« AnteriorContinuar »
vided, and further, that it should be lawful for the and they could not, therefore, incorporate all its unLegislature of Victoria, by an Act or Acts, to define defined customs and privileges. the privileges, immunities, and powers to be held,
The Attorney-General, Q.C., Sir H. Cairns, Q.C., enjoyed, and exercised by the Council or Assembly, and by the members thereof respectively : provided Coleridge, Q.C., and Kekewich, for the respondents, that no such privileges, immunities, or powers should were not called on. exceed those then held, enjoyed, and exercised by the
LORD CRANWORTH, in delivering the opinion of the Commons House of Parliament, or the members Committee, said that in the former cases respecting thereof. And whereas it is expedient to exercise the the privileges of Colonial Legislatures, which had power given by the said recited Act as hereinafter- been referred to in the argument of the appellant, mentioned : be it therefore enacted by the Queen's very important points were involved. These points Most Excellent Majesty by and with the advice and had, however, been all set at rest, and no doubt now consent of the Legislative Council and Legislativo remained respecting them. The history of the proAssembly of Victoria in this present Parliament ceeding was quite simple. The Colonial Legislature assembled, and by the authority of the same, as had passed an Act establishing the colonial constitu
tion, and this Act was adopted and ratified in an Act 1st. The Legislative Council and Legislative Assem- of the British Parliament, and the British Act embly of Victoria, respectively, and the committees and powered the Parliament of the colony to define the members thereof respectively, shall hold, enjoy, and privileges it should possess, so that these should not exercise such and the like privileges, immunities, and exceed those possessed at the date of the Act by the powers as, and the privileges, immunities, and powers British House of Commons. of the said council and assembly respectively, and of
In exercise or intended exercise of this power, the the committees and members thereof respectively, are Colonial Parliament had declared that their privileges hereby defined to be the same as, at the time of the should be those of the British House of Commons. passing of the said recited Act were held, enjoyed, and
Now in this case no principle was involved. The exercised by the Commons House of Parliament of case turned solely upon the true interpretation of the Great Britain and Ireland, and by the committees and word “define." There could be little question on members thereof, so far as the same are not incon- this ground. The attempt of the appellant to give it sistent with the said recited Act, whether such privi- the meaning of "enumerate” was plainly untenable. leges, immunities, or powers were so held, possessed, The word " define,” in the opinion of the Committee, or enjoyed by custom, statute, or otherwise."
was equivalent to “declare.” It had been urged that
when the Colonial Legislature was required to define Lush, Q.C., Karslake, Q.C., and Garth, for the its privileges, it was bound to specify one by one the appellant, contended that the colonial legislature had privileges it decided upon claiming; but it would be not properly exercised the power delegated to them plainly impossible, and could not be intended, that it by the British statute. They ought to have specified was to go by an exhaustive process through the whole which were the powers and privileges they claimed. series of Parliamentary privileges. It seemed that the At the time of the passing of this Act, these privileges Colonial Parliament had clearly defined the privileges did not exist as part of the Common Law in the it claimed, and could not have done so in any way
more convenient. But it had been argued that the Kielley v. Carson, 4 Moo. P. C. C. 63, judgment colonists were thereby forced to refer to the law of a p. 86;
foreign country in order to ascertain the law under Penton v. Hampton, 11 Moo. P. C. C. 347.
which they were to be placed. This use of the term The word “define” implied specification or exact
"foreign,” as applied to England, was, to say the limitation ; but at that time the law of the British Par- least, a very extraordinary one. It was, no doubt, liament had not been, even if now was, settled with true that the lex et consuetudo Parliamenti did not complete certainty. It was the duty of the Colonial apply as part of the Common Law to the colony; Parliament to point out to the colonists, what were the but certainly in no sense could the law regarding the obligations to which they were to be subject, and they British Parliament be called foreign law in the colony, had not done so with sufficient clearness by referring, or England be said to stand to it in the relation of a in a general way, to the law of another country, which foroign country. was not contained in any distinct code. The Legis
The opinion of the Committee was, that the word lature had already established the constitution of the
"define" in the British Act was equivalent to the colony and of its Parliament. To import into that word “ declare," and that the power given by that Act constitution the law and custom of the British House of had been exercised by the Parliament of Victoria in a Commons was to make a new code, and virtually to in.
