SETTLED ESTATE.

Petition for sale Settlement-Executory devise Estates in succession.-Real estate was devised to a son by a testator who in a later passage of his will directed "should any of my sons die and not have any children the landed property to return to my family." Held, that the real estate was settled within the meaning of the Conveyancing and Law of Property Act, 1898 No. 17, Part IV., s. 37 (1). In re NIVISON'S SETTLED ESTATE, 41 W.N. 62. [New South Wales.]

Person having powers of tenant for life, sale by Clause in settlement prohibiting sale, whether void. Sect. 117 of the Settled Estates and Settled Lands Act 1915, which makes void any provision in a settlement prohibiting or tending to prevent the sale by a tenant for life of the settled land, applies equally to the case of a provision which would prohibit or tend to prevent the sale by a person having the powers of a tenant for life under s. 124, sub-s. (1) (ix.). In re WARREN'S SETTLEMENT, 1924 V.L.R. 326; 46 A.L.T. 19; 30 A.L.R. 259. [Victoria.]

Consent to application for sale Contingent remainderman Unascertained class.-A testator by his will devised certain houses upon trust for a daughter for life, and after her death (if she left no children or husband) upon trust for such of his children as might then be living and the issue of any deceased child of his as tenants in common in fee simple. Upon petition to sell the settled property it appeared that the tenant for life was a spinster, and that the consent of the testator's son to the application had not been obtained. Held, that the son had a beneficial estate or interest under the will within the meaning of s. 55 (2) of the Conveyancing and Law of Property Act 1898, and that the consent or concurrence of the son to the application was necessary. In re Strutt's Trusts (L.R. 16 Eq. 629) disapproved. In re SIMMONS' SETTLED ESTATE, 24 S. R. 531; 41 W.N. 137. [New South Wales.]

Originating summons-The Trustee Act 1898, s. 55-Practice-Mortgage of settled land The Settled Land Act 1884, s. 16The Settled Land Act 1911, s. 9.-N., the tenant for life under a settlement, sold certain lands to W., and the trustees of the settlement, at the request of N., purchased other lands from W., for the same price as was obtained on the first sale, the result being practically an exchange. N. applied by originating summons for an order authorising the trustees of the settlement to raise by mortgage of the settled land a sum sufficient to pay the costs of the sale to W., and of the purchase from W. Held, that such an order might properly be made. In re READ'S SETTLEMENT, 1922 Tas. L.R. 4. [Tasmania.]

SETTLEMENT.

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Creation of equitable estate in realty-No words of limitation-Estate for life or in feeIntention of settlor-Application to bring land under Real Property Act-Real Property Act 1900, ss. 27, 97.-By an indenture of settlement made in 1841 certain land was granted, etc., to trustees and the survivor of them and the heirs, etc., of such survivors to the uses upon the trusts, etc., thereinafter contained, that is to say, to the use of Samuel Taylor and Mary, his wife . . . for life and then to the use of the said Samuel Taylor's daughters F.T. and H.T., and all and every other the children the said Samuel Taylor shall have by his present wife to be divided between and amongst them the said F.T. and H.T. and such future born children as aforesaid in equal shares and proportions share and share alike as tenants in common, provided always that it shall be lawful for the trustee or trustees at any time or times in the lifetime of the said Samuel Taylor and Mary, his wife signified (sic.) by same deed or deeds duly sealed and attested by them to sell and dispose of the said land," the proceeds to be invested, and I settled by the trustees to the same uses and upon the same trusts and with the same power etc., as are declared concerning the settled land. Held, (1) that the deed conveyed a legal estate in fee to the trustees, and (2) that the settlement showed an intention to give an equitable fee simple in remainder to the children of Samuel Taylor as tenants in common. Hunt v. Korn (24 C.L.R. 1) followed; In re Tringham's Trusts ([1904] 2 Ch. 487); In re Whiston's Settlement ([1894] 1 Ch. 661); In re Bostock's Settlement ([1921] 2 Ch. 469) discussed. In re S. R. LORKING, 41 W.N. 79. [New South Wales.]

