Abbildungen der Seite
PDF
EPUB

PRINCIPAL AND AGENT--continued.

Clark, 1 B. & C., 186, applied. The terms of
the document of agency being such as to
justify the inference that, however limited
the authority of the agents in respect of mak-
ing contracts, they had at least authority to
inform persons dealing with their principals
through them whether a proposal had been
accepted or not, a statement by the agents
that the contract was being performed by
their principals was admissible as evidence
that the proposal of the respondents had been
accepted, and that the principals had ratified
the action of their agents. Held, also, that
documents relating to prior transactions be-
tween the principals and third persons through
the agents, and tending to show that the prin-
cipals knew that the agents were holding
themselves out as having authority to make
contracts similar to that sued upon, were not
rendered inadmissible by the mere fact that
what was actually done by the principals in

furtherance of these transactions was done
after the date of the contract sued upon. The
Supreme Court in making absolute à rule nisi
for a new trial, made no order as to costs, the
result being that by the Rules of the Supreme
Court each party must bear his own costs of
the first trial. The ground of the Court's
refusal to make any order did not distinctly
appear, though in a similar case it had refused
on the ground that it had no jurisdiction to
make an order as to costs in such a case.
Held, that, under the circumstances, the
Supreme Court must be taken to have exer-
cised its discretion as regards costs, and that
discretion should not be reviewed. Decision
of the Supreme Court: Spicer v. International
Paper Co., (1906) 6 S.R. (N.S.W.), 170,
affirmed. International Paper Co. v. Spicer
739

antee

-

PRINCIPAL AND SURETY - Continuing guar-
Default of principal debtor to pay
portion of debt on demand - Liability of
surety Interest - Statute of Limitations -
Notice to surety.]-By the terms of a continu-
ing guarantee of a customer's overdraft with a
bank, the guarantors undertook to pay all
advances and debts owing or to become owing
by the customer to the bank "to the extent
of £12,500 and interest on the same respec-
tively in case the customer should make
default in payment thereof respectively or of
any part thereof respectively." On two occa-
sions the bank made demands upon the cus-
tomer, one for payment of a portion of the
overdraft and the other for interest upon the
overdraft, and the customer failed to pay.
Held, that the result of the default by the
customer to pay a portion of the principal
debt on demand was that a cause of action
arose against the guarantors, not for the
whole amount of the guarantee, but for the
amount as to which the customer had made

PRINCIPAL AND SURETY―continued.

default, and therefore that the Statute of
Limitations began to run against the bank as
to that portion of the indebtedness only, and
the guarantee continued as security to the
bank for the balance. Held, also, that, as
against the sureties, the Statute ran as regards
interest as well as principal of the sums
demanded. The principles which regulate
the right of a surety to notice of default dis-
cussed. Decision of Walker J., In re The
Colonial Finance, Mortgage, Investment and
Guarantee Corporation Limited, (1906) 6 S.R.
(N.S.W.), 6, varied. Commercial Bank of
Australia Ltd. v. Colonial Finance Investment
& Guarantee Corporation Ltd.
- 57

PRIOR PUBLICATION-Combination-Infringe-
ment.]-See PATENT. Peacock v. D. M.
Osborne & Co.

921

PRIVY COUNCIL, APPEAL FROM HIGH COURT

TO-Special leave-No question of law-Case
of great importance to parties-No question
of public importance.] There being in a
judgment of the High Court no question of
law upon which that judgment could be
objected to, the fact that the case is one of a
substantial character and of great importance
to the parties is not a sufficient ground for
granting special leave to appeal to the Privy
Council. Petition for special leave to appeal
from the judgment of the High Court in N.
Guthridge Limited v. Wilfley Ore Concen-
trator Syndicate Limited, 3 C.L.R., 583,
dismissed. Wilfley Ore Concentrator Syndicate
Ltd. v. N. Guthridge Ltd.