very reasonable and
mode. corporate the law of a foreign country. It was plain
Minute. - Appeal dismissed with costs. that they could not have thus incorporated into their law the whole of the bye-laws of the British House,
of the 10th Consolidated Order, rule 7 ; in either case Lord Chancellor.
} FOLEY v. MAILLARDET. the language of the Order was unrestricted. As to 29 JAX. 1864.
legislative sanction and statutory effect, the later Practice Service upon Defendant Abroad
Orders were put on the same footing as the Orders of
1845, by Cons. Ord. X. r. 1—2 Will. 4, c. 33—4 & 5
15 & 16 Vict. c. 86, ss. 63, 64. Mill. 4, c. 82.
He also referred to The Court has no power to order service of a copy of
Official Manager of National Insurance Company the bill upon a defendant who is out of the territorial
v. Carstairs, 2 N. R. 348 ; jurisdiction, except in cases falling within 2 Will. 4,
Steele v. Stuart, 3 N. R. 291. c. 33, or 4 & 5 Will. 4, c. 82.
A reply was not heard. Cookncy v. Anderson (2 N. R. 141) adhered to.
Semble, the facts which gire the Court jurisdiction to THE LORD CHANCELLOR adhered to the opinion he order serrice abroad should appear on the face of the had expressed in Cookney v. Anderson. The power bill.
of the Court to order service abroad was conferred by This was an appeal motion, by which it was sought the two statutes of Will. 4 to which reference had been to discharge an order for service of a copy of the bill made, and by those statutes only. It followed that upon a defendant out of the jurisdiction of the Court. the power existed only in cases within one or other of The Vice-Chancellor Stuart refused to discharge the those statutes. The Consolidated Orders must be so order, and the defendant appealed.
construed as to comply with and not transgress the The facts of the case are sufficiently shown in the powers of the Court from which they emanated ; and report of the hearing of the original motion, 3 N. R. the words “any suit," in the 7th rule of the 10th 361.
Consolidated Order, must therefore be restricted to
denote, and to denote only, a suit in which the Court Graham Hastings for the appellant.
1st. It is only in cases falling within one or other has power to order service abroad, in other words, a of the Acts of 2 Will. 4, c. 33, and 4 & 5 Will. 4, the Acts of Will. 4.
suit which comes within the description contained in C. 82, that the Court has power to direct service of a copy of the bill on a defendant who is out of the dant had under her control “divers parliamentary and
The allegation in the plaintiff's bill, that the defenterritorial jurisdiction,
other stocks and funds, and also divers real and perCookney v. Anderson, 2 N. R. 141. 2nd. The plaintiff has inserted in his bill an allega- the present case within the purview of those Acts.
sonal securities, &c.," if true, was insufficient to bring tion which was intended to bring the case within the later Act; such allegation is, however, insufficient, order for service of a copy of the bill on the defendant
The order under appeal must be reversed, and the even assuming it to be true.
in Scotland must be discharged; but, having regard to 3rd. The defendant, by affidavit, denies that she the length of time during which the erroneous practice has any property whatever of the nature specified in
had prevailed, without costs. either of the above-mentioned Acts; and I am entitled to read this affidavit to rebut the allegation of the plaintifr, Davidson V. The Marchioness of Hastings, 2 Lords Justices.
} COCHRANE V. WILLIS. Keen, 509 ;
29, 30 JAN. 1864. Tlhitmore v. Ryan, 4 Hare, 612 ;
Demurrer-Equitable Title-Hearing. Innes v. Mitchell, 1 De G. & J. 423 ; Maclcan v. Dawson, 4 De G. & J. 150.
