This case is not provided for by the rules contained in the Schedule to the Supreme Court Act 1922, but is within the provisions of s. 11 of the Service and Execution of Process Act 1901-1912. Held, (1) that the practice which had been followed under s. 141 of the Supreme Court Act 1915 should be adhered to and that the number of days for appearance might be determined by the Judge without any affidavit, and that no formal order should be drawn up; (2) that as the time limited for appearance being entered pursuant to s. 5 of the Service and Execution of Process Act 1912 is at least twenty days after service. there should be provided in the writ a period of at least twenty-one days, inasmuch as the writ warned the defendant to appear in a number of days inclusive of the day of service. Channon-Marshall, etc., Tyres Ltd. v. Kalgoorlie Brewing, etc., Co. Ltd. (1923 V.L.R. 630) referred to. MCCOLL V. PEACOCK, 1924 V.L.R. 102; 45 A.L.T. 107; 30 A.L.R. 45. [Victoria.]

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Company-Winding up-Summons to contributories who had not paid-Service by post-Service on contributories in other States. A petition for the winding up of a company under Part I. of the Companies Act 1915, initiates a suit" within the meaning of s. 3 of the Service and Execution of Process Act 1901-1922, and a summons by the liquidator to enforce payment of calls by contributories is a proceeding in the suit, and may, by virtue of s. 14 of that Act, be served in the manner provided by rule 15 of the Rules under the Companies Act 1915 on contributories resident in States of the Commonwealth other than Victoria. Such a summons is not a writ of summons under s. 3 (b) and therefore does not require endorsement as such under s. 5 of the Service and Execution of Process Act. In re AUSTRALIAN UNITED INSURANCE CO. LTD. (IN LIQUIDATION), 1924 V.L.R. 505 46 A.L.T. 70; 30 A.L.R. 358. [Victoria.]

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Magistrate's Court-Notice of appealUpon whom to be served-" Appears by a solicitor.' -Sect. 75 (7) of the Magistrates' Courts Act 1908, which provides that "where a party appears by a solicitor, service of any notice at the office of such solicitor, shall be deemed sufficient service on the said party," should be read literally as authorising service of any notice which may require to be served up to the time when the action and proceedings ensuing upon the judgment are at an end including notices to produce, notices of applications for rehearing under s. 150, and notices of appeal, and a literal construction should be placed on the expression" appears by a solicitor." What is intended is that a solicitor shall be regarded as appearing for a defendant when he has by some overt act made it known to the opposite party that he is authorised to act. That must be so in the case of the solicitor who has taken out the summons, and it equally applies to a solicitor who, with the defendant's

authority, unequivocally acts as his solicitor, and, leaving aside the case where the authority of the solicitor may have been withdrawn and notice of the withdrawal given to the other side, where a solicitor has so acted he remains by force of the Statute the solicitor by whom the party has appeared at least until the time for appealing is past: Paton v. Wilson (16 G.L.R. 339) dissented from. HUGHES v. MILLER, 1924 G.L.R. 256. [New Zealand.]

Practice Appeal under Part X. of Justices of the Peace Act 1908 against maintenance order under Destitute Persons Act 1910-Notice of appeal served on solicitors acting for respondent in obtaining maintenance order— Service insufficient-Justices of the Peace Act 1908, s. 103. The Queen v. Justices of Oxfordshire ([1893] 2 Q.B. 149) followed. DENTON v. DENTON, 1924 N.Z.L.R. 187. [New Zealand.]

Same caso 1923 G.L.R. 587; 1923 Digest, col. 394.

It was

Execution Sale of land by mortgageeCharging-Order nisi served on Registrar and Sheriff before purchase money paid to him— Whether charging order could be made absolute. Final judgment in this action was signed on the 19th December, 1921, and on the same day a charging order absolute was registered against (inter alia) certain land. The mortgagee of that land caused the same to be put up for sale, through the Registrar, by public auction on the 20th January, 1922. The mortgagee bought in at a price sufficient, after providing for the mortgage debt, interest and expenses, to leave a surplus large enough to satisfy the judgment in this case. arranged between the mortgagee and the defendant (the mortgagor) that the mortgagee should pay the purchase money, or the surplus over and above the amount required to satisfy the mortgagee's claim, to the Registrar of the Supreme Court at Auckland. On the 7th March, 1922, the charging order nisi which it was sought to make absolute was issued. It was served upon the Registrar and Sheriff at 10 a.m. on the date, and the surplus money was paid to the Registrar at 3 p.m. the same day. The land was under the Land Transfer Act. Held, (1) that at the time of the service of the charging order nisi neither the Registrar nor the Sheriff had any money actually in hand belonging to the defendant; (2) that, as the purchase money was not bound to pass through the hands of the Registrar, there was not a debt or sum of money accruing due. Webb v. Stenton (11 Q.B.D. 518) followed; (3) that, although the purchase money was actually in the hands of the garnishee (the Registrar and Sheriff) before the application of the order absolute came on for hearing, the plaintiff, in order to succeed on his motion to make the order absolute, must show that the garnishee had money in hand standing to the credit of defendant at the time that the order nisi was made. Hetherington v. Driscoll (17 V.L.R. 356) followed. ANDREWS v. FARMER, 1924 N.Z.L.R. 504. [New Zealand.]

Practice Memorial of judgment in England filed in Supreme Court (N.Z.)-Issuing execution thereon-Suit upon judgment.-A rule nisi had been granted under the Judicature Act, 1908 s. 56, for leave to issue execution on a judgment of which a memorial was filed in the Supreme Court (N.Z.) Held, discharging the rule, that the Legislature did not mean to allow s. 56 of the Judicature Act 1908 to operate, having regard to the Administration of Justice Act 1922, and that the registration of the judgment could not be enforced, leaving the plaintiff the right of suing on the judgment. CORRY & Co. v. KELWAY & SON, 1924 G.L.R. 327. [New Zealand.]