202

PRIVY COUNCIL, APPEAL FROM SUPREME
COURT TO Power of Commonwealth Parlia-
ment to take away right of appeal—Judiciary
Act 1903 (No. 6 of 1903), secs. 30, 38, 39.]—
See LEGISLATIVE POWERS. Webb v. Outtrim

356

PRIVY COUNCIL, APPEAL TO, FROM JUDGMENT
OF HIGH COURT-Stay of proceedings.] - See
PRACTICE. Bayne v. Blake
944

PROBATE

[ocr errors]

-

[ocr errors]
[ocr errors]

Administration bond —Sureties
Deed of indemnity by beneficiaries-Conceal-
ment from Court-Public policy-Solicitor and
client Confidential relation Benefit con-
ferred by client on solicitor-Duty of solicitor
-Independent advice- Administration and
Probate Act 1890 (Vict.) (No. 1060), secs. 15-
17.]-In an action against sureties on an ad-
ministration bond which has been assigned
under sec. 17 of the Administration and Pro-
bate Act 1890 (Vict.), any defence which
would be open to the administrator in an
action for administration in which breaches of
trust or devastavits are charged, is open to
the sureties, and any facts which would estab-
lish that, as between the beneficiaries and the
sureties, the former are not entitled to claim

PROBATE-continued.

In

indemnity from the latter, may be set up as a
defence. Where, as a condition to becoming
sureties to an administration bond, the
sureties, prior to the execution of the bond,
demand and obtain from the beneficiaries an
indemnity against any liability under the
bond, such indemnity is not ipso facto illegal.
Per Griffith C.J. and Barton J.-If the circum-
stances are such that, if the indemnity were
disclosed to the Court the grant of adminis-
tration might be refused, and that a stipula-
tion that the indemnity should be concealed
from the Court ought to be inferred, such a
stipulation will vitiate the indemnity.
order to establish the fiduciary relationship of
solicitor and client which is necessary to exist
in order that the principles governing the
validity of benefits conferred by a client on
his solicitor shall apply, it is not necessary
that the formal relation of debtor and creditor
should exist, but it is sufficient that, in the
particular matter in question, the client should
have relied upon the advice of the solicitor
and that the solicitor should have known that
the client so relied upon his advice. Two
members of a firm of solicitors became sureties
to an administration bond, receiving as con-
sideration £75, and, before executing the
bond, they required the administratrix and
her two sisters, who were the only other
beneficiaries, to execute a deed of indemnity
against any liability under the bond, and
charging all their interests in the estate as
security. The sisters had no independent
advice. In an action on the bond by the two
sisters of the administratrix to whom it had
been assigned: Held, that in the absence of
independent advice the sureties could not
rely on the deed of indemnity, because, on the
facts, the relationship of solicitor and client
existed between the sureties and the three sis-
ters. Held, also, by Griffith C.J. and Barton
J., that the deed was invalid on the further
ground that, even if that relationship did not
exist between them, (1) it existed between the
sureties and the administratrix through whom
the bargain, which could not be supported as
against her, was made with her two sisters;
and (2) the bargain was one made between
solicitors and the cestuis que trustent of their
client without independent advice for a charge
on the trust estate. Held, further, that the
administration bond and the deed of indemnity
were independent contracts, and that the im-
possibility of discharging the defendants from
the bond was no answer to a claim to set aside
the deed. Judgment of Supreme Court (Hol.
royd J.) pursuant to answer to question
referred by him to the Full Court (Bayne v.
Blake, (1906) V.L.R., 112; 27 A.L.T., 143) |
reversed. Bayne v. Blake

PROCEEDINGS, STAY OF Appeal to Privy
Council from judgment of High Court.]-See
PRACTICE. Bayne v. Blake

944

PROHIBITED DEGREES Nullity Laws of
England introduced into Colony on settlement
-28 Henry VIII. c. 7, sec. 11.]-See HUSBAND
AND WIFE. Miller v. Major

-

219

PROHIBITED IMMIGRANT.] See IMMIGRANT,
PROHIBITED.

PROHIBITION, IMPLIED Interference with
legislative or executive power of Common-
wealth.]-See LEGISLATIVE POWERS. Webb
v. Outtrim
356

PROHIBITION, STATUTORY-Appeal — Amend-
ment—Judiciary Act 1903 (No. 6 of 1903), sec.
37.] See IMMIGRANT, PROHIBITED. Alex.
ander v. Donohoe

781

"PROLONGED EXAMINATION OF DOCUMENTS
OR ACCOUNTS," MEANING OF Rules of
Supreme Court (Viet.) 1884, Order XXXVI.,
rr. 3, 4, 5, 6, 7.]-See PRACTICE. Hay v. Dal-
gety & Co. Ltd.