Where there is a doubtful question on an equilable 4th. In the case of Whitmore v. Ryan, pon which title, the Court will not decide the question on demurrer, the plaintiff would rely, the order for service abroad but will overrule the demurrer without prejudice to any was made under the General Orders of May, 1845 defence that the defendants may make by way of (issued in pursuance of 3 & 4 Vict. c. 94), to which answer. the effect of an Act of Parliament was given by 4 & 5
This was an appeal against an order of the Master of Vict. c. 52. The order for service in the present case the Rolls
, allowing a demurrer to the plaintiff's bill was made under the Consolidated Order X., rule 7
for want of equity. (issued in pursuance of 15 & 16 Vict. c. 86), to which
The plaintiff was the official assignee of the Court no such statutory effect has been given.
for the Relief of Insolvent Debtors at Calcutta in Prendergast, for the plaintiff, relied upon the practice India, and the bill was filed under the following cirestablished by the case of
cumstances Whitmore v. Ryan (loc. cit.),
Joseph Willis, a merchant in Calcutta, became in 1846, and ever since followed. The words of the insolvent in January, 1863, and by an order of the 33rd Order of May, 1845, were the same as the words Court for the Relief of Insolvent Debtors at Calcutta,
all his real and personal estate and effects both within or removing the fixtures, and quasi-fixtures, and the limits of the charter of the East India Company and other articles and things in or upon or affixed to the without, were vested in the official assignce for the said mansion-house and premises, and they were time being of that Court. At the time of his insolv. desirous of delaying the plaintiff and preventing his ency Joseph Willis was entitled in possession for life, obtaining the benefit of the said property. Accordingly, without impeachment of waste, to certain lands in and to that end, the defendant Daniel Willis, with the England, with remainder to his brother the defendant concurrence of the defendant Henry Rodolph Willis, Daniel Willis for his life, with remainder to his nephew from time to time, by himself and his solicitors, mado the defendant H. R. Willis in tail male. The estate promises to the said Messieurs Graham & Lyde to in question was managed and farmed by the defendant supply the said information, or such information as Daniel Willis, who had for many years been in pos- would enable them to act for the plaintiff on behalf of session or receipt of the rents, profits, and produce of the said insolvent's creditors, and to realise the aforesuch estate as the agent and confidential manager of said property, but purposely omitted to fulfil the said his brother.
promises, and much correspondence took place beIn consequence of Joseph Willis's insolvency, the tween the said Messieurs Graham & Lyde, on the part plaintiff, as his official assignee, instructed his solicitors, of the plaintiff and the defendants and their solicitors Messrs. Graham & Lyde, and appointed Thomas Gra- in reference to the matters aforesaid, and the defenham, one of the firm, to be his lawful attorney, to do dants from time to time put the said Messieurs all acts necessary for obtaining the possession of, and Graham & Lyde off. The said Messieurs Graham & realising, the property of the insolvent in England. Lyde relied on the promises of the said defendant
The 15th paragraph of the bill alleged that—"At Daniel Willis, and on the faith thereof forbore to the time of the said insolvency there was upon the take proceedings to compel the performance of the said freehold and leasehold hereditaments a large said promises, and the furnishing the aforesaid infornumber of timber and other trees and plantations, and mation, but ultimately the said Messieurs Graham & underwood of very considerable value, to which the Lyde threatened to take legal proceedings to enforce plaintiff became entitled as such assignee as aforesaid, the plaintiff's said rights, and thereupon the defenand which it was his duty to cut and sell for the dant Daniel Willis signed, and on the 22nd day of benefit of the insolvent's estate. The plaintiff might October last, delivered to the said Messieurs Graham and would have sold the said timber and other trees, & Lyde a paper entitled 'Re Jos. Willis. Mr. Daniel plantations, and underwood for a large sum of money Willis's report as to property,' which gave the said for the benefit of the said creditors."
