2. Where there are separate wards in a municipality, the rate-
payers of each ward must elect a councillor for that ward.
But the ratepayers of one ward may elect as their councillor
a person duly qualified for another ward of the same munici-
pality. R. v. Gell
3. An uncertificated insolvent is not disqualified from being
elected a councillor for a municipality, and holding office
under the Municipalities Act of 1858. Ex parte Mossman 245
MUTUALITY in contract. Morrison v. Lloyd
30
See SYDNEY (CORPORATION), 1. Smart v. The Sydney Corpo-
ration
380
NEGOTIABLE INSTRUMENT, liability on Wilson v. Joshua 319
See CHEQUE, 1.
See WAY, 1. Friend v. Luke
See MALICIOUS PROSECUTION, 1. Bardwell v. Galvin 19
NOTICE under Fencing Act (9 G. IV., No. 12), what is sufficient.
Parker v. Bowman
See SYDNEY (CORPORATION), 1. Smart v. The Corporation of
Sydney
ORDER for the payment of money.
PARTICULARS, better, when refused. Murnin v. United Assurance
See INSOLVENT ACT, 2. Ex parte Union Bank, In re Estate
of Threlkeld
119
PETITION OF RIGHT. 1. The Court cannot amend a Petition of
Right, under the 24 Vic., No. 27, by adding a count setting
forth a new cause of action after the Governor has granted
his fiat. The Oriental Banking Corporation v. The Queen 273
PLEADING. 1. Where the declaration, framed under the 23rd
section of the Real Property Act, alleged that the plaintiff
was seized and was in possession of land, and that the defen-
dants knew these facts, but that the defendants, notwith-
standing, falsely alleged themselves to be seized and in pos-
session, and thereupon applied for a title under the Act, the
Court refused to allow a new count to be added, resting
plaintiff's case on possession only. Stockdale v. Hamilton 261
See BOND, 1. The Oriental Banking Corporation v. Hart 78
See GAMING, 1. Hogan v. Curtis
See PROMISSORY NOTE, 1. Murray v. Thompson
See PROMISSORY NOTE, 3. Brunker v. Breckenridge
PLEAS to promissory notes, practice as to allowing Murray v.
Thompson
POLICE (TOWNS) ACT. 1. A person cannot be convicted under
the 48th section of the Towns Police Act, 2 Vic., No. 2, of an
encroachment on a street where there has been no proper
alignment under the Act, and no setting out of the streets
"under the authority of the Governor," under the 19 Vic.,
No. 10. Ex parte Crozier
PRACTICE. 1. A defendant into whose hands a writ of summons
has come can take advantage of the objection that he was not
personally served, and that efforts were not made to effect
personal service, under the 15th section of the Common Law
Procedure Act. Newton v. Webster
12
2. It is not necessary to make a District Court Judge or the
Registrar a party to a rule nisi, for the removal of a cause for
trial in the Supreme Court.
Semble, the rule would be otherwise, if the proceedings had
gone on to judgment. Ex parte Bellifanti
3. Where the defendant requires better particulars, he must
apply promptly, and if possible, before pleading; and, as a
rule, for the purpose of paying money into Court, or, at all
events, of ascertaining whether the plaintiff's claim is fair
and reasonable, or not. Murnin v. United Assurance Com-
pany
4. It is not necessary to make the Registrar of the Court a party
to a rule for a prohibition. Ex parte Gee
355
5. R. sued C. for the price of some machinery, and then C. sued
R. for negligence and delay in the execution of the machinery.
Afterwards a Judge allowed C. to plead, by way of cross-
action, the negligence, &c., which was the subject matter of
the second action, and stayed proceedings in the second
action. The first action having gone on to trial, the plea of
cross-action was found in favour of the defendant (C.), and
damages assessed; such damages being deducted from the
price agreed on, and the plaintiff (R.) obtaining a verdict for
the balance. R. having entered up judgment, pleaded this
plea in the second action, being in effect a plea of judgment
recovered. On this C. confessed the plea, and claimed costs
up to that time under Rule 38, of April 1856. Held (Har
grave, J., dissentiente), that the rule was applicable, and that
C. was entitled to costs up to plea pleaded. Cummings v.
Russell
368
6. An appeal lies to the full Court from the Primary Judge in
matters of lunacy. In re Bowman
399
on showing cause against rule nisi for new trial, where rule is
ambiguous. Morrison v. Lloyd (note a)
as to reply, on showing cause against rule nisi for new trial.
