APPEAL, an, lies in lunacy from the Primary Judge to the full
Court. In re Bowman
ARREST, plaintiff entitled to costs of, as costs in the cause, although
less than £20 recovered. Solomon v. Johnston
See COSTS, 2.
ATTORNEY. 1. When an attorney has been changed, his lien for
professional services continues, and he will not be compelled
to deliver up papers upon which he has a lien, upon receiving
an undertaking that his taxed costs shall be paid. In re
Castle
195
AWARD. 1. L. contracted with J., for the sale and purchase of
"2000 head of cattle, more or less, bred on the Mole Station,
branded EL. Price to be 258, a head; £500 cash at the time
of delivery, and purchaser's promissory note for the residue
at twelve months date from the day of final delivery."
1. delivered 1054 cattle, which comprised the whole herd
bred on the Mole Station which could be found, and de-
manded payment. J. refused payment, and claimed damages
for the short delivery. The matter was referred to an arbi-
trator, under a reference of all matters in dispute relating to
the matters at issue between the parties under the contract.
The arbitrator awarded that J. should, within three days, pay
the sum of £250 in cash, and hand to L. his promissory note
for £1152 18s. The award added, "the above payments by
cash and note shall be accepted by L., in full satisfaction of
all claim by him against J." The Court (Stephen, C. J., dis-
sentiente) held the award bad, for not deciding how much
compensation J. was entitled to for short delivery, and set it.
aside. Ex parte Josephson
See CARRIER, 1. The Oriental Bank Corporation v. The
Queen
BILL OF SALE, purchase under, in trust for assignor, and in fraud
of his creditors. Humphery v. Roberts
BOND. 1. Declaration on a bond of indemnity alleged that R., being
indebted to A. in a certain sum of money, paid the plaintiffs
such amount, and obtained from the plaintiffs a draft on their
agent at Y. to pay that sum, to the order of A., and that
afterwards the drafts came into the hands of the defendants-
the same not being indorsed by A.—and the defendants pre-
sented it in that condition to the agent at Y. for payment,
and the agent refused payment on account of such want of
indorsement; whereupon the defendants requested the plain-
tiffs to pay the said sum, upon the defendants entering into a
bond for the purpose of indemnifying the plaintiffs against all
claims which might or could be made on foot of the said
d aft, in consequence of such want of indorsement; and the
plaintiffs accordingly paid the defendants the said sum, and
thereupon the defendants executed a bond to the plaintiffs, sub-
ject to a condition, whereby, after reciting the making of the
draft, and that A. had given the defendants authority to receive
the sum due on the draft, and that A. was absent and unable
to endorse the draft, and that the plaintiffs had, at the request
of the defendants, agreed to pay defendants the amount due
on the draft on receiving the indemnity thereby effected; the
condition of the bond was declared to be that if the defendants,
&c., did and should, &c., well and sufficiently save, defend,
keep harmless and indemnified, the plaintiffs, &c., from and
against all payments made by inadvertence or oversight or
otherwise, and from and against all accounts, suits, actions,
costs, charges, damages, expenses, claims, and demands, both
at law and in equity, which should be made, &c., in respect
of the said drafts, or the money payable in respect thereof,
then the bond should be void. The breach alleged was that
defendants have not well and sufficiently saved harmless, &c.,
the plaintiffs from and against all payments made as aforesaid,
and from and against all accounts, &c., as aforesaid, in respect
of the said drafts, and the money payable in respect thereof;
but, on the contrary, A. required from R. payment of his
debt, and R. thereupon demanded from the plaintiffs the re-
turn of the sums so paid by him to them for the draft, and the
plaintiffs were then compelled to, and did, pay R. the said
sum. Averment, that the defendants had notice of the
premises, and, although requested, refused to repay the
amount. Held, on demurrer, bad. The Oriental Bank Corpo-
ration v. Hart
78
2. To an action on a joint and several bond, executed by the de-
fendant with C. and K., he being their surety, conditioned to
secure the payment of all monies whatsoever which the plain-
tiffs should at any time pay for or lend to them at their
request, the defendant pleaded by way of defence on equitable
grounds, that C. and K. entered into an arrangement with
the plaintiffs for advances to be made to them during a period
of two years only, they being about to enter into partnership
for that term; and that the plaintiffs agreed to make such
advances during that period, on the partners entering into a
bond, with two sureties, to secure the repayment;-that the
defendant, at K.'s request, consented to become one of such
sureties; and that, in pursuance of the aforesaid arrangement,
the bond sued on was executed by C. and K., and received by
the plaintiffs as such security; and was executed by the de-
fendant, to secure advances made during the two years, and
not for any longer period-whereas the advances, for repay-
ment of which the plaintiffs are suing, where made wholly
after the expiration of that term. Held, on demurrer, good.
The Joint Stock Bank v. Mortimer
See CUSTOM, 1. Frazer v. Ecans
CAPIAS AD RESPONDENDUM, costs as to writ of Solomon v.