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Construction-Gift of contingent future interests-Divesting Gift to issue Meaning of "issue."-By a settlement made between H. and E., his wife, it was provided that the income of the settled property should be paid to E. for life, and that in the event of the death of H. in the lifetime of E. and her subsequent decease without issue the trustee was to divide the settled property equally amongst the brothers of H., namely, T., P., A., W.. J., and C., share and share alike, but in the event of any or either of them dying before "the vesting of the last declared trust " and leaving a widow, such widow should have her deceased husband's share, and in the event of any or either of the brothers dying without a widow but leaving issue, such issue should have the share of the deceased parent, and if more than one equally. H. died on 16th December, 1913, and E. died on 21st June, 1921, without issue. Held, that the gift to the brothers was a gift to them nominatim of a transmissible contingent future interest and could only be divested on death leaving a widow, or without leaving a widow but leaving issue before the death of the life tenant. The brother W. died on 30th March, 1917. His wife predeceased him, but he left

three children surviving him and five grandchildren of a son who predeceased him. Held, that the word "issue was not limited

to children but included remoter issue, and accordingly the children of W. who survived him and the surviving children of W.'s deceased son took the share which W. would have taken, the children of the deceased son taking the share which their father, if living, would have taken. In re HENRY SCOTT, 1923 S.A.S.R. 491. [South Australia.]

Infant-Agreement to settle property on marriage-Confirmation by Court-Property Law Act 1908, s. 99.-A female infant, aged 161 years, on her marriage, with the consent of her mother, her father being dead, agreed in writing to settle property of considerable amount, portion of her estate, upon trustees for the benefit ofherself and intended husband for life, and subject thereto for the benefit of the children of the marriage. On arriving at the age of 17, she presented a petition to the Court praying it to sanction the execution of a formal settlement of the property in terms of the agreement. Held, that the Court had jurisdiction to sanction the settlement on being satisfied that the position had been thoroughly explained to the infant. Re UTIERA, 1924 G.L.R. 104. [New Zealand.]

Trustee and cestui que trust-SettlementWill-Realization of shares-Duty of trustee. -See TRUST AND TRUSTEE, col. 466.

And see SETTLED ESTATE.

SHIPPING.

Pur

Bill of lading-Contract-Goods shipped under deck-Transhipment of goods-Dangerous cargo-Goods placed on deck-Condition of transhipment-"On deck at shipper's risk "-Fire on ship Goods jettisoned -Liability of ship owners. Certain wax matches consigned to Western Australia were shipped under deck at London on Ship A, whose destination was, to the knowledge of the shippers, the port of Singapore. suant to liberty contained in the bill of lading the goods were transhipped at Singapore to ship B. for carriage to Fremantle-ship B. receiving them subject to a stipulation that they were to be stowed" on deck at shipper's risk," which was a usual stipulation for cirriage of dangerous goods such as wax matches between Singapore and Fremantle. The matches were necessarily jettisoned between those ports because of a fire on board, and the indorsee of the bill of lading claimed damages for the loss from the owners of both ships. The bill of lading contained (inter alia) the following stipulations : Transhipment of cargo for ports where the ship does not call, or for shipowners' purposes, to be at the risk of the owners of the goods from the time goods leave the ship's deck, where ship's res

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ponsibility shall cease. ... Goods forwarded by steamship or otherwise for shipment or after transhipment to be subject to the conditions and exceptions of the forwarding conveyance, and at the risk of the owners of the goods. This bill of lading shall constitute the contract between the owners of the goods and the shipowners; it shall be construed and governed by English law, and shall apply throughout the transit but always subject to the conditions and exceptions of the carrying conveyance." Held, by Knox, C.J. and Starke, J. (Gavan Duffy, J., doubting) that the effect of these stipulations was that the shipper in the case of transhipment for shipowners' purposes was bound by all the conditions affecting carriage usually required by the forwarding vessel, that the goods were rightly jettisoned, and that the shipowners were therefore not liable. Burns Philp & Co. Ltd. v. W.A. Steam Navigation Co. Ltd. and Ocean Steamship Co. Ltd. (1922 W.A.L.R. 115) affirmed. BURNS PHILP & Co. LTD. v. WEST AUSTRALIAN STEAM NAVIGATION CO. LTD., 33 C.L.R. 135; 30 A.L.R. 36. [High Court.]

