vided, and further, that it should be lawful for the Legislature of Victoria, by an Act or Acts, to define the privileges, immunities, and powers to be held, enjoyed, and exercised by the Council or Assembly, and by the members thereof respectively: provided that no such privileges, immunities, or powers should exceed those then held, enjoyed, and exercised by the Commons House of Parliament, or the members thereof. And whereas it is expedient to exercise the power given by the said recited Act as hereinaftermentioned be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of Victoria in this present Parliament assembled, and by the authority of the same, as follows: 1st. The Legislative Council and Legislative Assembly of Victoria, respectively, and the committees and members thereof respectively, shall hold, enjoy, and exercise such and the like privileges, immunities, and powers as, and the privileges, immunities, and powers of the said council and assembly respectively, and of the committees and members thereof respectively, are hereby defined to be the same as, at the time of the passing of the said recited Act were held, enjoyed, and exercised by the Commons House of Parliament of Great Britain and Ireland, and by the committees and members thereof, so far as the same are not inconsistent with the said recited Act, whether such privileges, immunities, or powers were so held, possessed, or enjoyed by custom, statute, or otherwise." and they could not, therefore, incorporate all its undefined customs and privileges. The Attorney-General, Q.C., Sir H. Cairns, Q. C., Coleridge, Q.C., and Kekewich, for the respondents, were not called on. LORD CRANWORTH, in delivering the opinion of the Committee, said that in the former cases respecting the privileges of Colonial Legislatures, which had been referred to in the argument of the appellant, very important points were involved. These points had, however, been all set at rest, and no doubt now remained respecting them. The history of the proceeding was quite simple. The Colonial Legislature had passed an Act establishing the colonial constitution, and this Act was adopted and ratified in an Act of the British Parliament, and the British Act empowered the Parliament of the colony to define the privileges it should possess, so that these should not exceed those possessed at the date of the Act by the British House of Commons. In exercise or intended exercise of this power, the Colonial Parliament had declared that their privileges should be those of the British House of Commons. Now in this case no principle was involved. The case turned solely upon the true interpretation of the word "define." There could be little question on this ground. The attempt of the appellant to give it the meaning of "enumerate" was plainly untenable. The word "define," in the opinion of the Committee, was equivalent to "declare." It had been urged that when the Colonial Legislature was required to define its privileges, it was bound to specify one by one the privileges it decided upon claiming; but it would be plainly impossible, and could not be intended, that it was to go by an exhaustive process through the whole series of Parliamentary privileges. It seemed that the Colonial Parliament had clearly defined the privileges it claimed, and could not have done so in any way more convenient. But it had been argued that the Lush, Q.C., Karslake, Q.C., and Garth, for the appellant, contended that the colonial legislature had not properly exercised the power delegated to them by the British statute. They ought to have specified which were the powers and privileges they claimed. At the time of the passing of this Act, these privileges did not exist as part of the Common Law in the colony, Kielley v. Carson, 4 Moo. P. C. C. 63, judgment colonists were thereby forced to refer to the law of a p. 86; Fenton v. Hampton, 11 Moo. P. C. C. 347. The word "define" implied specification or exact limitation; but at that time the law of the British Parliament had not been, even if now was, settled with complete certainty. It was the duty of the Colonial Parliament to point out to the colonists, what were the obligations to which they were to be subject, and they had not done so with sufficient clearness by referring, in a general way, to the law of another country, which was not contained in any distinct code. The Legislature had already established the constitution of the colony and of its Parliament. To import into that constitution the law and custom of the British House of Commons was to make a new code, and virtually to incorporate the law of a foreign country. It was plain that they could not have thus incorporated into their law the whole of the bye-laws of the British House, foreign country in order to ascertain the law under which they were to be placed. This use of the term 'foreign," as applied to England, was, to say the least, a very extraordinary one. It was, no doubt, true that the lex et consuetudo Parliamenti did not apply as part of the Common Law to the colony; but certainly in no sense could the law regarding the British Parliament be called foreign law in the colony, or England be said to stand to it in the relation of a foreign country. The opinion of the Committee was, that the word "define" in the British Act was equivalent to the word "declare," and that the power given by that Act had been exercised by the Parliament of Victoria in a very reasonable and proper mode. Minute.