Frazer v. Evans
See JUDGMENT, 1. The Attorney General v. Buckland 146
See COSTS, 2. Solomon v. Johnston
See REAL PROPERTY ACT, 2. Stockdale v. Hamilton 261
See PETITION OF RIGHT, 1. The Oriental Banking Corporation
v. The Queen
273
PROHIBITION. 1. In an action in the District Court, the defen-
dants A. and B. were described in the plaint and summons as
trustees of a Friendly Society, which was incorporated under
the Industrial and Provident Societies Act of 1865. A copy
of the summons had been served on the Secretary of the
Corporation, at their place of business. At the hearing, the
attorney for the corporation merely objecting that the suit
should have been against the corporation, and not against the
trustees, the Judge gave a verdict for the plaintiff. It appear-
ing that A. had never been served in any way, and knew
nothing of the suit until after judgment, the Court (Hargrave,
J., dissentiente) granted a prohibition. Ex parte Bucknell 96
granted where a District Court Judge issued a ca, sa, against
a defendant after he became insolvent. Ex parte Gee
PROMISSORY NOTE. 1. In an action by the holder of two pro-
missory notes against the indorser, the indorsee being a bank
in difficulties, and the plaintiff the manager of another bank,
acting for the first mentioned bank, a Judge having allowed
the defendant to plead, first, that the notes had not been in-
dorsed, and, secondly, that the plaintiff was not the holder,
the Court refused to rescind the order. Murray v. Thomp-
2. A. being the holder of certain promissory notes made by B.
in favour of C., and indorsed by C. to A.: B. became insol.
vent; C. having assigned his estate for the benefit of his
creditors, his trustees had paid to A. 3s. 6d. in the pound, on
account of the promissory notes-Held (Stephen, C. J., dissen-
tiente), that A. was entitled to prove for the whole amount of
the promissory notes against the estate of B.; for as against
the estate of the maker of a promissory note, he being the
person primarily liable to pay the whole amount, payment by
the indorser or payee operates nothing. Ex parte The Bank
of New South Wales. In re Coulter
111
3. Action by indorsee of a promissory note made by the defen-
dants in favour of W. or order, and indorsed by W. to the
plaintiff. Plea, that after the granting a rule nisi for the
compulsory sequestration of W.'s estate, certain profits be-
came due and payable from the defendants to the insolvent
estate of W., for and in respect of the carriage of goods in a
vessel of W.'s, for the defendants; that the defendants paid
the said freight to the official assignee of W.'s estate; and
that W. refused to deliver the goods to the defendants, unless
they should pay him the freight; and that by reason of such
refusal, W. deprived himself of the use of the vessel for a
certain period; and that afterwards, W. refused to deliver
the goods to the defendants, unless they gave him their
promissory note for the amount of freight and damages
caused by the detention of the vessel. The plea then alleged.
that in order to obtain possession of the goods, the defendants
gave W. the promissory note sued on; and that there was
never, except as aforesaid, any value or consideration for the
making of the note, and that the plaintiff took the note with
notice of the premises. Held, on demurrer, a good answer, as
the promissory note had been given for a claim by W., which
was utterly unfounded, although made bona fide. Brunker v.
Breckenridge
163
4. Declaration by J. S., stating that H. made his promissory
note for £100, payable to J. S. or order eighteen months after
date, and the said J. S. indorsed to the defendant, who in-
dorsed to the plaintiff; dishonour and notice.
Plea, that J. S., the payee and indorser and plaintiff, are
one and the same person.
Replication, that the plaintiff, by consent of the defendant,
indorsed the note to defendant without any value or conside-
ration, in order that the same might be made negotiable, and
negotiated by the plaintiff only; and that the same was in-
dorsed by defendant to the plaintiff thereupon, for the purpose
of the defendant thereby becoming surety as such indorser
for the payment of the said note by the maker to the plaintiff;
and the defendant indorsed the same to the plaintiff for the
purpose aforesaid, and as such surety as aforesaid, and for the
accommodation of the said maker; and there was never any
value or consideration for the indorsement or payment of the
said note by the plaintiff to the defendant. Held, on demurrer,
good.
Britten v. Webb considered. Scholes v. Tysoe
PROOF by holder of promissory note against insolvent estate of
maker, where there has been part payment by indorser or
payee. Ex parte The Bank of New South Wales, In re
Coulter
by obligor under bond. In re Estate of Spyer
by creditor in England, sufficiency of In re Estate of Spyer
(note a)
PUIS DARREIN CONTINUANCE, costs after plea of Cummings
v. Russell
See SYDNEY CORPORATION, 1. Smart v. The Corporation of
Sydney
QUO WARRANTO. 1. A quo warranto will not be granted to try
by what title a party exercised the office of chairman of a
municipality where the objection taken is the want of title in
the councillors who elected him.
Where there are separate wards in a municipality, the
ratepayers of each ward must elect a councillor for that ward.
But the ratepayers of one ward may elect as their councillor
a person duly qualified for another ward of the same munici-
pality. R. v. Gell
2. The Court discharged a rule for a quo warranto information,
it not appearing by the affidavits that the councilior whose
title was impeached had acted as such, or had accepted the
office, and refused leave to amend. R. v. Smith
259
REAL PROPERTY ACT. 1. The Registrar General having under
the Real Property Act, 26 Vic., No. 9, issued a certificate of
title with a clause indorsed thereon, reserving or purporting
to reserve "any legal rights incident to the alignment of
streets or roads abutting on the land," the Court (Stephen,
C. J., dissentiente) directed the Registrar General to cancel
such certificate, and to issue a new certificate in the same
terms, but without such a clause. Ex parte Smart 188
2. Where the declaration, framed under the 23rd section of the
Real Property Act, alleged that the plaintiff was seized and
was in possession of the land, and that the defendants knew
these facts, but that the defendants, notwithstanding, falsely
alleged themselves to be seized and in possession, and there-
upon applied for a title under the Act, the Court refused to
allow a new count to be added, resting plaintiff's case on
possession only. Stockdale v. Hamilton
REASONABLE AND PROBABLE CAUSE.