Johnston
CAPIAS AD SATISFACIENDUM, a writ of, may issue in cases of
tort, under the 87th section of the District Courts Act. Ex
parte Jewell
373
having issued against a defendant in an action of libel after
his sequestration, he is not entitled to be discharged. Webb
v. Wilton
Prohibition against the issue of, under the District Courts
Act.
Ex parte Gee
See INSOLVENT ACT, 3.
may issue against married woman having property in hands
of trustees under the 87th section of the District Courts Act.
Ex parte Harrey
144
CARRIER. 1. The Crown can become a common carrier.
The first count of a petition of right was against the Crown
as a common carrier, for not safely carrying goods of great
value.
The second count alleged, that in consideration that the
suppliants would deliver to the Crown certain goods, to be by
the Crown safely carried, &c., the Crown promised the sup-
pliants to safely carry, &c., and then stated that the sup
pliants del vered the goods to the Crown, and the Crown
received them on the terms aforesaid. Averment of the ful-
filment of all conditions precedent. Breach, that the Crown
did not safely carry the goods.
Plea, that the goods were taken from Her Majesty's custody
by robbers, by violence.
Held, on demurrer, a good plea to the second, but not to
the first count.
He'd also, that the second count disclosed a sufficient con-
sideration. The Oriental Bank Corporation v. The Queen 122
See LIEN, 1. Gallimore v. Moore
CATTLE STEALING ACT. 1. The sixth section of the Cattle
Stealing Act, 17 Vic., No. 3, enacts, that "if any person shall
take, use, or in any manner work any cattle, the property of
any other person, without the consent of the owner or other
person in lawful possession thereof," such person "shall be
guilty of a misdemeanor." Held, that the offence can only be
committed by the person taking, using, &c., the animal,
while in the owner's or some third person's possession; and
that the enactment did not extend to merely milking a cow,
which strayed into or was found upon the accused's land, and
was there so dealt with. Ex parte Bowman
CERTIFICATE, the delivery of a, of an article in bond, passes the
possession as well as the property in the article represented
by it. Frazer v. Erans
See CUSTOM, 1.
CERTIFICATE OF TITLE.
See REAL PROPERTY ACT, 1. Ex parte Smart
CHANGE OF ATTORNEY, practice as to In re Castle
CHEQUE. 1. Declaration against M. J. and J. M. J., "trading
under the name, style, or firm of Joshua Brothers," stated that
the defendants by their cheque or order for the payment of
money, directed to the Bank of Australasia, Sydney, required
the said Bank to pay No. 49, or bearer, £ 3s.; and the
plaintiffs became the bearers of the same. Averment of pre-
sentment, dishonour, and notice.
Plea, that the said cheque or order was and is in the
figures following, and not otherwise; that is to say, "No.
7117. Sydney, September 13, 1866. The Bank of Austra
lasia. Pay No. 49, or bearer, five pounds and three shillings
stirling, on account of Beemery stations. Cecil Guinness,"
Held, on demurrer, a good plea. Wilson v. Joshua 319
COLONIAL TREASURER.
See MANDAMUS, 1. Ex parte Mackenzie
CONSIDERATION, want of, for making promissory note. Brunker
CONSTRUCTION of statute. Mansfield v. Mayor, &c., of Sydney 17
of agreement. Lowe v. Josephson
CONTRACT, mutuality in. Morrison v. Lloyd
CORPORATION.
See SYDNEY CORPORATION, 1. Smart v. The Corporation of
Sydney
COSTS. 1. In proceedings in the District Court the Registrar has no
power to tax costs, except as between party and party; and
on taxation by him, the only costs that can be allowed for
proceedings in the cause in the Court, or which can be reason-
ably so deemed, are such charges as are specified in the Dis-
trict Court scale. But the Prothonotary may allow an
attorney his costs, as between attorney and client, for and in
respect of all business done in advising or assisting the client
with reference to the cause. Ex parte Castle
2. The plaintiff is entitled to the costs of the arrest of the defen-
dant as costs in the cause, although the amount recovered be
less than £20; at all events, unless there be an order of a
Judge depriving him of such costs. Solomon v. Johnston 255
after plea pais darrein continuance, Cummings v. Russell 368
See PRACTICE, 5.
COUNCILLORS, election of, by wards, upon division of municipality.
The Municipality of Bathurst v. Ashworth
election of, where there are separate wards in a municipality.
R. v. Gell
COUNCILLOR, an uncertificated insolvent may be elected, and hold
office. Ex parte Mossman
245
COVENANT. 1. Covenant for non-payment of £200. Plea, on
equitable grounds, that it was secured by a mortgage of land
with a power of sale, and that the plaintiff had sold the
property and purchased it at the sale for the amount, being
all which was due. Held, on demurrer, good. Kock v.
Kemp
107
2. Declaration against an executor stated a covenant entered
into by the testator with the plaintiff dum sola, that so long as
she lived and conformed to certain conditions she should
receive from him a certain annuity, payable half yearly, but
not to be anticipated by her; the same to be for her personal
use, free from the control, &c., of every husband, and claim-
ing such portion (only) of the annuity as had accrued since
his (the testator's) death.