Messieurs Graham & Lyde some information as to the The 16th paragraph alleged that, “On the 6th day said property. Save the reason hereinbefore-menof August last, the defendant Daniel Willis received tioned, there was no reason why the said information information from India of the aforesaid insolvency of contained in the said paper should not have been the said Joseph Willis, and that he had been adjudged given to the plaintiff long before the said 22nd day of an insolvent by the said Court in India ; and he at the October. In fact the said paper had been prepared same time received information that the said Joseph some weeks before it was delivered." Willis was in a bad state of health, and that his life The bill then stated, that it was under such circumwas most uncertain."
stances that the plaintiff, by his attorney, entered into The 17th paragraph alleged that, “On or shortly an agreement with the defendants, dated the 30th after the 6th day of August last the defendant Daniel of October, 1863, which agreement after reciting the Willis communicated to the defendant Henry Rodolph facts, declared, that it was “mutually agreed by and Willis the fact of his said uncle's insolvency and the between the said Daniel Willis and Henry Rodolph precarious state of his health.”
Willis, and each of them, apart from the other, on The 18th paragraph alleged that, “The said Mes the one part, and the said John Cochrane on the other sieurs Graham & Lyde, however, were wholly ignorant part, as follows :-1st. That the said John Cochrane of the precarious state of health of the said Joseph as such assignee as aforesaid, shall be and be deemed Willis, and the defendants concealed the fact from and taken as entitled to the said timber-like trees, the said Messieurs Graham & Lyde, and the said and other trees, plantations, and underwood in or Messieurs Graham & Lyde were, in fact, wholly igno- upon the said hereditaments and premises, and the rant thereof until after the death of the said Joseph said fixtures, and quasi-fixtures, articles, and things Willis."
in or about the same as if the same had been respecThe 19th paragraph alleged that, “ Under the cir- tively felled, cut down, rooted up, removed, and cumstances aforesaid, it was for the interest of the carried away by him on the 15th day of August last. defendants as long as possible to delay the plaintiff, 2nd. That the said Daniel Willis and H. R. Willis, and prevent him from entering into possession of the to the extent of and according to their respective said freehold and leasehold hereditaments, and from interests in the said hereditaments and premises, cutting and selling the timber and other trees and plan- present or future, will carry out this agreement. 3rd. tations, and underwood thereon, and from taking down That nothing herein contained shall be construed as
giving the said John Cochrane any right, title, and dants are bound to make good to the plaintiff the interest, besides what he had or could have exercised value of the said timber, and other trees, plantaon the said 15th day of August, or since. 4th. That tions and underwood, fixtures and quasi-fixtures, the said John Cochrane shall not fell, cut down, root articles and things, and that the defendants may be up, or move or carry away any timber, fixtures or decreed to pay to the plaintiff such value accordingly," quasi-fixtures, in or about the said hereditaments, and for an injunction. before the 1st of December next. As witness, the The bill was demurred to by the defendants for want hands of the said parties.
of equity, and the demurrer was allowed by the (Signed) “DANIEL WILLIS, Master of the Rolls on the 11th of December, 1863. “ H. R. WILLIS, Baggallay, Q.C., and G. L. Russell, for the plaintiffl
. “ GRAHAM and LYDE."
The agreement is good, and is binding on all parties.
