an administration suit against the Curator, |
praying that all A. 's estate in his hands should
be paid over to her. Held, reversing the deci-
sion of the Primary Judge, that the shares to
which the plaintiff claimed to be entitled as the
personal representative of B. and C., could not
be paid over to her until she had taken out
letters of administration in this colony, with
exemplification of the will annexed to the
estate of B., and letters of administration to the
estate of C. Held, also, that the power given
by the Court to order the payment of sums
under 50%. to persons claiming to be entitled
thereto, without legal proof of their right of
title, by 11 Vic. No. 14, sec. 12, has not been
extended to sums over 50%. by Vic. No. 8, sec. 4.
Fernandez Executors' Case (L. R. 5 Ch. App.
314); and Re Vallance (L.R. 24 Ch. D. 177),
followed. ARNOTT v. CHAPMAN
FRAUDS-See TRADE MARKS, 1.
FRAUDULENT SETTLEMENT-See INSOLVENT.
wrote a consent thereto. Rent for the land was
paid by N.'s firm in cheques, which were paid
by N. into his own private bank account. At
various times, also, sums of money amounting
to over 800l. were expended on buildings on the
land by N. In 1883 N. became insolvent :—
Held, that the contract of 1879 gave the defen-
dant D. an equitable estate in fee, subject to
the marital rights of her husband; that the
transfer of April, 1881, did not operate for D.'s
sole and separate use, but that it operated as
a new settlement, in giving her a power of
appointment, whereby she could extinguish her
husband's previous right to her estate in fee.
Held, also, that both the contract of 1879 and
the transfer of 1881 were void against N.'s sub-
sequent creditors, as voluntary settlements made
by N. in contemplation of trade; and also as
fraudulent within the meaning of the Statute 13
Eliz., c. 5. LLOYD v. BLUMENTHAL
99
LANDS REGULATIONS-See CROWN LANDS.
LIEN ON WOOL-See SURETY.
IMPLIED REPEAL OF ACT-See DEDICATION LUNATIC-Committee carrying on business with-
OF ROAD.
INFANT--Suit on behalf of-Reference-Discre-
tion-Appeal.] The Full Court will not inter-
fere with the discretion of the Primary Judge
as to directing an enquiry whether a suit is for
the benefit of infant plaintiffs; and whether the
person suing as their next friend is a proper
person for such position; even where the facts
upon which the Primary Judge acted are not
before it, and where some of the plaintiffs in the
suit have attained their majority. Pensotti v.
Pensotti (22 W. R. 461) followed. M'LAUGHLIN
v. MOORE
Family Deed.-See FAMILY DEED.
INSOLVENT-Purchase for wife-Transfer to
wife giving her power of appointment-Voluntary
settlement-Fraudulent settlement-Stat. 13 Eliz.
c. 5.] The defendant N., and D. his wife,
were married in 1876, shortly after which time
D., who alleged that she was possessed of 90%.,
551. of which were in the hands of her brothers,
placed in N.'s hands the sum of 301., to invest
for her benefit. In 1879, N., who carried on
business as a storekeeper at F., assigned his
estate, but arranged with his trustees to retain
his assets in his own hands, contingently on his
paying his debts in full by his own promissory
notes. Next month he bought, in his wife's
name simply, but without her knowledge, an
allotment of land at C., paying a deposit of 201.
upon it. In December, 1879, N. failed in paying
an instalment of his debt to his trustees, when
his wife's brothers paid to them 510. in full
discharge; and, in the same month, paid 457. to
complete the purchase of the land before-men-
tioned; but the completion was delayed till
1881. In 1880 the defendant N. removed to C.,
having spent 100%. of his own money on buildings
suitable for his trade on the land in question,
and started business there. In April, 1881, a
certificate of title to this land was issued to the
defendant D., in its terms giving her a power of
appointment over the land apart from her hus-
band. Upon the memorandum of transfer N.
out authority-Creditors-42 Vic. No. 7, s. 151.]
