authorised to "cause proper and convenient sewers, gutters,
drains, and watercourses to be made along or under the
streets, &c., for carrying off water, mud, or other filth from
the same. In an action against the Corporation for negli-
gently causing and permitting an overflow of foul or other
water by bad construction of a watercourse on to the plain-
tiff's land, Held, that the plaintiff was entitled to recover, if
more filth or other injurious matter was thrown on the plain-
tiff's land than would have come there but for the defendants'
watercourse; and that it was immaterial that this filth would
not have been brought down by the watercourse but for the
wrongful act of third persons. Smart v. The Corporation of
Sydney.
380
See SEWERAGE ACT, 1. Mansfield v. The Mayor, &c., of
Sydney
TENANT liable under Fencing Act, 9 G. IV., No. 12. Parker v.
TENANTS ACT. 1. In April, 1866, B., the owner of certain premi-
ses, let them to H. for twelve months, at a weekly rent, it
being agreed that H. was to go out on receiving three months
notice, during which three months he was to pay no rent, or
on getting three months rent paid him in lieu of notice. But
this notice was only to be given in case of B. selling. In
July, B. mortgaged the property to S. & Co. On 4th Sep-
tember, having agreed to sell to J., B. gave the stipulated
notice, to expire on 4th December. In October, H. paid to
B. twenty-six weeks rent, and had notice that the agreement
to sell to J. had fallen through. After this B. sold to the
mortgagees, S. & Co. In the meantime one M., having
authority from both B. and S. & Co., demanded rent from H.,
and after repeated demands, at the end of November, H. paid
M. seven weeks rents, and on 3rd December one week more.
On the 4th December, M., on behalf of S. & Co., demanded
possession, and possession being refused he proceeded against
H. under the Tenant's Act (17 Vic., No. 10), and procured a
conviction and order for ejectment. The Court (Hargrave, J.,
dissentiente), granted a prohibition. Ex parte Harris
TOWNS POLICE ACT.
See POLICE (TOWNS) ACT, 1.
See MANDAMUS, 1. Ex parte Mackenzie
TRUST. 1. Action by the official assignee of M., an insolvent, to
recover a deed of grant, or its value. Plea, on equitable
grounds, that the defendant was entitled to retain the deed
against the plaintiff, because he had purchased the property
before M.'s insolvency, when sold by a creditor under a bill
of sale, and for M.'s benefit. Replication, on equitable
grounds, that the purchase was made by the defendant in
trust for M., in collusion with him, and partly with his
money, and for the purpose of defrauding M.'s creditors. It
further alleged that all the money advanced by the defendant
had been repaid. Issue thereon.
At the trial, it appeared that M. being entitled to a grant
in fee of certain premises, mortgaged the same and the stock
thereon to D. The instrument contained a power of sale in
case of default; and in pursuance of this power D. offered the
premises for sale. M. protested against the sale, denying his
indebtedness, but finally endeavoured by the aid of friends to
prevent the sale by payment. The defendant was willing to
advance a great part, but not the whole of the amount required.
Three friends of M. placed in M.'s hands three cheques and a
bill of exchange, unitedly amounting to £290, and M. gave
them to the defendant, apparently to complete the required
sum. They were placed to defendant's credit in a bank, but
the bill was never used. M. was not called as a witness; but
the defendant swore that no arrangement was up to that time
come to between them, to purchase the property. But he ad-
mitted he wished to assist M. On the morning after the
receipt of the cheques the defendant attended the sale, and
purchased the entire property from D.'s agent for £800, gave
a cheque for the amount, and took a receipt by way of con-
veyance from D. in consideration of such payment. The
stock was sold off by M. in defendant's name, and the pro-
ceeds paid to the latter's credit, until £732 was realised.
After the insolvency the Crown grant of the premises was
sent to M.'s wife, and by her given to the defendant. The
jury having found that the defendant had purchased as
trustee for M., and had been repaid, and that the object of
the purchase was to defraud M.'s creditors, the verdict was
entered for the plaintiff. The Court refused to disturb the
verdict, being of opinion that the replication might be proved
without evidence of a trust in writing. Humphery v.
Roberts
in writing under Statute of Frauds. Humphery v. Roberts 214
UNILATERAL CONTRACT, what is Morrison v. Lloyd
30
UNION BANK OF AUSTRALIA, Inspector of, cannot be petition-
ing creditor under the Insolvent Act. Ex parte Union Bank,
In re Estate of Threlkeld
VARIANCE between contract declared on and proved.
See GAMING, 1. Hogan v. Curtis
WARDS, where there are separate, 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
upon division into, election of councillors for municipality.
The Municipality of Bathurst v. Ashworth
See AGREEMENT, 1. Lowe v. Josephson
WATERCOURSE, meaning of Mansfield v. The Mayor, &c., of
WAY. 1. L. being seized in fee of certain land, divided it into allot-
ments according to a plan, and sold the lots by auction.