913

PROOF OF DEBT-Winding-up-Hiring Agree-
ment Acceleration of rent on breach
Liquidated damages or penalty.]-See COM-
PANY. Lamson Store Service Co. Ltd. v.
Russell Wilkins & Sons Ltd.

----

672

PROSECUTION-Compromise of prosecution by
deed-Public policy- Defamation - Uncer-
tainty of duration of payment-Interpreta-
tion.]-S. and K. who had been cohabiting
together agreed by deed to live apart for the
future. By the first paragraph of the deed K.
agreed to pay S. a certain sum per month, no
period being mentioned for the continuance of
the payments. By the second paragraph of
the deed S. agreed, in consideration of the
monthly payment, to withdraw proceedings
pending against K. upon a complaint which on
the same day she had laid against him for un-
lawfully publishing oral defamatory matter
about her. Held: That such agreement was
not void for uncertainty, as it must be con-
strued as meaning that K. would pay S. the
specified monthly sum during their joint
lives. Held, further: That as the offence
the subject-matter of the prosecution was not
of a public nature, but was one for which the
injured person could sue and recover damages,
the general rule of law that an agreement to
stifle a prosecution is contrary to public policy
and void did not apply. Decision of the
Supreme Court: Simmonds v. Kerridge, 8
W.A.L.R., 132, affirmed. Kerridge v. Sim-
monds

253

PUBLIC POLICY-Compromise-Defamation.]—
See PROSECUTION. Kerridge v. Simmonds 253
PUBLIC SERVANT-Wrongful dismissal-Eu-
forced resignation - Charge - Vagueness
Inquiry by Board — Unfairness Action by
Governor in Council-Neglect of duty - Mal-
administration-Public Service Act 1896 (Qd.)

PUBLIC SERVANT-continued.

(60 Viet. No. 15), sees. 40, 41, 42.] - The
Public Service Act 1896 (Queensland), secs. 40-
42, provides that an officer in the Government
service shall only be dismissed in the manner
provided by the Act, which is as follows:-
The Minister or permanent head of his depart-
ment may suspend him; the Public Service
Board then hold, either by themselves or some
person appointed by them for the purpose, an
inquiry into the charge made against him, and
report to the Governor in Council, who may
take such action as is prescribed by the Act.
The plaintiff sued the Government for wrong-
ful dismissal, alleging that no proper inquiry
had been held, because the charges made
against him were not sufficiently specific;
that detailed particulars of the charges were
refused until some time after the opening of
the inquiry; that he was refused access to
witnesses and documents until after the in-
quiry began, and was otherwise harassed in
the conduct of his defence; and that the
Home Secretary, his departmental head by
whom he had been suspended, sat as a member
of the Public Service Board to consider the evi-
dence taken by the person appointed to hold
the inquiry, thus sitting as a judge in his own
cause. Plaintiff recovered a verdict from the
Government, which was set aside by the Full
Court. Held In making a formal charge
against an officer, for the purposes of an
inquiry, it is not necessary at the outset to use
more particularity than is prescribed by the
Act. It is sufficient for the validity of the
inquiry under the Act if the officer charged is
made acquainted with the particulars of the
charge in time to afford him a fair opportunity
of meeting it. Principles laid down in Osgood
▼. Nelson, L. R. 5 H.L., 636, and in Leeson v.
General Council of Medical Education and
Registration, 43 Ch. D., 366, applied. Sec. 42
of the Public Service Act 1896 provides that
an inquiry shall not be made by the person by
whom the officer was suspended, or by whom
the charge was made. Held, that such pro-

vision does not render the Minister who has
suspended the officer incapable afterwards of
acting as a member of the Board to consider
the evidence taken upon the charge. Judg.
ment of the Supreme Court, Stockwell v.
Ryder, (1906) St. R. Qd., 274, affirmed.
Stockwell v. Ryder ·

469

PUBLIC SERVICE-continued.