Marine insurance-Perils of the sea-Seaworthiness-Ship sinking in smooth sea-Presumption. In an action on a policy of marine insurance, it appeared that the vessel foundered shortly after leaving the port of Newcastle, during fine weather and in a smooth sea. There was no evidence that she encountered any peril of the sea, the cause of her foundering was quite unexplained. There was evidence that the vessel had suffered damage some time previously in Bass Strait whence she sailed to Sydney, was slipped, and, after slight repairs were effected, was pronounced seaworthy. She left Sydney for the Manning River where the parties had agreed all necessary repairs were to be completed, and called at Newcastle for a cargo of coal. The jury found that the vessel was seaworthy when she left Sydney and Newcastle, and returned a verdict for the full amount claimed. Held, that there was evidence on which the jury were entitled to find that the call at Newcastle had been authorised. Further, that the evidence as to the vessel's seaworthiness was not displaced by the presumption arising from the circumstances of her loss, but that it became a question for the jury to decide on all the facts, and the inferences to be drawn from the facts, whether she was or was not seaworthy at the commencement of the voyage, and that the verdict should not be disturbed. Anderson v. Morice (L.R. 10 C.P. 58); Ajum Goolam Hossen & Co. v. Union Marine Insurance Co. ([1901] A.C. 362), and Reynolds v. North Queensland Insurance Co. (17 N.S.W.L.R. 121) applied. W. LANGLEY & SONS v. AUSTRALIAN PROVINCIAL ASSURANCE ASSOCIATION, 24 S.R. 280; 41 W.N. 46. [New South Wales.]

Salvage Amount of reward-Principles

of assessment-Case for substantial awardApportionment.-A steamship, the value of which was £87,000, ran into heavy weather at sea. Her cargo shifted causing a list of

about 40 degrees to port. The master sent out a S.O.S. signal. A tug came to her assistance and stood by her for some hours. When within six miles of the shore in response to a signal from the steamer, which no longer would steer, a line was made fast from the tug, but only after manoeuvring for some time, by the exercise of great skill and judg. ment, and at the expense of considerable danger to the tug and risk to the lives of the crew. But for the assistance of the tug in towing the steamer to safety, the latter would have become a total wreck with a probability of serious loss of life, even if all on board had not perished. The value of the tug was £18,000. The writ claimed £10,000 for salvage services and costs Held, that the case was one for a substantial award, and accordingly that a sum of £6,000 should be awarded, to be apportioned as to £4,000 to the owners of the tug and as to £2,000 to the master and crew in proportions specified. Principles of assessemnt of reward for salvage service and of apportionment of the award discussed. BROWN & ORS. v. THE SHIP HONOLULU MARU," 24 S.R. 309; 41 W.N. 76. [New South Wales.]

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Admiralty-High Court-Jurisdiction-Commonwealth British possession.-The Com monwealth of Australia is a British possession within the meaning of the Colonial Courts of Admiralty Act 1890," s. 2 (1), and the High Court, being a Court with original unlimited civil jurisdiction, is a Colonial Court of Admiralty within the meaning of that Act. The High Court, therefore, has jurisdiction in an action by consignees for damages against a ship for delivery, in a damaged condition, of cargo for which they hold a bill of lading issued by the master. Semble, per Starke, J. The High Court has such jurisdiction also by virtue of the express declaration contained in the Judiciary Act 1903-1920, s. 30A, pursuant to the Colonial Courts of Admiralty Act 1890, and by virtue of s. 30 (b) of the Judiciary Act. Per Isaacs, J., Observations upon the validity of the Judiciary Act 1914, s. 3, purporting to declare the High Court a Colonial Court of Admiralty. JOHN SHARP & SONS LTD. v. THE SHIP KATHERINE MACKALL, THE COMMONWEALTH, 30 A.L.R. 321. [High Court.]

