he made a gift of it to his wife. H. paid the vendor £50 in January, £25 in April, £100 in June, 1917, and of these sums £50 and £25 were trust moneys, and £100 was drawn from H. No, 1 account, in which trust money and money of H. were at the time of payment mixed, for during that month both trust money and money of H. had been paid into that account. In an action instituted against H. by the trustees and beneficiaries of M's estate, it was (inter alia) declared against H. that the piano was purchased by him with trust money of M.'s estate, and belonged to that estate. In October, 1922, Mrs. H. sold the piano to her married daughter and her husband on certain conditions. The trustees and beneficiaries then brought this action against the married daughter and her husband, claiming that H. had purchased the piano with trust money taken by him from M.'s estate, and therefore impressed with the trust. The defendants denied that the purchase money was trust property, and alleged that they purchased the piano bona fide for valuable consideration without notice. Held, on the facts, that the defendants were not bona fide purchasers for valuable consideration without notice; that the payment of £100 must be attributed as drawn against H.'s own money, and was not money in fact impressed with a trust; that the piano was not specific property capable of being identified as property into which the trust money had been converted; and that the judgment in the first action did not operate as an estoppel against the defendants. MOFFAT v. CRAWFORD, 1924 S.R. (Q.) 241. [Queensland.]

Sales of trustee property to wives of trustees -Subsequent confirmation of Sales by beneficiaries-Rescission of sales.-The plaintiffs were two of the beneficiaries under a Iwill and the defendants were the surviving executors and trustees thereof. The trustees in exercise of the trust for sale contained in the will, sold and transferred to the wife of one of the trustees a freehold property, part of the trust estate, and on the same day sold and transferred a similar property to the wife of another trustee. Later the trustees sold another freehold property, part of the trust estate, to one J. R., who purchased as trustee for the wife of one of the trustees under the will, and who later transferred the property to the said wife. The fact that the property was purchased by J. R. as trustee was known to the husband of the woman on whose behalf the property was purchased, but this was unknown to the other trustees. The device was adopted for the purpose of concealing from the beneficiaries the fact that the wife of a trustee was the true purchaser of the property. Some time after the transactions above referred to, the sales were confirmed by a deed to which the trustees and all the beneficiaries were parties, and the agreement constituted by the deed was carried into effect by all parties. At the time of the execution of the deed the plaintiffs were well aware of the purchases by the wives of the trustees, and of all rele

vant circumstances of the purchases. The plaintiff beneficiaries sought rescission of the transfers on the ground that it was unlawful for a trustee to sell trust property to his own wife. Held, that, even assuming the matrimonial relationship was not a ground of invalidity, but was merely a ground of suspicion had not been dispelled, and that the sales to the trustees' wives were invalid, but that the plaintiffs were precluded by the deed of arrangement from obtaining the relief sought by them. ROBERTSON V. ROBERTSON, 1924 N.Z.L.R. 552; G.L.R. 71. [New Zealand.]

Property held by bankrupt as trusteeRight of cestui que trust to follow trust property. See BANKRUPTCY, col. 29.

Settled estate-Consent to application for sale-Contingent remaindermen.-See SETTLED ESTATE.

Probate and administration-Administration-Executor and trustee-Right to commission.-See EXECUTOR AND ADMINSITRATOR, col. 164.

Powers of trustees under settlement.-See SETTLED ESTATE-SETTLEMENT.

Will-Leaseholds- Power of trustees to postpone conversion.-See WILL, col. 492.

See also ADMINISTRATION-WILL.

VAGRANCY.

See POLICE OFFENCES.

VALUATION OF LAND.

See LICENSING.

LOCAL GOVERNMENT.

VENDOR AND PURCHASER.

Encroachment of Buildings Act, 1922 No 23-Encroachment-Real Property Act-Long continued possession-Presumption that land occupied is land included in certificate of title. ---Where in a contract for the sale of land together with the residences thereon the land is described as having a certain frontage and depth, being the whole of the land comprised in a certain certificate of title and being lot 30 in a certain deposited plan, and it appears that the land in the certificate is of the dimen. sions mentioned in the contract, and that it has been uninterruptedly occupied for 42 years, the most positive evidence is required to rebut the presumption that the land occupied is in accordance with the boundaries as originally plotted. Turner v. Myerson (18 S.R. 133) applied. TURNer v. Hubner, 24 S.R. 3; 41 W.N. 1. [New South Wales.]