-Appeal dismissed with costs. Lord Chancellor. 29 JAN. 1864. Practice FOLEY V. MAILLARDET. Service upon Defendant Abroad— Cons. Ord. X. r. 7—2 Will. 4, c. 33—4 & 5 Will. 4, c. 82. The Court has no power to order service of a copy of the bill upon a defendant who is out of the territorial jurisdiction, except in cases falling within 2 Will. 4, c. 33, or 4 & 5 Will. 4, c. 82. Cookney. Anderson (2 N. R. 141) adhered to. Semble, the facts which give the Court jurisdiction to order service abroad should appear on the face of the bill. This was an appeal motion, by which it was sought to discharge an order for service of a copy of the bill upon a defendant out of the jurisdiction of the Court. The Vice-Chancellor Stuart refused to discharge the order, and the defendant appealed. The facts of the case are sufficiently shown in the report of the hearing of the original motion, 3 N. R. 361. Graham Hastings for the appellant. 1st. It is only in cases falling within one or other of the Acts of 2 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82, that the Court has power to direct service of a copy of the bill on a defendant who is out of the territorial jurisdiction, Cookney v. Anderson, 2 N. R. 141. 2nd. The plaintiff has inserted in his bill an allega tion which was intended to bring the case within the later Act; such allegation is, however, insufficient, even assuming it to be true. 3rd. The defendant, by affidavit, denies that she has any property whatever of the nature specified in either of the above-mentioned Acts; and I am entitled to read this affidavit to rebut the allegation of the plaintiff, Davidson v. The Marchioness of Hastings, 2 Whitmore v. Ryan, 4 Hare, 612; 4th. In the case of Whitmore v. Ryan, upon which the plaintiff would rely, the order for service abroad was made under the General Orders of May, 1845 (issued in pursuance of 3 & 4 Vict. c. 94), to which the effect of an Act of Parliament was given by 4 & 5 Vict. c. 52. The order for service in the present case was made under the Consolidated Order X., rule 7 (issued in pursuance of 15 & 16 Vict. c. 86), to which no such statutory effect has been given. of the 10th Consolidated Order, rule 7; in either case the language of the Order was unrestricted. As to legislative sanction and statutory effect, the later Orders were put on the same footing as the Orders of 1845, by 15 & 16 Vict. c. 86, ss. 63, 64. He also referred to Official Manager of National Insurance Company A reply was not heard. THE LORD CHANCELLOR adhered to the opinion he had expressed in Cookney v. Anderson. The power of the Court to order service abroad was conferred by the two statutes of Will. 4 to which reference had been made, and by those statutes only. It followed that the power existed only in cases within one or other of those statutes. The Consolidated Orders must be so construed as to comply with and not transgress, the powers of the Court from which they emanated; and the words "any suit," in the 7th rule of the 10th Consolidated Order, must therefore be restricted to denote, and to denote only, a suit in which the Court has power to order service abroad, in other words, a the Acts of Will. 4. suit which comes within the description contained in dant had under her control "divers parliamentary and The allegation in the plaintiff's bill, that the defen other stocks and funds, and also divers real and personal securities, &c.," if true, was insufficient to bring the present case within the purview of those Acts. The order under appeal must be reversed, and the order for service of a copy of the bill on the defendant in Scotland must be discharged; but, having regard to the length of time during which the erroneous practice had prevailed, without costs. Prendergast, for the plaintiff, relied upon the practice India, and the bill was filed under the following cirestablished by the case of cumstances : Joseph Willis, a merchant in Calcutta, became insolvent in January, 1863, and by an order of the Court for the Relief of Insolvent Debtors at Calcutta, all his real and personal estate and effects both within the limits of the charter of the East India Company and without, were vested in the official assignee for the time being of that Court. At the time of his insolvency Joseph Willis was entitled in possession for life, without impeachment of waste, to certain lands in England, with remainder to his brother the defendant Daniel Willis for his life, with remainder to his nephew the defendant H. R. Willis in tail male. The estate in question was managed and farmed by the defendant Daniel Willis, who had for many years been in possession or receipt of the rents, profits, and produce of such estate as the agent and confidential manager of his brother. In consequence of Joseph Willis's insolvency, the plaintiff, as his official assignee, instructed his solicitors, Messrs. Graham & Lyde, and appointed Thomas