Where the committee of a lunatic had incurred
debts to a large amount by carrying on the
business of a lunatic without authority, and the
lunatic, his wife and family, had been main-
tained out of the proceeds of the business; the
Court, on petition by several of the creditors,
refused to order an inquiry to be made into the
amount of the property of the lunatic in the
hands of the committee, that it might be sold
for the benefit of the creditors under 42 Vic.
No. 7, s. 151. Re DANIEL ROBINSON
77
appeal. The reasons of the Court, which are to
be submitted to the Privy Council, are those of
the Court appealed from-the Full Court-not
those of the Primary Judge. BUCKNELL v.
VICKERY
81
the board of directors of the bank, should render
it necessary for the safety or security of the
bank to sell, with such credit to the purchaser
and in such manner as to the bank should seem
reasonable. On the same day A.N.T. also
PROBATE-Evidence of.-See FOREIGN PRO- signed a paper giving to the bank a preferable
lien to the extent of 25007., and of all other sums
of money which he might obtain from the bank
on the wool of the ensuing clip to be shorn from
REASONS OF PRIMARY JUDGE-See PRIVY the said 6500 sheep. On 25th January, 1879,
COUNCIL APPEAL.
RULES OF 29th JUNE, 1883-
SHORT MATTERS-See PRACTICE, 2.
SPECIAL DAMAGE-See DEDICATION OF ROAD.
STATUTES-
13 Eliz. c. 5.-See INSOLVENT
-See VOLUNTARY ALIENATION.
27 Eliz. c. 4.-See VOLUNTARY ALIENATION.
11 Vic. No. 24, s. 12.-See FOREIGN PROBATE
15 Vic. No. 8, s. 4.-See FOREIGN PROBATE
AND ADMINISTRATION.
22 Vic. No. 18, ss. 78, 79.-See VOLUNTARY
25 Vic. No. 1, s. 18.-See CROWN LANDS.
28 Vic. No. 9.-See TRADE MARKS.
Newcastle (Paving and Public Vehicles)
of 1876.-See DEDICATION OF ROAD.
42 Vic. No. 7, s. 151.-See LUNATIC.
43 Vic. No. 33.-See CROWN LANDS.
Private Act of 1881.-See DEDICATION OF
ROAD.
A.N.T., having represented to the bank that his
run was overstocked, with the bank's concur-
rence sold certain of the mortgaged sheep to one
H.R.S. for 810., on his promissory note, which
was never paid. A.N.T. also sent to the bank
the clip of wool mentioned in the preferable lien;
the bank sold it, and credited the proceeds
to his account. The bank, having realised on
the securities already mentioned, and on other
securities, sued the plaintiff H.E.T. at law on
his bond for a balance still remaining unpaid by
A.N.T., and obtained a verdict against him,
the ground that 810/. which was not credited by
which it was afterwards sought to set aside on
had failed to pay his promissory note.
the bank ought to have been, although H. R.S.
A new
trial having been refused, on the ground that
the bank was authorised to sell on credit,
the plaintiffs commenced the present action,
praying for an injunction against the bank
and for an account.
Act claim for an amount larger than the verdict ob-
The bank set up a counter
tained at law, on the ground that since the
action at law they had discovered, on more
accurately making up their accounts, that a
much larger sum was due to them by A.N.T.
than they were aware of at that time. Held,
by Manning P.J., that the plaintiffs' ignorance
of A.N.T.'s prior debt to the bank did not
exonerate them, but that as the plaintiffs were
not consulted in the sale of the 2500 sheep to
H.R.S. they were completely freed from lia-
bility in respect of the bond; the transaction
being such as to injure the security held by the
bank, to which the plaintiffs as sureties would,
on payment of the bond, be entitled. Held,
that the preferable lien was a special security
to the plaintiffs, and that the proceeds of the
wool of 1878 sold under it should be set against
the liability of the plaintiffs. Held, that the
counter claim must be dismissed. But, held, by
the Full Court (Martin C.J., Faucett and
Windeyer JJ.), reversing the decision of the
Primary Judge, that the dealing of the bank
with the clip of wool under the lien was not
such as to exonerate the plaintiffs, as the lien
operated upon nothing which the mortgage did
not give the bank complete power to dispose of,
and as it would be unreasonable to expect the
bank to hold over, without selling it, the clip of
wool when received. Held, by Martin Č.J.