Advances made at request of master for wages and necessaries-Ratification by owners -Master's statutory lien-Shipping and Seamen Act 1908, s. 87.-A person who at the request of the master makes advances for wages of seamen and necessaries of a ship (the master's action being ratified by the owners) is entitled to the benefit of the master's statutory lien in respect of such advances. The extent to which a maritime lien is transferable discussed. RHIND v, ZITA, 1924 N.Z.L.R. 369; G.L.R. 7. [New Zealand.]

ping and Seamen Amendment Act 1909, which provides that a person shall not engage or supply a seamen or apprentice to be entered on board any ship in New Zealand, unless that person is an owner, master, mate or engineer of the ship, or is a superintendent." Accused was employed by the Union Company in repairing coal baskets. He was well known to ships' officers and most of the hands on the steamers visiting Auckland, and when seamen sought engagements they applied to him. For some months past it appeared that officers when applied to sent the applicants to accused. If they came back with a message from him, that they were to be given employment nothing more was said. They got the positions. He received no payment or other remuneration and appeared to have acted good naturedly in getting the men employment. Held, that accused's acts constituted & supply " within the meaning of the Act and he was therefore guilty of the breach charged. Case dismissed under s. 92 of the Justices of the Peace Act, on payment of costs. WILCOX v. GRANT, 19 M.C.R. 98. [New Zealand.]

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Ship-Not registered in New Zealand-Bill of lading-Issued in New Zealand-PillageLiability of agent. Goods were shipped for carriage from Auckland to Dunedin by a ship which was proved to be registered out of New Zealand. A bill of lading was issued in New Zealand by Frankham Ltd., the agent of the ship in Auckland. Under instructions of Frankham Ltd., appellant acted as agent for the ship at Dunedin, and performed the ordinary duties of an agent in receiving and discharging cargo. After discharge of the ship at Dunedin the case containing the goods was found to have been pillaged in the course of the voyage. Held (1) that appellant, having acted as agent of the ship at Dunedin, and there being no evidence to show that the owners had repudiated the appointment, was not entitled to set up the defence that he was not the agent of the ship within s. 7 of the Sea Carriage of Goods Act 1922 at Dunedin; (2) that s. 7 of the Act applied to the case notwithstanding the bill of lading issued in Auckland; (3) that the section must be construed distributively. KEITH RAMSAY v. BING, HARRIS & Co. LTD., 1924 N.Z.L.R. 1230. [New Zealand.]

Bill of lading-Cases in " apparent good order and condition but stained with contents " "Weight, measurement, contents, quality and value unknown "-Goods delivered damaged-Onus.-The bill of lading for 500 cases of dates shipped from London to Port Chalmers, described the goods as shipped in apparent good order and condition, with the qualification 'original cases stained with contents," and contained the clause "weight, measurement, contents, quality and value unknown." The magistrate found as a fact that the cases were landed in a damaged condition and that the damage was due to some external cause, and not to exudation of date juice, or to

any inherent defect in the dates. There was no direct evidence as to the condition of the dates when shipped, but according to respondent's witnesses the fact that the cases were stained by their contents was evidence that the dates were in good order and condition when shipped. The respondent's witnesses who saw the dates shortly after they were landed also said that the damaged condition of the dates was due to water and that the damage had been caused recently. Held, on appeal (1) that if goods were delivered damaged, the shipper in order to establish liability under such a bill of lading must give prima facie evidence either that the goods were shipped in good condition internally, or that the damage resulted from some external cause within the control of the shipowner. The Ida (32 L.T. 541) applied.; (2) the evidence established a prima facie case on which, if not displaced by appellant's evidence, the magistrate was justified in finding that the dates were in good order and condition when shipped, and had been damaged while on board the steamer by water coming from some external source, and that the magistrate on the facts as found by him, was right therefore, in holding the appellants liable for the damage to the dates. COMMONWEALTH AND DOMINION LINE LTD. v. V. J. RATTRAY AND SON LTD., 1924 G.L.R. 301. [New Zealand.]