Sale of lease and licence of hotel subject to mortgage Agreement by purchaser to sign securities for amount of mortgage debtRefusal by mortgagee to advance full amount to purchaser-Failure of fundamental termRecovery by purchaser of deposit paid.By a contract, in writing, the plaintiff agreed to purchase from the defendant the lease, licence, goodwill and furniture of a hotel for £10,800, payable by a deposit of £300, £3,700 to be paid not later than a certain day, and the balance £6,800,"to be obtained by the purchaser and paid in cash, or a guarantee given for the same to the satisfaction of the vendor" on another day. The defendant agreed to pay off and obtain the discharge of any security which there might be on the lease, licence or furniture. The purchaser

agreed "to sign a bill of sale and other usual securities for £6,800 about, part of the said purchase money, which is to be advanced by " R. Held, that the words "which is to be advanced by "R. were the statement of an essential circumstance on the faith of which as a fundamental term and condition, the plaintiff entered into the bargain and that, upon the failure of that term and condition, the plaintiff was entitled to recover the deposit of £300 which he had paid. Coffey v. Clifton (24 S.R. 168; 41 W.N. 34) affirmed). COFFEY v. CLIFTON, 41 W.N. 108. [High Court.]

The

Sale of land-Lien for unpaid purchase money-Whether promissory notes taken as payment or security-Caveat-Damages. The plaintiffs entered into an agreement to sell to the defendant land, a crop growing thereon and chattels for £12,300 to be paid" by a cash deposit, promissory notes signed by one B. and a promissory note signed by the defendant. The land was transferred to the defendant, and the transfer of the land (without the crop and chattels) was expressed to be in consideration of the sum of £11,000 paid " to the plaintiffs by the defendant. There was no stipulation that B.'s promissory notes should be endorsed by the defendant, and, in fact, he had been requested to do so, but had refused. defendant had also been asked by the plaintiffs to give them a mortgage over the land, but had refused to do so. One of B.'s promissory notes was paid, the next two were dishonoured, but later a sum was paid on account; later B. failed financially. The plaintiffs brought this action against the defendant for rescission of the transaction on the ground of fraudulent misrepresentations as to B.'s financial position, but the alleged ground was held not to be proved. The plaintiffs claimed in the same action a declaration that they were entitled to a lien on the land for the unpaid purchase money. Held, that in determining whether a lien existed or not the Court was not limited to considering only the transfer or conveyance, but might also consider the agreement for sale and the circumstances in which the agreement was made, in order to ascertain what the real intention of the parties was. Frail v. Ellis ([1852] 16 Beav. 350) and In re Alber! Life Assurance Co. ([1870] L.R. 11 Eq. 164) applied. Held, also, that the circumstances and documents showed that both B.'s and the defendant's promissory notes were taken in part payment for the land and not as security for the payment, and consequently no lien existed in respect of the amounts mentioned in these promissory notes. plaintiffs had lodged a caveat against the land and the defendant counter-claimed for damages, including loss of crop which he had not put in on account of the caveat. Held, that the loss arising from not putting in the crop was not a natural consequence of the plaintiff's act in lodging a caveat, and no damages could be recovered therefor. MEYERHOFF v. ZED, 1923 S.A.S. R. 282. [South Australia.]

The

66

Sale of land-Statement of acreage 280 acres more or less "-Deficiency of 18 acres― Whether misdescription of area-" More or less "-Meaning Compensation Conveyancing Act 1915 s. 12.-The words more or less," when used in a written contract for the sale of land as words qualifying the specified area of the land contracted to be sold, should be read as primarily intended to cover small discrepancies arising from errors in the measurement of the land, though it does not follow that in every case they are to be limited to a deficiency arising from such errors. By contract in writing a pur. chaser agreed on certain terms to buy a farm situate at Mount Sabine comprising 280 acres mores or less together with buildings and all improvements thereon," etc. contract provided that the provisions of Table A of the Transfer of Land Act 1915, which includes a compensation clause, should be applicable. Subsequently, on an accurate measurement being made, the real acreage of the land sold was ascertained to be only 262 acres 2 roods 6 perches. The purchaser claimed to be paid compensation in respect of the whole of the deficiency. Held, that the contract contained a misdescription of the area of the property sold within the meaning of clause 5 of Table A., but that the variation in area was covered by the words less"