and Windeyer J. (Faucett, J. dissentiente),
that as the Court, in its Common Law juris-
diction, had decided that under the power of
sale contained in the mortgage the bank were
authorised to sell on credit, without making
themselves liable for any loss on such sale, with-
out fraud or gross negligence, neither of which
were shown here; and as the sale was a proper
one under the power, the sale of the 2500 sheep
44 Vic. No. 16, s. 40.-See FAMILY DEED.
SURETY-Mortgage-Preferable lien-Sale by
creditor-Exoneration.] A.N.T., a grazier, was
indebted to the defendant bank, and the plain-
tiffs, on 5th September, 1878, without inquiring
into the state of A. N. T.'s account with the bank,
joined him in a cash credit bond to secure the
repayment to the bank by him of 2500l. and one
year's interest, which bond was to be a con-
tinuing security to the bank for the said amount
and interest, exclusive of costs, notwithstanding
any settlement of account, or any other matter
or thing whatsoever. On the same day A.N.T.
mortgaged to the bank, as collateral security,
6500 sheep, and all other sheep and live stock
running on certain conditional purchases, the
property of the said A.N.T. and H. E. T., one of
plaintiffs, and all the increase, progeny, wool,
skins, tallow, and other produce of the same,
and all the sheep and live stock, property and
effects, then belonging to and usually running
on the said lands, or which might thereafter be
brought or placed upon the said lands, and all
the increase, progeny, &c., thereof. In the
mortgage deed it was provided that the
mortgagor should have possession and manage-
ment of the property until default or breach,
and also that the mortgagor should, at his own
expense, shear, pack, and deliver to the bank
all the wool produced by the sheep, the subject
of the security. There was a power of sale on
default or breach, or in case any circumstances
whatever should arise which, in the opinion of
to H.R.S. afforded no ground for releasing the |
sureties. Held, by Faucett, J., that the sale
of the 2500 sheep was sufficient to exonerate
the plaintiffs, who, as sureties, should have had
the power of saying whether such a sale should
take place or not. Also, that the sale was not a
proper one under the power in the mortgage, as
it was not alleged that there had been any de-
fault or breach by the mortgagor, or that the
board of directors were of opinion that it was
necessary for the safety or security of the bank
that the sale should take place. Held, by the
Court, affirming the decision of the Primary
Judge, that the bank, having obtained a verdict
against one of the plaintiffs on their own repre-
sentation of the account between them and
A.N.T., and not having been in any way misled
by such plaintiff, ought not to be permitted to
re-open the matter.
TAYLOR v. BANK OF NEW
SOUTH WALES
25
TRADE MARKS—Fraud.] The Trade Marks
Act of 1865 does not take away the ordinary
right of every person to protect himself against
fraud, by help of a Court of Equity. HEYDE V.
WITTKOWSKI
74
Unregistered mark.] The Trade
Marks Act (28 Vic. No. 9) recognises "marks"
as distinguished from "trade marks"; and also
recognises titles to such marks independently of
the Statute and of registration. The Act also
contemplates that the person applying for re-
gistration shall be entitled to the mark he
wishes to register in some way other than by
mere priority of application. Accordingly, a
person is not entitled to appropriate to himself,
by registration, an established commercial
mark, though not registered. The owner of
such an established, but unregistered mark
can claim the protection of the Court against
another person who has registered it, upon
general principles of equity. HARRIS v. OGG 114
UNREGISTERED MARK-See TRADE MARKS 2.
VOLUNTARY ALIENATION-Fraud-13 Eliz.
c. 5-27 Eliz. c. 4-District Courts Act, 22 Vic.