Quay-street was one of certain ways marked in the plan, and
ran between two allotments, which were described in the
particulars as having a frontage to Quay-street. The plaintiff
having become the owner of these two allotments, shut up the
road. The defendant was the owner of other allotments of
the same estate, sold by L. The conveyance of each allot-
ment from L., under whom both the plaintiff and defendant
claimed, granted to the purchaser of each allotment a right of
road on all the ways marked on the plan. Held, that the
purchasers of each allotment had, by their grant, a right over
every one of the roads so marked, and not merely over the
particular road which bounded his allotment; and that the
plaintiff having only purchased all the allotments which
bounded Quay-street, had not thereby acquired any ex-
tinguishment of the equal rights of the defendant. Friend v.
Luke
263
WILL. 1. S. T., by a codicil to his will made in 1834, gave his
Bathurst and Five Islands estates, with some others, and all
the residue of his estate not otherwise disposed of, to the
plaintiffs, in trust for his son E., for life, and afterwards for
his children; or if E. should die without issue, then to con-
vey the estates to the testator's own right heirs. By a second
codicil made in 1836, the testator revoked so much of his will
and codicil "as relates to the undermentioned estates and
properties," and then after certain devises, proceeded, "and
whereas, by my said will and codicil, or one of them, I did
give and bequeath all my real estate, not specifically other-
wise disposed of, to the trustees therein named, upon trust for
my said son, E." (reciting the above bequest), and continued,
"I hereby revoke and annul such part of my said bequest as
relates to my own right heirs; and I give, devise, and be-
queath the same real estate (in the event of my said son's
death without issue) to all the children of J. T., and of my
nephew, J. T. H., and of my daughter, M. F. H., who shall
be then living, share and share alike as tenants in common;
and I direct my said trustees, &c., on such event, to convey
the said estate unto, and to the use of, such the children of
the sail J. T., J. T. H., and F. M. H. accordingly." In an
action of ejectment by the trustees of the will for some land
known as Paul's grant, part of the Five Islands estate, it ap-
peared that, by a power of attorney dated 16th February,
1828, P. acknowledged himself to have sold Paul's grant for
value to the testator, and to have received the purchase
money; and he authorised G. P. to convey the same to the
testator. The land in question was granted by the Crown to
P. in 1833, the grant reciting a promise to him made in 1824,
and P. conveyed the land to the testator in 1835.
Held (per Stephen, C. J., and Faucett, J.), that the testator
had a devisable interest in Paul's grant in 1828, and that it
passed to the trustees by the codicil of 1834, or by the united
effect of that codicil and the codicil of 1836, but (per Faucett,
J.) that the interest that so passed was equitable and not the
legal estate acquired in 1835.
(Per Hargrave, J., and Faucett, J.) That the codicil of
1836 was not a re-publication of the will and the codicil of
1834, and that it did not pass to the trustees the legal estate
acquired by the testator in 1835.
(Per Stephen, C. J.) That the codicil of 1836 was a re-
publication of the codicil of 1834, as to the lands comprised in
such codicil, and therefore as to the land in question, and
that the legal estate passed to the trustees.
(Per Hargrare, J.) That Paul's grant was not included
in the residuary devise contained in the codicil of 1836.
It appeared that, in 1840, a suit had been instituted in equity
by three of the children entitled under the last codicil, being
infants, against the other children so entitled, and against the
then trustees, and the heiress at law, to establish the will and
carry out the trusts, and obtain a partition of the trust pro-
perty. In that suit, in 1842, a decree was made on which
nothing was done; but a reference was made to the Master
to enquire what part belonged to the residuary estate.
Master reported that Paul's grant did not form part of the
residuary estate, and that report was confirmed by the Court,
and eventually, in 1856, by the Privy Council. But no final
decree was made. In 1859 the plaintiffs petitioned, stating
that they had discovered new evidence of the testator's title,
to be allowed to file a supplemental bill in the nature of a bill
of review, for the purpose of putting in issue the supple-
mental matter so discovered, and the Court ordered the
Master to review his report. But the Privy Council reversed
such order. Held, that the present plaintiffs were not pre-
cluded from again litigating the question of title. Norton v.
Hosking
WITNESS. 1. A party to an action may be asked on cross-examina-
tion as to anything which has been said or read in his hearing,
even although what was so said or read purported to be the
contents of an affidavit or any other matter instrument.
Canning v. Brown
See EVIDENCE, 2. Gallimore v. Moore
ADVICE OF COURT under 26 Vic., No. 12. 1. The Court will decline
to give the executors of a partnership in a large mercantile
firm its judicial advice, opinion, or direction, as to the ac-
ceptance of a settlement from the surviving partners, where
the matter in question involves only a personal responsibility
resting on the executors themselves, and depends on their
own knowledge of the facts of the case, the position of all
parties interested in the firm and its transactions, and on
mercantile probabilities and commercial prudence arising from
detailed information beyond the cognizance of the Court.