Sydney Harbour Rates Act-Charges for berthing Wharves.-See SYDNEY HARBOUR TRUST.

War-Requisition of ships - Validity Cause of action.-See FEDERAL LAW.

Officer of vessel of Royal Australian NavyWhether income taxable by State. See TAXATION, col. 444.

Seaman-Total incapacity-Assessment of compensation.-See WORKMEN'S COMPENSATION, col. 522.

Seaman employed at daily wage-Termination of employment-Notice of-Wages. -See MASTER AND SERVANT, col. 320.

Employment of boy on vessel on night watch or attending gangway-Promotion to ordinary seaman-Industrial award.-See INDUSTRIAL ARBITRATION, col. 214.

Industrial arbitration award-Construction -Expenses incurred by master of ship in service of owner-Inquiry as to shipping casualty-Whether due to negligence of master. See INDUSTRIAL ARBITRATION, col. 195.

Regulation of condition of seamen and other employees employed in ships.-See INDUSTRIAL ARBITRATION.

SHIRE.

Noxious plants-Notice by shire council to destroy-Time for instituting proceedings.— See PASTURES PROTECTION.

And see LOCAL GOVERNMENT.

SHOP.

See FACTORIES AND SHOPS.

SLATE QUARRY.

Whether obtaining slate "mining operations."-See TAXATION, col. 440.

SLAUGHTERING AND INSPECTION ACT (N.Z.).

Meat export-Slaughter house-Excessive fees charged and paid-Statutory remedy of appeal to Minister-Common law right of action to recover excess excluded.-Where a Statute creates an obligation not existing at common law and provides a particulaar remedy for enforcing it, no other remedy can be adopted. Principle in Wolverhampton New Waterworks Co. v. Hawkesford (28 L.J.C.P. 242, 246) applied. The only remedy open to a person claiming the benefit of the second proviso of s. 27 of the Slaughtering and Inspection Act 1908 is that provided by s. 27, viz., the right of appeal to the Minister of Agriculture. On such an appeal the Minister can ascertain whether at the end of each year the fees and charges levied for such year were in excess of the prescribed limit, and he can then determine that such reduction in the fees shall be made as is just and equitable. His adjudication in respect of each year will operate retrospectively, and the party whose appeal has been sustained can then recover, upon the basis of the reduced rate of fees, the excess payments made by such party in each year. R. & W. HELLABY LTD. v. AUCKLAND CITY COUNCIL, 1924 N.Z.L.R. 964; G.L.R. 361. [New Zealand.]

SMALL DEBTS RECOVERY.

Magistrate's Court-Parties-Misjoinder of plaintiff-Magistrate's Court Act of 1921— Magistrate's Courts Rules, rr. 200, 111, r. 11, 12.-In an action brought in a Magistrate's Court against the defendant for work done and material supplied, the plaintiffs were desscribed as Scott & McGinness, carrying on business in partnership. The title was amended during the hearing by inserting the word "lately "before the word 66 carrying." The facts disclosed that Scott alone was entitled to payment from the defendant. Hell,

that the magistrate should have allowed amendment of the plaint by striking out the name of the second plaintiff. SCOTT & MCGINNESS v. GILDER, 1924 S.R. (Q.) 24. [Queensland.]

Same case 17 Q.J.P.R. 155; 1923 Digest, col. 230.