No. 18, secs. 78, 79.] On 30th September, 1864,
M., being indebted, conveyed all his real estate
to trustees, in trust to sell the same, and with
the proceeds to pay off the charges thereon, and
to apply the residue in payment of his debts,
and as to any surplus there might be, to pay the
same to such trustees as his wife might name,
for her benefit and that of her children. At the
time he executed the deed, M. was indebted to
C. and R., each of whom obtained judgment
against him in the District Court in March,
1865. On 1st April, 1865, the Registrar of the
District Court sold by auction all M.'s right,
title, and interest in certain of the lands con-
veyed in the deed of 1864, under R.'s judgment,
and the plaintiff became the purchaser; and the
Registrar subsequently conveyed the lands to
him, as required by sec. 79 of the District Courts
Act (22 Vic. No. 18.) Some time after this
R. for valuable consideration assigned his
judgment against M. to the plaintiff. The
plaintiff, as purchaser from the Registrar of
the District Court, claimed to have the deed
of 30th September, 1864, declared void, as being
voluntary under the Statute 27 Eliz. c. 4; and,
also, as having delayed or defeated a creditor or
creditors, and as fraudulent under the Statute
13 Eliz. c. 5; claiming, also, if the deed should
be set aside, to come in as purchaser of the land
at the sale by the Registrar of the District
Court, on 1st April, 1865. Held, affirming the
decision of the Acting Primary Judge, that the
deed was not a voluntary deed, and that if it
were a voluntary deed it was not void under the
Statute 27 Eliz. c. 4, as a voluntary deed can
only be set aside by a subsequent purchaser for
value from the settlor; and that the Statute
does not apply to the case of a sale in invitum.
Held, also, that the creditors of M. were not,
in violation of the terms of the Act 13 Eliz. c.
5, delayed or defeated by the deed of Septem-
ber, 1864; and that the trust to pay the surplus
to trustees for the benefit of M.'s wife and
children distinguished the case from that of a
mere voluntary trust deed executed for the
benefit of creditors. Held, also, that such a
deed was
not implied evidence of fraud.
Semble, that a mere trust for the payment of
debts becomes irrevocable after any one credi-
tor has given his assent to it. GODFREY V.
WIFE-Transfer to.-See INSOLVENT.
WILL-Codicil-Construction.] By will testa-
his trustees, as follows:-"In trust to sell and
tor devised the residue of his real property to
dispose of the same by public auction, and with
the proceeds thereof, in the first place to pay
off a mortgage
and to divide the
balance equally between my dear wife A., her
free from any husband, her sister J., and my
share to be invested in some real security, and
said three brothers and two sisters as joint
tenants, as my brothers and sisters are con-
cerned." By a codicil to the will the testator
devised certain freehold property to his wife,
and concluded the codicil as follows:-" At the
death of my said wife, all property real taken
under this or any former will to be devised by
her in any way she pleases, to all or any one or
more of my brothers or sisters as she may think
proper, or, on their death, to any of their
children." Held, that the will gave a seventh
share of the proceeds of the residue of the tes-
tator's real estate to each of the legatees; and
that the only effect of the testator's brothers
and sisters being given their shares as joint
tenants was to prevent the lapse of the share of
any brother or sister dying in the testator's
lifetime. Held, also, that the seventh share of
those proceeds left to the wife was not "pro-
perty real" within the meaning of the codicil.
Held, that the freehold property devised to the
wife by the codicil was property real" within
the meaning of the same, and therefore that the
wife took only a life interest in it; but that it
was not necessary for the Court to determine
who might be entitled to the property in the
event of the testator's wife not directing by her
will to which of the parties designated in the
codicil it should go. REDMAN v. ALLEN
DIVORCE, ECCLESIASTICAL, AND VICE-ADMIRALTY CASES.
leaving property, which came into the hands of the Curator of Intestate Estates. The next-ofkin of A., living at the time of his decease, were B., a sister; C., a brother; and the applicant, a sister. Before this application, B. and C. died, and the Full Court having refused to allow the payment by the Curator to the applicant of the shares of B. and C. without the applicant's taking out administration to their estates here, while finding that she was solely entitled to all the property of A., the Primary Judge granted administration to the estate of A. to the ap plicant, with security to a nominal amount only. In the Goods of E. C. ARNOT
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