The

more or

to the extent of 5 acres, and that compensation, accordingly, should be paid to the purchaser on the basis of a deficiency in area of 13 acres. Winch v. Winchester ([1812] 1 Ves. & B. 375) distinguished. BELFRAGE v. MCNAUGHTON, 1924 V.L.R. 441. [Victoria]

Sale of land-Purchaser in possession— Fraudulent misrepresentation by vendorRescission of contract-Compensation-Improvements by purchaser-Repairs-Losses in business. In an action by a purchaser against a vendor for rescission of a contract for the sale of land where the purchaser had entered into possession of the land, held, that the case being one in which rescission should be ordered, the purchaser was entitled to recover as compensation the value added to the land by reason of permanent improvements, which were not mere matters of taste or personal enjoyment, made by him before he knew of the matters which justified the rescission. Held, also, that the purchaser was entitled to recover as compensation the cost of necessary repairs, but was not entitled to recover as compensation collateral losses which he had sustained by reason of the fact that he had entered into the contract, such as losses incurred in carrying on a business on the land. Decision of the Supreme Court of Victoria (Mann, J.) varied. BROWN v. SMITT, 34 C.L.R. 160; 1924 V.L.R. 333; 30 A.L.R. 225. [High Court.]

Contract for sale of land-Claim by municipality in respect of street formationWhether vendor or purchaser liable.-Conveyancing Act 1915, s. 12.-A purchaser by contract of sale dated the 19th July, 1923, bought a house and land on terms which provided for payment of a preliminary

deposit and that the balance of the deposit should be paid by the 27th July, the balance of the purchase money to be secured on mortgage, possession to be given within 30 days, and rates and taxes to be adjusted as from the date of possession. The contract contained no express stipulation as to the time for completion. The back of the land sold abutted upon an unformed street, but the sale was made without that being taken as affecting the price. On the 21st July the local municipal council, having on the 10th July resolved to form the street pursuant to Division II. of Part XVIII. of the Local Government Act 1915, gave to the vendor notice of the estimated amount of his contribution. On the 2nd August the purchaser paid the balance of the deposit, due on the 27th July. On the 7th August the Council adopted a scheme, including the street in question. On the 8th August the council gave to the purchaser notice of its claim under the scheme, of which she had not been previously informed. On the 13th September the purchaser entered into possession of the land sold, which was transferred to her subject to the agreed mortgages. There was evidence that the vendor had no right to use and did not commonly use, the street. Held, that, assuming a liability on either the vendor or the purchaser to contribute the sum claimed, this was an unapportionable outgoing (not provided for in the contract), which became, on the 7th August, a charge on the land by virtue of the Local Government Act; that the date of completion of the contract should be regarded as being the date of payment of the balance of the deposit, i.e., the 2nd August, and that the claim must, as between vendor and purchaser, be paid by the purchaser, this being (in the opinion of the Court) really what must have been intended by the parties. Re Sneesby and Ades & Bowes' Contract (1919 V.L.R. 497) discussed and applied. MYERS v. WITHAM, 1924 V.L.R. 470; 46 A.L.T. 65; 30 A.L.R. 354. [Victoria.]

Sale of land-Interest on unpaid purchase money guaranteed-Default by purchaser in payment of purchase money and interestAbandonment of poseession and repudiation— Guarantor's liability.-A contract to pay a principal sum on a certain date with interest thereon is not to be construed as a contract to pay interest on the principal sum while in arrear after the due date, unless the special wording of the contract necessitates such an interpretation. Any interest recoverable in respect of a period subsequent to the due date for payment of the principal is not contractual interest, but is recoverable merely as damages in an action for recovery of the principal sum. Cook v. Fowler (L.R. 7 H.L. 27) and Keene v. Keene (3 C.B.N.S. 145) followed. On January 5, 1919, a con. tract of sale and purchase of certain land was made between plaintiffs as vendors and E. H. C. as purchaser. The purchase money was £7,846 2s. 6d. A deposit of £200 was paid by the purchaser. The contract contained the following clause: Possession to be given and taken on January 7, 1919,