Graham, one of the firm, to be his lawful attorney, to do all acts necessary for obtaining the possession of, and realising, the property of the insolvent in England. The 15th paragraph of the bill alleged that "At the time of the said insolvency there was upon the said freehold and leasehold hereditaments a large number of timber and other trees and plantations, and underwood of very considerable value, to which the plaintiff became entitled as such assignee as aforesaid, and which it was his duty to cut and sell for the benefit of the insolvent's estate. The plaintiff might and would have sold the said timber and other trees, plantations, and underwood for a large sum of money for the benefit of the said creditors." The 16th paragraph alleged that, "On the 6th day of August last, the defendant Daniel Willis received information from India of the aforesaid insolvency of the said Joseph Willis, and that he had been adjudged an insolvent by the said Court in India; and he at the same time received information that the said Joseph Willis was in a bad state of health, and that his life was most uncertain." The 17th paragraph alleged that, "On or shortly after the 6th day of August last the defendant Daniel Willis communicated to the defendant Henry Rodolph Willis the fact of his said uncle's insolvency and the precarious state of his health." The 18th paragraph alleged that, "The said Messieurs Graham & Lyde, however, were wholly ignorant of the precarious state of health of the said Joseph Willis, and the defendants concealed the fact from the said Messieurs Graham & Lyde, and the said Messieurs Graham & Lyde were, in fact, wholly ignorant thereof until after the death of the said Joseph Willis." The 19th paragraph alleged that, "Under the circumstances aforesaid, it was for the interest of the defendants as long as possible to delay the plaintiff, and prevent him from entering into possession of the said freehold and leasehold hereditaments, and from cutting and selling the timber and other trees and plantations, and underwood thereon, and from taking down or removing the fixtures, and quasi-fixtures, and other articles and things in or upon or affixed to the said mansion-house and premises, and they were desirous of delaying the plaintiff and preventing his obtaining the benefit of the said property. Accordingly, and to that end, the defendant Daniel Willis, with the concurrence of the defendant Henry Rodolph Willis, from time to time, by himself and his solicitors, made promises to the said Messieurs Graham & Lyde to supply the said information, or such information as would enable them to act for the plaintiff on behalf of the said insolvent's creditors, and to realise the aforesaid property, but purposely omitted to fulfil the said promises, and much correspondence took place between the said Messieurs Graham & Lyde, on the part of the plaintiff and the defendants and their solicitors in reference to the matters aforesaid, and the defendants from time to time put the said Messieurs Graham & Lyde off. The said Messieurs Graham & Lyde relied on the promises of the said defendant Daniel Willis, and on the faith thereof forbore to take proceedings to compel the performance of the said promises, and the furnishing the aforesaid information, but ultimately the said Messieurs Graham & Lyde threatened to take legal proceedings to enforce the plaintiff's said rights, and thereupon the defendant Daniel Willis signed, and on the 22nd day of October last, delivered to the said Messieurs Graham & Lyde a paper entitled 'Re Jos. Willis. Mr. Daniel Willis's report as to property,' which gave the said Messieurs Graham & Lyde some information as to the said property. Save the reason hereinbefore-mentioned, there was no reason why the said information contained in the said paper should not have been given to the plaintiff long before the said 22nd day of October. In fact the said paper had been prepared some weeks before it was delivered." The bill then stated, that it was under such circumstances that the plaintiff, by his attorney, entered into an agreement with the defendants, dated the 30th of October, 1863, which agreement after reciting the facts, declared, that it was "mutually agreed by and between the said Daniel Willis and Henry Rodolph Willis, and each of them, apart from the other, on the one part, and the said John Cochrane on the other part, as follows:-1st. That the said John Cochrane as such assignee as aforesaid, shall be and be deemed and taken as entitled to the said timber-like trees, and other trees, plantations, and underwood in or upon the said hereditaments and premises, and the said fixtures, and quasi-fixtures, articles, and things in or about the same as if the same had been respectively felled, cut down, rooted up, removed, and carried away by him on the 15th day of August last. 2nd. That the said Daniel Willis and H. R. Willis, to the extent of and according to their respective interests in the said hereditaments and premises, present or future, will carry out this agreement. 