Plea, that after the execution of the deed a marriage,
according to the laws of New South Wales, was duly had and
solemnised between the testator and the plaintiff, and the
testator and the plaintiff became and were man and wife.
Held, on demurrer, bad. Fitzgerald v. Fitzgerald
CREDITOR PETITIONING.
See INSOLVENT ACT, 2. Ex parte The Union Bank
CRIMINAL PRACTICE.
See FELONS APPREHENSION ACT, 1. R. v. Connell
CROSS ACTION.
CROWN, the, can become a common carrier. The Oriental Bank
Corporation v. The Queen
CUSTOM. 1. By the custom of Sydney, the delivery of a certificate
of an article in bond not merely passes the property in, but
also the possession of, the article represented by, it. Frazer
V. Ecans
DAMAGES. 1. In an action for refusing to freight the plaintiff's
ship with cattle for three trips, from Sydney to Otago, accord-
ing to an agreement that the plaintiff should supply the
fittings and the defendant the cattle, and that the nett pro-
ceeds should be equally divided between them, it appeared
that in order to enable him to make these trips the plaintiff
expended certain money in fittings. Held, that the measure
of damages was the surplus, after deducting the freight which
might have been earned in other quarters, from the money
thus expended in fittings, and the expense of taking the ship
to Otago in these trips. Morrison v. Lloyd
DEBT by husband released by marriage. Fitzgerald v. Fitzgerald 155
DECLARATIONS against interest. Norton v. Hosking
DEFAMATION ACT. 1. The 30th section of the Insolvent Act, 5
Vic., No. 17, enacts that the further execution of any judg-
ment or process against the person or estate of any insolvent
shall, "after the lodging of the order for sequestration, be
stayed." The 14th section of the Defamation Act, 11 Vic.,
No. 13, enacts that no law for the relief of insolvent debtors
shall extend or be construed to extend to affect or discharge
from his liability any person who shall be indebted for any
penalty, damages, or costs for the printing or publishing of
any blasphemous, seditious, or defamatory words or libel.
Semble (per Stephen, C. J.), that the latter section does not
repeal the former, and that under the above circumstances the
defendant could not be arrested. Ex parte Gee
355
See INSOLVENT ACT, 3.
2. The 13th section of the Defamation Act, 11 Vic., No. 13,
enacts, that "whenever any person shall be convicted either
in a civil or criminal proceeding, of printing or publishing a
defamatory article, the plaintiff or prosecutor, in whose favour
judgment shall have been given, shall be at liberty, under
his writ of execution, to levy the costs, damages, penalties,
and expenses named therein, out of the whole of the types,
presses, or printing materials whatsoever, belonging to the
firm whose types, presses, or printing materials, or any part
thereof, may have been used in printing such defamatory
article, as well as out of the property of the defendant on the
record." Held (Hargrave, J., dissentiente), that the person
whose types, &c., may be seized, is some person other than
the defendant on the record; and, therefore, where the defen-
dant in an action of libel published in his newspaper became
insolvent, after execution levied on his types, &c., the types.
&c., passed to his official assignee under the 30th section of
the Insolvent Act, 5 Vic., No. 17. Webb v. Humphrey 361
See LANDLORD AND TENANT, 1.
DISTRICT COURT, principles regulating
action will not lie on judgment of Grerille v. Bird
DISTRICT COURTS ACT. 1. The 87th section of the District
Court Act enacts that, "whenever any sum of money shall
have been recovered by the judgment of any District Court,
and the judgment creditor shall show to the satisfaction of a
Judge of the Supreme Court, or of any District Court, that
such sum of money has been recovered, and that the debt was
fraudulently contracted, or that the judgment debtor conceals
any goods, &c., such Judge may authorise the Registrar of
the said District Court to issue a writ of capias ad satisfacien-
dum, &c." On motion for a habeas corpus to discharge a
defendant in an action of tort from custody under a ca, sa.
issued by a District Court Judge, Held (Stephen, C. J., dissen-
tiente). that the words are large enough to include cases of
tort as well as of debt, and the writ was refused. Ex parte
Jewell
373
2. The Registrar need not be made a party to a rule for a pro-
hibition. Ex parte Gee
3. 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
what are means" within the 87th section of the Ex parte
Gee
See INSOLVENT ACT, 3. Ex parte Gee
jurisdiction of, over defendant, where no service, and notice
of suit until after judgment. Ex parte Bucknell
See PROHIBITION, 1. Ex parte Bucknell
See WAY, 1. Friend v. Luke
See CHEQUE, 1. Wilson v. Joshua
ELECTION OF COUNCILLORS upon division of municipality into
wards. The Municipality of Bathurst v. Ashworth
by wards, where there are separate wards in a municipality.
R. v. Gell
EVIDENCE. 1. On the trial of A. for robbery and wounding, in
company with two others, a witness was asked whether he
had ever known A. by the name of "Blacksmith." It ap-
|