66

on which date the purchaser is to pay to the vendors a further sum of £200. The balance of the purchase money is to be paid as follows, £600 on February 1, 1920, and the balance on February 1, 1923. All unpaid purchase money to bear interest at 5 per cent. per annum. There was no express provision as to the date or method of completion of the purchase. The purchaser paid the further sum of £200 and took possession of the property. He made default in payment of £600 due February 1, 1920, and also in payment of interest. On March 4, 1920, the defendant, J. C., in consideration of the vendors having sold the land to E. H. C. and in consideration of their now refraining from pressing him for payment of interest on unpaid purchase money due under the agreement, guaranteed to the vendors payment by E. H. C. of all interest moneys now accrued due, or hereafter to accrue due, to them under or by virtue of the said agreement. In October, 1923, E. H. C., being in default in payment of interest and purchase money abandoned possession and notified plaintiffs accordingly. Plaintiffs did not accept this repudiation and under an order of the Supreme Court of November 15, 1923, took possession of the land and let it and entered into receipt of the rents. In pursuance of his guarantee, J. C. paid to the plaintiffs all interest accrued due to the 7th January, 1923. On a claim by plaintiffs for interest for the year ending 7th February, 1924, held, that the only interest covered by the guarantee was the interest accrued up to the 1st February, 1923, the due date fixed for payment of the balance of the purchase money, and therefore plaintiffs were only entitled to recover interest for the days elapsing between January 7 and February 1, 1923. RUDDENKLAU v. CHARLESWORTH, 1924 G.L.R. 417. [New Zealand.]

Sale of land-Representation as to number of sheep carried-Innocent misrepresentation. The plaintiff agreed to purchase certain land from the defendants. One of the defendants represented to him in the course of the negotiations that the land had carried throughout the preceding winter 1,100 ewes. The plaintiff alleged that in fact the land carried only 1,000 ewes and the Court so found. The plaintiff rescinded the contract on his ascertaining the fact. The representation, though an innocent one, was, the Court found, material and induced the contract. The plaintiff sought to recover the deposit paid. The defendants alleged that concurrently with the above representation they had stated that the carrying capacity was 1,100. Held, giving judgment for the plaintiff, that if a vendor for the purpose of inducing a contract makes to the purchaser two material but inconsistent statements which cannot be harmonised reading one of them as a qualification of the other, the purchaser can rely on one of them rejecting the other as mistaken or unreliable. VIAL v. ORR, 1924 G. L. R. 465. [New Zealand.]

Contract-Time of the essence-DefaultWaiver Extension of time for completion A.A.D., 1924

16

-Purchaser ready to complete-Specific preformance. When time is of the essence of the contract, but there has been waiver by an extension of time to a fixed date the purchaser will be entitled to specific performance if he is ready and willing to complete on the extended date. Defendant agreed to sell and plaintiff agreed to buy certain freehold property. The price agreed on was £425 and the terms stated were £50 deposit on acceptance of the offer and £375 with interest on the 8th December, 1923. There was a stipulation that time was to be of the essence of the contract and that the defendant was to have the option of rescinding the contract and retaining the deposit if the conditions of the contract were unfulfilled. The plaintiff was entitled to immediate possession of the property and he was to make certain improvements thereto. These improvements were com. pleted by the 8th December at a cost of £140. The purchaser failed to pay the balance of purchase money on the due date owing to the difficulty of arranging the mortgage, and the defendant consented to an extension of time to the 10th January. On the 7th January the defendant wrote to the plaintiff's agent giving him notice that the sale was cancelled and claiming the deposit and the rents of the property. On the 10th January the plaintiff's agent tendered £375 in cash to the defendant's solicitor who declined to receive it. action for specific performance, held, that as defendant had waived the exact performance of the contract as to time and consent to an extension to the 10th January, he could not rescind the contract until default had been made at that date, that the notice of the 7th January was of no effect and that as the plaintiff was ready and willing to complete on the extended date he was entitled to the decree asked for. WILSON v. MCGEE, 1924 G.L.R. 616. [New Zealand.]

On

Sale of interests in land held under agreement-Sub-vendor indemnified-Agreement between vendor and sub-purchaser as to payments Sub-vendor not consulted-Whether liable. In June, 1915, plaintiff sold to defendant certain land. A deposit was paid and the balance of the purchase-money was payable in July, 1920, with interest in the meantime at 6 per cent. In 1918 defendant sold the land to G., who agreed to carry out the agreement with plaintiff and to indemnify defendant. G. took possession and from time to time paid to plaintiff certain of the interest. In 1919, plaintiff knew that G. had taken over the land and thereafter treated with him as to payment of interest and purchase money. In 1921 he obtained from G. an agreement to pay 6 per cent. interest, and in 1923 extended the time for payment of interest. Defendant was not a party to the agreement to pay a higher rate of interest and was not consulted as to the extension of time. Held, that defendant was liable for the interest due, and by virtue of s. 9 of the Mortgages and Deposits Act 1921, was liable for payment at the rate of 6 per cent. PUBLIC TRUSTEE v. BUXTON, 19 M.C.R. 117. [New Zealand.]