See MALICIOUS PROSECUTION, 1. Bardwell v. Galvin
REGISTRAR OF DISTRICT COURT need not be made a party to
a prohibition. Ex parte Gee
RE-INDORSEMENT.
See PROMISSORY NOTE, 4. Scholes v. Tysoe
REJOINDER, evidence in Gallimore v. Moore
RELEASE of debt by intermarriage. Fitzgerald v. Fitzgerald 155
REPLY by counsel, showing cause on motion for new trial. Frazer v.
REPUBLICATION OF WILL.
See Norton v. Hoskings
See WAY, 1. Friend v. Luke
REPUDIATION of illegal contract before payment. Hogan v.
ROBBERY, plea of, by common carrier. The Oriental Bank Corpo-
SEDUCTION. 1. In an action by a father for the seduction of his
daughter, the detention by the defendant of the girl from her
father's service, by the act of connection, and taking and
keeping her for the purpose of connection away from her
father's service, is a sufficient causing of a loss of service to
the plaintiff to sustain the action. Patter v. Linden 351
SERVICE, personal, of writ of summons, under Common Law Pro-
cedure Act, what is Newton v. Webster
upon defendant under the 46th section of the District Court
Act, how far necessary. Ex parte Bucknell
SETTING ASIDE JUDGMENT after verdict. Attorney General v.
SEWERAGE ACT. 1. The seventh section of the Sewerage Act,
17 Vic., No. 34, authorises the Corporation "to break up the
soils, patchings, and pavements of any public or private
streets, highways, roads, ways, footpaths, lanes, passages and
places within the city, and to excavate and sink trenches for
the purpose of laying down, making, and constructing com-
mon sewers or drains therein, and to cause such common
sewers or drains to communicate with the sea, &c." Held,
that the word "place" must mean some place ejusdem generis
with the other words used in the section, that is, some spot or
street used in some way as a thoroughfare; and that there-
fore the corporation could not, under this section, construct a
sewer on the Gas Company's premises, the spot not being
used as a thoroughfare. Mansfield v. The Mayor, &c., of
Sydney
See DAMAGES, 1. Morrison v. Lloyd
SMALL DEBTS ACT (10 Vic., No. 10), action will not lie on
judgment under Simpson v. Rodd
STAMP. 1. The 18th section of the Queensland Stamp Act (which is
a verbatim copy of the 19th section of the 29 Vic., No. 6),
enacts, that where any written instrument liable to duty shall
be executed by any person "before it shall be duly stamped
for denoting the payment of the said duty," the Com-
missioners shall be paid the whole or the deficiency of the
stamp duty payable thereon, and a fine of 20 per cent.; and
upon payment of the said duty and fine, the Commissioners
are "to cause such instrument to be duly stamped with a
stamp denoting the payment of such duty or deficiency, and
also with a stamp denoting the payment of a fine, in lieu of
any receipt to be written or given for such fine. And no
such instrument shall be pleaded, or given in evidence, or
admitted to be good or available in law or equity, until the
same shall be duly stamped in manner aforesaid."
Action on a cheque made by the defendant. Plea, set off.
Replication, an agreement made in Queensland in accord and
satisfaction. At the trial, the agreement when produced bore
Queensland stamps for the proper amount of duty due thereon,
and also of the amount of the fine for not having been
stamped before it was signed. But it was admitted that the
stamps had been affixed in Sydney the day before the trial.
Held, that the agreement was admissible in evidence ; as the
section does not make stamping one of the essentials to the
operation of the instrument, but only a requisite to its being
given in evidence, and, therefore, to a matter relating only to
procedure.
Held also (Stephen, C. J., dissentiente, and Faucett, J., dubi-
tante), that the agreement was properly stamped.
A Queensland solicitor was examined, and having referred
to the Queensland Stamp Act, which purported to be printed
by the Government Printer, said that he should act upon it as
the law of Queensland, that, in his opinion, the agreement
was admissible; but that his opinion on the point was de-
rived from the 18th section of the Act. Held, that the law of
Queensland was sufficiently proved, and that the Court might
refer to the Queensland Act as a portion of the evidence in
the cause.
A party to an action may be asked on cross-examination as
to anything which has been said or read in his hearing, even
although what was so said or read purported to be the con-
tents of an affidavit, or any other instrument. Canning v.
Brown
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STATUTE, applicability of, to colony. Glasson v. Egan
of Frauds, trust in writing under Humphery v. Roberts 214
See TRUST, 1.
SUMMONS, a second, can issue upon the same information under the
Felon's Apprehension Act. R. v. Connell
314
SYDNEY CORPORATION. 1. By the 84th section of the Sydney
Corporation Act, 14 Vic., No. 41, the Municipal Council are
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