3rd. That nothing herein contained shall be construed as Joseph Willis died at Calcutta on the 24th of September, 1863, a few weeks before the execution of the agreement; but that fact was not known to Messrs. Graham and Lyde until the 5th of November, 1863. Upon receiving information of the decease of Joseph Willis, the defendants barred the entail. Under these circumstances, the bill charged concerning the agreement that "the defendants now wholly deny the validity thereof, or that the plaintiff has any right or title to relief at law or in equity against the defendants in the premises, and they threaten and intend to cut down, remove, and sell, or otherwise dispose of some of the said timber and other trees, plantations and underwood, fixtures and quasi-fixtures, articles and things, and apply the proceeds to their own use, and have already cut down some of the said timber and other trees, plantations and underwood, and have sold, or contracted to sell, other parts thereof;" and, further, "that the said agree. ment of the 30th of October last, was and is a good and valid agreement, and that it ought to be declared by the decree of this honourable Court that, under the circumstances aforesaid, the said timber and other trees, plantations and underwood, and the said fixtures, and quasi-fixtures, articles and things, are to be in equity considered as if the same had been respectively felled, removed and carried away by the plaintiff on the 15th day of August last; and that the defendants are trustees for the plaintiff, of the said timber and other trees, underwood, fixtures, quasi-fixtures, articles and things, or that otherwise the defendants, are bound to make good to the plaintiff, as such assignee as aforesaid, the value thereof, and ought to be decreed to pay and make good the same accordingly." And the plaintiff prayed, 1st. "That it may be declared by the decree of this honourable Court that, under the circumstances aforesaid, the said timber and other trees, plantations and underwood, and the said fixtures and quasi-fixtures, articles and things, are to be in equity considered as if the same had been felled, removed, and carried away by the plaintiff on the said 15th day of August last." 2nd. "That it may also be declared that the defendants are trustees for the plaintiff of the said timber and other trees, plantations and underwood, fixtures and quasi-fixtures, articles and things." 3rd. "Or otherwise, that it may be declared that the defen dants are bound to make good to the plaintiff the value of the said timber, and other trees, plantstions and underwood, fixtures and quasi-fixtures, articles and things, and that the defendants may be decreed to pay to the plaintiff such value accordingly," and for an injunction. The bill was demurred to by the defendants for want of equity, and the demurrer was allowed by the Master of the Rolls on the 11th of December, 1863. Baggallay, Q.C., and G. L. Russell, for the plaintiff. The agreement is good, and is binding on all parties. The plaintiff has a specific claim against the timber. He was induced by the representations of the defendants to delay the assertion of his rights. The conduct pursued by the defendants has resulted in this, that the plaintiff has sustained a loss and the defendants have obtained a benefit, and with that end in view the defendants purposely omitted fulfilling their promises, on the faith of which the plaintiff waived the immediate assertion of his legal rights. This therefore shows a clear case for the intervention of a Court of Equity. On the point of acquiescence and standing by, they cited, Head v. Godlee, John. 536; Horne v. Barton, 8 De G. M. & G. 587, 601. Selwyn, Q.C., Hobhouse, Q.C., and Lawrance, for the defendants. The present is a question of jurisdiction. It is as much for the interest of the plaintiff as of the defendants that this question should be decided on demurrer. Joseph Willis died at Calcutta previously to the execution of the agreement. Mr. Cochrane must have known that fact previously to the execution of the agreement by his attorney in England, and as the life of Joseph Willis was the essence of the agreement, the failure of the life previously to the execution renders the agreement worthless. G. L. Russell, in reply. KNIGHT BRUCE, L.J., said that, assuming the truth of the facts alleged in the bill, and that they were well pleaded, he could not take upon himself to declare that the plaintiff had no equity. Indeed, the question appeared to be one of difficulty. He should at the present stage decline to say more, but that fact in itself was a sufficient reason for overruling the demurrer. At p. 423 of Mr. Morgan's treatise on the "Chancery Acts and Orders" (3rd ed.), he found it stated that "where there is a doubtful question on a legal title, the Court will not decide the question on demurrer, notwithstanding the inclination of the Court be in favour of the defendant, but will overrule the demurrer without prejudice to the defendant's insisting on the same matters by way of answer." His Lordship thought that that principle was equally and as strongly applicable to a case where there was a doubtful question on an "equitable title," as where the doubtful question was on a "legal title." He considered therefore that the demurrer must be overruled without