The plaintiff has a specific claim against the timber. Joseph Willis died at Calcutta on the 24th of He was induced by the representations of the defenSeptember, 1863, a few weeks before the execution dants to delay the assertion of his rights. The conof the agreement; but that fact was not known to duct pursued by the defendants has resulted in this, Messrs. Graham and Lyde until the 5th of November, that the plaintiff has sustained a loss and the defen1863. Upon receiving information of the decease of dants have obtained a benefit, and with that end in Joseph Willis, the defendants barred the entail.
view the defendants purposely omitted fulfilling their Under these circumstances, the bill charged con. promises, on the faith of which the plaintiff waived cerning the agreement that “the defendants now the immediate assertion of his legal rights. This wholly deny the validity thereof, or that the plaintiff therefore shows a clear case for the intervention of a has any right or title to relief at law or in equity Court of Equity. against the defendants in the premises, and they On the point of acquiescence and standing by, they threaten and intend to cut down, remove, and sell, cited, or otherwise dispose of some of the said timber and Head v. Godlee, John. 536 ; other trees, plantations and underwood, fixtures and Horne v. Barton, 8 De G. M. & G. 587, 601. quasi-fixtures, articles and things, and apply the proceeds to their own use, and have already cut down
Selwyn, Q.C., Hobhouse, Q.C., and Lawrance, for some of the said timber and other trees, plantations the defendants. and underwood, and have sold, or contracted to sell, The present is a question of jurisdiction. It is as much other parts thereof;" and, further, “that the said agree for the interest of the plaintiff as of the defendants ment of the 30th of October last, was and is a good and that this question shonld be decided on demurrer. valid agreement, and that it ought to be declared by
Joseph Willis died at Calcutta previously to the the decree of this honourable Court that, under the cir. execution of the agreement. Mr. Cochrane must have cumstances aforesaid, the said timber and other trees, known that fact previously to the execution of the plantations and underwood, and the said fixtures, and agreement by his attorney in England, and as the life quasi-fixtures, articles and things, are to be in equity of Joseph Willis was the essence of the agreement, the considered as if the same had been respectively felled, failure of the life previously to the execution renders removed and carried away by the plaintiff on the 15th the agreement worthless. day of August last; and that the defendants are trustees
G. L. Russell, in reply. for the plaintiff, of the said timber and other trees, underwood, fixtures, quasi-fixtures, articles and things, Knight Bruce, L.J., said that, assuming the truth or that otherwise the defendants, are bound to make of the facts alleged in the bill, and that they were good to the plaintiff, as such assignee as aforesaid, the well pleaded, he could not take upon himself to declare value thereof, and ought to be decreed to pay and that the plaintiff had no equity. Indeed, the question make good the same accordingly.” And the plain. appeared to be one of difficulty. He should at the tiff prayed, 1st. “That it may be declared by the present stage decline to say more, but that fact in decree of this honourable Court that, under the itself was a sufficient reason for overruling the decircumstances aforesaid, the said timber and other murrer. At p. 423 of Mr. Morgan's treatise on the trees, plantations and underwood, and the said fix. “Chancery Acts and Orders” (3rd ed.), he found it tures and quasi-fixtures, articles and things, are to stated that “where there is a doubtful question on a be in equity considered as if the same had been legal title, the Court will not decide the question felled, removed, and carried away by the plaintiff on demurrer, notwithstanding the inclination of the on the said 15th day of August last.” 2nd. “That Court be in favour of the defendant, but will overit may also be declared that the defendants are rule the demurrer without prejudice to the defendant's trustees for the plaintiff of the said timber and insisting on the same matters by way of answer. other trees, plantations and underwood, fixtures His Lordship thought that that principle was equally and quasi-fixtures, articles and things.” 3rd. “Or and as strongly applicable to a case where there was otherwise, that it may be declared that the defen- a doubtful question on an “equitable title," as where
the doubtful question was on a “legal title.” He By an agreement dated the 21st of February, 1848, considered therefore that the demurrer must be over and made between Harmer of the one part and Young raled without prejudice to any defence that the de- of the other part, it was agreed that the “ Sun fendants might make by way of answer. Costs to newspaper should thenceforth be carried on by be costs in the cause. Deposit returned.