Sale of land-Part consideration in shares of certified value-Delay by purchaser in procuring certificate Settlement without prejudice Vendor claims cash in lieu of shares

-The Vendor and Purchaser Act 1875 (39 Vic. No. 2).-A contract of sale of land provided that part of the consideration should be taken in shares of certified value. The purchase was completed without prejudice to the rights of the vendor in respect of shares. In consequence of prolonged default on the part of purchaser, the vendor took out a vendor and purchaser summons claiming cash in lieu of shares, but the hearing of it was from time to time adjourned. A certificate of value was ultimately forthcoming, and before the summons came on for hearing, the shares, after great difficulty, were transferred into the name of the vendor, but he refused to accept them. Held, that the vendor was not entitled to payment in cash even if the purchaser had made default as alleged. In re MANSELL AND CROZIER'S CONTRACT, 18 Tas. L.R. 64.

Sale of goods-Possession of vendorLarceny from vendor.-See CRIMINAL LAW, col. 97.

Contract for Sale of Land-Sale under Closer Settlement Acts-Instalments-Interest -See CLOSER SETTLEMENT.

Contract for sale of land-Defect in title as to portion-Compensation.-See SPECIFIC PERFORMANCE.

Contract-Option to purchase-Death of person to whom option given-Exercise by personal representative.-Specific performance -See SPECIFIC PERFORMANCE.

Lease of land-Option to purchaseEffect of Transfer of land-EasementRights under option.-See LANDLORD AND TENANT, col. 261.

Mortgage Right of redemption-Lease of hotel-Option to purchase. See MORTGAGE, col. 326.

Sales of trust property to wives of trustees. Confirmation by beneficiaries-Rescission.See TRUST AND TRUSTEE, col. 475.

Execution Sale of Land by mortgageeCharging order-Effect.- See SERVICE AND EXECUTION OF PROCESS.

Sale of land-Breach of contract-Bankrupt purchaser-Bankrupt land agents representing his financial ability-Proof of debt-Damages. -See BANKRUPTCY, col. 27.

Sale of land-Formation of contract

Claim for wages-Jurisdiction—Quashing order-Order made on hearing of complaint under The Wages Act of 1918-Order.-On a complaint made under the Wages Act of 1918, whereby the respondent claimed against the appellant the balance of wages for work and labour done, a Police Magistrate decided in favour of the respondent; the complaint was made in February, 1924, and the work and labour on which the complaint was based, was done from February to November, 1920. Held, (per totam curiam), an order made for the payment of wages on a complaint made under the Wages Act of 1918, is an order within the meaning of that word in s. 209 of the Justices Act of 1886, and therefore an appeal lies therefrom to the Supreme Court by way of quashing order under

S.

209. Held (per McCawley, C.J., and Macnaughton, J.), on the facts that there was no evidence on which the magistrate could reasonably find that the appellant was liable. Held (per Lukin, J), that as the complaint was not made within six months from the time when the matter of complaint arose, as required by s. 54 of the Justices Act of 1886, the magistrate had no jurisdiction to entertain it. SMITH V. THOMPSON; Ex parte THOMPSON 1924 S.R. (Q.) 271; 18 Q.J.P.R. 107. [Queensland.]

Summons for recovery of wages-Time limited for complaint-Mandamus.-See JusTICES, col. 245.

Claim by Government servant that he was not paid wages-Proceedings against AttorneyGeneral-Whether Statute binding on Crown. -See PUBLIC SERVICE.

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

Employee Right to loaded rate under Factories and Shops Act (Vic.). See FACTORIES AND SHOPS.

Jurisdiction of Police Court to enforce payment of wages. See MASTER AND SERVANT, col. 318.

See also INDUSTRIAL ARBITRATION.

WAGES BOARD.

Wages board-Power to appoint-Chairman -See FACTORIES AND SHOPS.

And see INDUSTRIAL ARBITRATION