prejudice to any defence that the defendants might make by way of answer. Costs to be costs in the cause. Deposit returned. TURNER, L.J., concurred in thinking that there was By an agreement dated the 21st of February, 1848, and made between Harmer of the one part and Young of the other part, it was agreed that the "Sun " newspaper should thenceforth be carried on by Harmer, and that for that purpose he should be entitled to occupy certain premises adjoining No. 112, Strand; that Young should thenceforth be printer, in the present instance a question that ought to be publisher, and editor of the paper, at a yearly salary decided at the hearing. Creditors' Deed-Liability of Inspectors- If under an inspectorship deed, the inspectors are themselves to carry on the debtor's business, they will be liable for all receipts and payments in respect of the business; but if the deed provides that the debtor is to carry on the business under their control and pay his receipts to them, and does not give them power to remove him, then, in the absence of culpable negligence, they will only be liable to account for the application of the sums actually received by them. ▲ creditors' deed provided that, after certain mortgages had been paid, the debtor should carry on his business under the control of inspectors, and it gave one of the mortgagees the option of either continuing in possession until the mortgages were paid, or "allowing the inspectors to manage the business on behalf of him and them": Held, that the inspectors, while they were allowed by the mortgagee to manage, were only responsible to the same extent as they would have been after the mortgages had been paid. The question to be decided in this case was, to what extent inspectors under an inspectorship deed were liable for the receipts and payments of the debtor carrying on his business under inspection. In 1848, Murdo Young was the owner of the copyright and goodwill of the "Sun" newspaper, and of the printing machinery and stock-in-trade of the newspaper, subject, as to one-fourth, to a mortgage for 20007. and interest to the three trustees of an assurance society, hereinafter referred to as "the first mortgagees," and as to the entirety to a mortgage for 6,8007. and interest to James Harmer. Young was also the owner of the leasehold premises No. 112, Strand, which were used partly as a dwelling-house and partly as the offices of the newspaper, subject to the mortgage for 6,8007. and interest to Harmer. Harmer was mortgagee in possession of the whole of the property. of 5201. payable weekly, and should continue so for one year at least from that date; but that Young was not to have any control over, or in any manner interfere with, the receipts or expenditure in respect of the "Sun" newspaper, or to have any authority to use Harmer's name or pledge his credit in any manner whatsoever. The inspectorship deed was dated the 31st of July, 1848, and made between the first mortgagees of the first part, Harmer of the second part, Young of the third part, James Low and Joseph Clayton, the inspectors, of the fourth part, and such of Young's creditors as should execute of the fifth part. It recited (inter alia) the agreement of the 21st of February, 1848, and that the "Sun" newspaper had since been carried on by Harmer on the footing of that agreement, and that there was then due to him 6,3971. 6s. for principal and interest, and 1,0907. 6s. 4d. as the balance of his receipts and payments in respect of the newspaper since the 21st of February, and that the amount due to the first mortgagees was 1,9761. 8s. 5d. It further recited that at a meeting of Young's creditors it had been satisfactorily made to appear to them by Young, that by reason of unforeseen losses and obstacles in trade, he was unable to pay the demands upon him, but that the net profits of the business, after paying rents, taxes, salaries, wages, and outgoings, including Young's salary of 101. a week, were upwards of 20007. a year, and that the first mortgagees and Harmer were willing, after receiving 1,4007. a year between them, to allow the residue of whatever profit might be made to be divided among Young's other creditors. The deed next recited that it had been mutually agreed between the several parties thereto, that until the whole of the said sums of 1,976l. 8s. 5d., and 6,3971. 6s., with interest and costs, should have been repaid to the first mortgagees and Harmer, the newspaper should continue to be carried on by Harmer, his executors, &c., with the same conditions as to the printing, publishing, and editing thereof by Young, and as to the salary to be paid to him as such printer, publisher, and editor as were named in the agreement of the 21st of February; and that the moneys to be received by him or them should be applied in the manner thereinafter mentioned; and that after full payment to the first mortgagees and Harmer respectively of the said sums of 1,9761. 8s. 5d. and 6,3961. 6s., and interest and costs, and until the whole of the several sums of money owing to the parties thereto of the fifth part should have been repaid, together with all costs, &c., properly incurred, Young should be permitted to |