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on

Sale of timber-Construction of contractAction for price of timber and breach of contract-Set-off-Magistrate's Court-Payment into Court by defendant-Judgment for defendant for amount not claimed but proved at the hearing-Presumption as to necessary amendments-Magistrates' Courts Rules, rr. 87, 89, 176.-The appellant filed in the Magistrate's Court a plaint in which he claimed £200 damages for breach of an agreement; the respondent filed a defence denying any breach and, on the same day, as amended plaint was filed claiming £184 Os. 3d. damages and £15 19s. 9d. for timber sold. By an amended defence the respondent repeated his defence as to damages and added as to the amount of £15 9s. 9d. claimed for timber sold and delivered, I have paid into Court the sum of £6 11s. 7d. in full satisfaction of the plaintiff's claim, together with £1 0s. 6d. costs up to the time of payment." After the hearing of the case had commenced, the appellant by amendment, claimed £10 for 10,000 feet of ash and white beech cut on plaintiff's land. The magistrate gave findings each of the items specifically raised by the pleadings, and in the aggregate on those items awarded £14 16s. 5d. to the appellant. But he also found that the respondent was entitled to a sum of £15 for his work in cutting certain other timber on the appellant's selection. There was evidence to support that finding, but the respondent had not made any claim therefor by counterclaim or set-off, and did not formally apply for any amendment raising his rights in regard thereto, and no such amendment was made. The magistrate took the £15 into account and set it off against the above sum, which he decided was owing to the appellant, and gave judgment for the respondent for the balance, viz., 3s. 7d. Held, that it must be assumed that the magistrate gave leave to make all necessary amendments for the purpose of raising for determination all the matters really in controversy, and that such amendments had been made. Held, that as the plaintiff had litigated all matters in dispute and had not exercised his right to take out the money paid into Court he was not entitled, in all the circumstances, to that money, and, held, on the evidence, that the decision of the magistrate was substantially correct and that the appeal should be dismissed. STRELNIKOFF v. SHEPPERSON, 1924 S.R. (Q.) 58; 18 Q.J.P.R. 11. [Queensland.]

Magistrate's Court-Practice-Cases under £10 Equity and good conscience-Effect of Statute Appeal-Right to appeal-Principles regulating decision of Appellate Court-The Magistrates' Courts Act 1921 (12 Geo. V. No. 22), s. 10 (1).—WALTER REID & Co. Ltd. v. MURPHY, 1924 S.R. (Q.) 1. [Queensland.]

Same case: 17 Q.J.P.R. 161; 1923 Digest,

col. 407.

Order to pay out of specific fund-Whether Statute barred-Whether order admissible unless stamped.-See LIMITATIONS (STATUTES OF).

Action in Magistrate's Court-Discontinuance Costs payable by plaintiff.-See JusTICES, col. 248.

Complaint in Court of Petty Sessions for contract price for work and labour doneWork not completely done.-See CONTRACT, col. 79.

SOLDIER.

See RETURNED SOLDIERS AND SAILORS.

SOLICITOR.

See LEGAL PRACTITIONER.

SPECIFIC PERFORMANCE.

Before

Option to purchase-Consideration paid for option--Death of person to whom option given -Exercise of option by personal representative -Specific performance Unconditional acceptance-Laches.-The defendant, who was in occupation of a hotel under an agreement with the owner for a lease of it for five years, signed a document by which, in consideration of £1 paid to him by the owner, he placed under offer to the owner the lease, license, furniture and goodwill of the hotel for a certain sum, and agreed that this offer should not be revoked by him for a period of three months. the three months had expired the owner died without having executed any lease of the hotel to the defendant and without having accepted the offer. Held, that upon the acceptance in writing of the offer within the three months by the personal representatives of the owner there was a valid contract for sale, specific performance of which could be enforced by the personal representatives. In the letter by which the personal representatives pur. ported to accept the offer, it was described as an option to sell the lease, license, goodwill and furniture as per inventory dated the date of the letter. Held, that the reference to the inventory did not make the acceptance conditional. Held, also, that a delay of about eight months after the acceptance of the offer before the personal representatives brought their action was not in the circumstances of the case laches on their part. Hyde v. Carter ([1922] 23 S.R. (N.S.W.) 125; 39 W.N. 264) affirmed. CARTER v. HYDE, 33 C.L.R. 115; 24 S.R. 340. [High Court.] Same case : 29 A.L.R. 430; 1922 Digest, col. 409.