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