The

office can be offered him, he shall be entitled
to retire upon the superannuation allowance
provided for by other sections of the Act.
Sec. 8 of the Public Service Act 1895 provides
that the Public Service Board shall investi-
gate the working of each department of the
Public Service, and if it finds a greater
number of persons employed than necessary,
and if the persons in excess cannot be profit.
ably employed in any other department, their
services shall be dispensed with subject to
certain provisions in other sections for a
refund of their contributions to the super-
annuation account, and a gratuity.
appellant for some years up to June 1896 held
an office which was officially known as that of
Accountant in Bankruptcy, and was formally
notified in the Gazette as ranking next after
that of Registrar in Bankruptcy, and as such
officer he performed certain specified duties
attached to the office. The Public Service
Board investigated the working of the Bank-
ruptcy department, regraded the officers, and
reported to that effect to the Minister, attach-
ing to their report a schedule of the officers,
amongst which the appellant's name did not
appear. Subsequently the appellant was
notified by letter that his retirement had been
recommended by the Board and approved of
by the Governor, and a Gazette notice to that
effect was shortly afterwards published.
Thereafter no officer held the title of Account-
ant in Bankruptcy or the status formerly
enjoyed by the person holding that office, and
the duties formerly attached to the office were
distributed amongst other officers of the de-
partment. Held, that it was a question of
fact whether the services of the appellant
were dispensed with owing to the abolition of
his office within the meaning of sec. 46 of the
Act of 1884, or under the provisions of sec. 8
of the Act of 1895, and that on the evidence
the proper inference to be drawn from the
facts was that his services had been dispensed
with under the former section; and, as the
rights given by the Civil Service Act 1884 to
contributors to the superannuation account,
of which the appellant was one, had not been
taken away by subsequent legislation, the
appellant was entitled to the arrears of the
pension provided by that Act. Held, also,
that the acceptance by the appellant, shortly
after his retirement, of a gratuity under the
Public Service Act 1905 and, later, of a pension
under the Public Service (Superannuation) Act
1899, was not, under the circumstances, such
an acquiescence as would operate as a bar to
the subsequent assertion of his claim to be
dealt with under the Civil Service Act 1884.
Decision of the Supreme Court: Greville v.
Williams, (1905) 5 S. R. (N.S. W.),
reversed. Greville v. Williams

PUBLIC SERVICE-Civil Service Act (N.S.W.),
(48 Viet. No. 24), secs. 46. 48-Public Service
Act (N.S.W.), (No. 25 of 1895), sers. 8, 59, 60—
Public Service (Superannuation) Act (N.S.W.),
(No. 55 of 1899), sec. 2-Services of officer
dispensed with-Abolition of office-Question
of fact-Estopped by acquiescence.]—Sec. 46
of the Civil Service Act 1884 provides that
when the services of an officer of the Civil
Service are dispensed with "in consequence
of the abolition of his office," and no other' QUARTER SESSIONS-Appeal to, from an order

600,

694

[blocks in formation]

-

RECEIVING STOLEN PROPERTY - Goods the
Evidence
property of person unknown
Recent possession-False statement by person
in possession.]-See CRIMINAL LAW. Trainer
v. The King
126
RECTIFICATION OF SHARE REGISTER-Sub-
mission by plaintiff to indemnify company-
Intention of parties and Court when making
decree-Principal and surety-Suit by Com-
pany to enforce lien-Counterclaim-Costs.]
-See COMPANY. McLaughlin v. Daily Tele-
graph Newspaper Co. Ltd.
548

REGISTRAR, APPEAL FROM-Jurisdiction of
President of Commonwealth Court of Concilia-
tion and Arbitration - Stating case.]-See
STATE INSTRUMENTALITY, INTERFERENCE WITH.
Federated Amalgamated Government Railway
&c. Association v. New South Wales Traffic
Employés Association
488
REGISTRATION, APPLICATION FOR Trade
mark registered under Trade Marks Act of a
State.] See TRADE MARK. Salvitis Pro-
prietary Ltd. v. Registrar of Trade Marks 941

--

[ocr errors]
[blocks in formation]

REGULATION--continued.

nuisances therein, the improvement and
management of the port, and, generally, for
carrying out the powers vested in them by the
Act. Sec. 32 imposes upon the Commissioners
the duty of dredging the port and keeping it
fit for navigation, and preventing any filling
or silting up of the channels and waterways.
Sec. 86 makes it an offence for any person to
put rubbish, ashes and such things into the
waters of the port. Held, that a regulation
which provided that, "should any ashes or
other material be allowed to fall into the
waters of the port from any lighter licensed
under these regulations," the owner should be
liable to a penalty, ought not to be construed
as rendering an owner liable if under any cir-
cumstances whatever ashes or other materials
should fall from his lighter into the water,
but only if the material should be allowed to
fall off the lighter by reason of the permission
or default of the owner himself, or, if he had
not the actual control of the lighter at the
time, the permission or default of any person
to whom he had delegated the control, default
including the absence of such reasonable care
as could or ought to be used for the prevention
of such accidents, and that the making of such
a regulation was a reasonable exercise of the
powers conferred upon the Commissioners by
the Act, and was not repugnant to the pro-
visions of sec. 86. Decision of Pring J.,
Ferrier v. Wilson, 23 N.S. W. W.N., 115,
reversed. Ferrier v. Wilson
785