Harmer, and that for that purpose he should be
entitled to occupy certain premises adjoining No. 112, TURNER, L.J., concurred in thinking that there was
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.
of 5201. payable weekly, and should continue so for Note.-See
one year at least from that date ; but that Young was The Great Western Railway Company v. The not to have any control over, or in any manner Metropolilan Railway Company, 2 N. R. 209. 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 Master of the Rolls.
whatsoever. 9, 10 Dec. 1863. CHAPLIN v. YOUNG.
The inspectorship deed was dated the 31st of July, 11 Jan. 1864.
-1848, and made between the first mortgagees of the
first part, Harmer of the second part, Young of the Creditors' — —
Deed - Liability of Inspectors — third part, James Low and Joseph Clayton, the in-
spectors, of the fourth part, and such of Young's
creditors as should execute of the fifth part. It recited If under an inspectorship deed, the inspectors are inter alia) the agreement of the 21st of February, themselves to carry on the debtor's business, they will be 1848, and that the “Sun” newspaper had since been liable for all receipts and payments in respect of the carried on by Harmer on the footing of that agreement, business; but if the deed provides that the debtor is to and that there was then due to him 6,3971. 6s. for prin. carry on the business under their control and pay his cipal and interest, and 1,0901. 68. 4d. as the balance of receipts to them, and does not give them power to remove his receipts and payments in respect of the newspaper him, then, in the absence of culpable negligence, they will since the 21st of February, and that the amount due only be liable to account for the application of the sums
to the first mortgagees was 1,9761. 8s. 5d. It further actually received by them.
recited that at a meeting of Young's creditors it had A creditors' deed provided that, after certain mortgages been satisfactorily made to appear to them by Young, had been paid, the debtor should carry on his business that by reason of unforeseen losses and obstacles in under the control of inspectors, and it gave one of the trade, he was unable to pay the demands upon him, mortgagees the option of either continuing in possession but that the net profits of the business, after paying until the mortgages were paid, or "allowing the in, rents, taxes, salaries, wages, and outgoings, including spectors to manage the business on behalf of him and Young's salary of 101. a week, were upwards of 20001. them":
a year, and that the first mortgagees and Harmer were Held, that the inspectors, while they were allowed willing, after receiving 1,4001, a year between them, by the mortgagee to manage, were only responsible to to allow the residue of whatever profit might be made the same extent as they would have been after the mort- to be divided among Young's other creditors. The gages had been paid.
deed next recited that it had been mutually agreed The question to be decided in this case was, to what between the several parties thereto, that until the whole extent inspectors under an inspectorship deed were of the said sums of 1,9761. 8s. 5d., and 6,3971. 6s., with liable for the receipts and payments of the debtor interest and costs, should have been repaid to the first carrying on his business under inspection.
mortgagees and Harmer, the newspaper should con. In 1848, Murdo Young was the owner of the tinue to be carried on by Harmer, his executors, &c., copyright and goodwill of the “Suu” newspaper, and with the same conditions as to the printing, publishof the printing machinery and stock-in-trade of the ing, and editing thereof by Young, and as to the newspaper, subject, as to one-fourth, to a mortgage for salary to be paid to him as such printer, publisher, 20001. and interest to the three trustees of an assur. and editor as were named in the agreement of the ance society, hereinafter referred to as "the first mort. 21st of February; and that the moneys to be received gagees,” and as to the entirety to a mortgage for by him or them should be applied in the manner 6,8001, and interest to James Harmer. Young was thereinafter mentioned ; and that after full payment also the owner of the leasehold premises No. 112, to the first mortgagees and Harmer respectively of Strand, which were used partly as a dwelling-house and the said sums of 1,9761. 8s. 5d. and 6,3961. 6s., and partly as the offices of the newspaper, subject to the interest and costs, and until the whole of the several mortgage for 6,8001. and interest to Harmer. Harmer sums of money owing to the parties thereto of the fifth was mortgagee in possession of the whole of the part should have been repaid, together with all costs, property.
&c., properly incurred, Young should be permitted to