But the law laid down in cases bearing on the subject pointed
out as a guide to the executors, and costs of petition ordered
to be paid out of the estate. Gilchrist's Will and Trust
Property Act
APPEAL. 1. Appeal dismissed because memorandum of appeal not
signed by two counsel. Sempill v. Campbell
2. There can be no appeal to the Court from the Master's decision
until after he has made his report. Sempill v. Campbell 80
3. An appeal from a decree of the Primary Judge will not
be heard unless the decree has been drawn up, passed, and
entered. The plaintiff appealed from a decree dismissing his
bill with costs, but omitted to draw up the decree appealed
from and to get it passed and entered. Held, that the
Master's fiat on the petition of appeal should be discharged,
and the appeal struck out of the paper with costs. Held also
(Hargrave, J., dissentiente), that the omission of the plaintiff
to get the decree passed and entered before entering his appeal
did not amount to an abandonment of the appeal, but that
the same might be set down for hearing on a future day after
the decree had been perfected. Rattray v. Blanchard 94
4. An appeal, in the prosecution of which there had been negli-
gence, and which had previously been struck out of the paper
for irregularity, allowed to be set down for hearing, after the
irregularity was rectified, upon paying costs of motion and
giving security for costs of suit. Rattray v. Blanchard 100
CONSIDERATION OF DEED.
See MARRIAGE SETTLEMENT, 1.
CONSTRUCTION OF WORDS. A testator by his will declared as
follows:-"I do by this present instrument make arrange-
ments for all my property, heritable or moveable, in ready
money, in manuscript writings, maps, charts, or all that I
may be possessed of or have claim to, either in Great Britain
or in the colony of New South Wales, at the time of my
death, give, leave, and bequeath to Mr. John Muir, my
relation, at present engaged in the service of the Union Bank
of Australia, in Sydney. I also appoint M., B. and H. to be
my executors and administrators, to take possession of all my
property, stock, and effects." Held, that this was a devise
and bequest to John Muir of all the testator's estate. Gardner's
Will, and 21 Vic., No. 7
1. Costs and expenses awarded by Master to party attending
on a warrant issued, but not duly attended by the opposite
party, ordered by the Court to be paid within fourteen days.
Macarthur v. Regan
See APPEAL, 3.
See MORTGAGE, 3.
DOWER. The widow of M., who died intestate in 1865, took out
letters of administration, and afterwards sold the freehold
estate to which he was entitled at his death, and out of which
she was dowable. After the sale she applied to the Court for
direction to retain out of the balance in her hands, including
the proceeds of sale, a sum equal to the present value. at her
age, of a life annuity of one-third of the rental at the time of
sale.
Held, that the Act, 26 Vic., No. 20, confers on the adminis-
trator a statutory title in all the real estate of an intestate,
without the intervention of any order for sale by the Court or
a Judge.
Held also, that the provisions of the 2nd section of the Act
primarily refer to estates sold under the directions of the
Court, and do not apply to this case.
Held, further, that the administratrix was entitled as to
dower only out of the proceeds of the sale, reckoned as if in-
vested in Government debentures, at 6 per cent.-one-third of
such income to form the basis of the calculation of the present
value of an annuity for her life-which lump sum she might
be at liberty to retain, out of the balance in hand, for her
dower. In the will of Murphy
63
EQUITABLE MORTGAGE.
See VESTING ORDER.
EXECUTORS de son tort. In 1848, W. purchased from the Crown
sixty acres of land, on the joint account of R. and himself-
paying the purchase money, and getting the grant issued in
his own name. W. and R. afterwards divided the property
between them, R. taking thirty acres, and paying W. half
the original purchase money. In 1849 W. died, having duly
executed a will, whereby he devised, subject to the payment
of his debts, all his realty to his four children, directing that
"these four children, together with their mother, will possess
the thirty acre farm for their own absolute use. My wife
shall live on the farm as long as she is alive, and she can
never let, sell, or mortgage the property; my children can
equally divide it among themselves after the death of their
mother, and when the youngest is twenty years of age or
married;" and he appointed S. and his widow his executors.
The will was never proved, but shortly after his death his
executors sold, for the purpose of paying his debts, ten acres
out of the thirty, which ten acres, after being several times
sold to successive purchasers with the consent of the executors,
were at last, with the like consent, purchased by R. No con-
veyance was executed to R. of the thirty acres, or to any of
the successive purchasers of the ten acres, but they had all re-
mained in quiet possession from the time of their several pur-
chases. The eldest son on coming of age brought an action
of ejectment against R., who thereupon filed his bill, praying
an injunction to stay the action, and for a conveyance of the
thirty acres and ten acres to him.
Held, that R. was entitled to a legal conveyance both of the
thirty acres and of the ten acres.
Held also, that the sale by the executors, though acting as
executors de son tort, of the ten acres, was a good and
effectual sale by them under the circumstances.
|