[blocks in formation]

REMEDY FOR INJURY, ELECTION OF-Workers'
Compensation Act (W.A.), (1902, No. 5), sec. 9
-Duty to assess compensation under Act on
failure of action not under Act-Time when
assessment may be demanded—Amendment
of judgment.]-See MASTER AND SERVANT.
Ivanhoe Gold Corporation Ltd. v. Symonds 642

RENT — Acceleration of, on breach of hiring
agreement-Liquidated damages or penalty.]
-See COMPANY. Lamson Store Service Co.
Ltd. v. Russell Wilkins & Sons Ltd.
672
RESIGNATION, ENFORCED.]-See PUBLIC SER-
VANT. Stockwell v. Ryder
469

[ocr errors]
[blocks in formation]
[blocks in formation]

739

SECURITY, TIME FOR LODGING-Extension-
Lapsed appeal-Special leave-Appeal Rules,
sec. IV., r. 10.]-See PRACTICE. Miller v.
Major

219
SERVANTS, LIABILITY FOR TORTIOUS ACTS OF
-Independent officer-Collector of Customs
Ministerial duty Nominal and small
damages.] See ACTION AGAINST COMMON-
WEALTH. Baume v. The Commonwealth 97

[ocr errors]
[blocks in formation]
[blocks in formation]

SPECIFIC PERFORMANCE-Agreement for lease
-Illegality-Intention of parties.]-See CON-
TRACT. Langley v. Foster
167
STAIRCASE, DANGEROUS CONDITION OF-Lia-
bility of lessee-Effect of covenant by lessor
to keep in repair-Invitation to customers to
use staircase-Insufficient lighting-Evidence
-Admissibility.]-See NEGLIGENCE. Gorman
v. Wills -

-

[ocr errors]

-

764

205

STAMP DUTY-Deed executing special power of
appointment -Stamps Act 1892 (Vict.) (No.
1274), secs. 4, 28, Schedule, Part VIII.]-See
DEED OF SETTLEMENT. Davidson v. Army-
tage
STATE INSTRUMENTALITY, INTERFERENCE
WITH-The Constitution (63 & 64 Vict. c. 12),
secs. 51, 98, 101, 102, 104-Validity of Com-
monwealth legislation Limited power
Validity of Act going beyond power-State
railways-Regulation of wages and conditions
of employment-Jurisdiction of President of
Commonwealth Court of Conciliation and
Arbitration-Appeal from registrar--Stating
case-Commonwealth Conciliation and Arbi-
tration Act 1904 (No. 13 of 1904), secs. 2, 4, 6,
17, 18, 19, 23, 24, 28-31, 40, 48.]-The rule,
laid down in D'Emden v. Pedder, 1 C.L.R.,
91, at p. 111, viz., that when a State attempts
to give to its legislative or executive authority
an operation, which, if valid, would fetter,
control, or interfere with the free exercise

of the legislative or executive power of
Commonwealth, the attempt, unless expressly
authorized by the Constitution, is to that
extent invalid and inoperative, is reciprocal
It is equally true of attempted interference
by the Commonwealth with State instru-
mentalities. The application of the rule is
not limited to taxation. Sec. 51 (xxxv.) of
the Constitution does not either expressly or
by necessary implication authorize such an
attempt. A State railway is a State instru-
mentality within that rule. The legislative
authority of the Commonwealth Parliament
under the powers contained in secs. 51 (1.) and
98 of the Constitution, so far as regards wages
and terms of engagement, does not extend
further than to prohibit, for causes affecting
interstate traffic, specific persons from being
employed in such traffic. Quare, whether
that authority extends so far. When in the
attempted exercise of a power of limited
extent an Act is passed which in its terms
extends beyond the prescribed limits, the

« ZurückWeiter »