Page.

BY-LAWS.-See CORPORATION.

CAVEATING CAPACITY.-See REAL PROPERTY ACT OF 1861, 3.
CERTIFICATE OF TITLE.-Estate during widowhood-Devisee. A
will devising all real and personal estate to wife during widowhood,
and on marriage to trustees for her separate use, does not entitle
the widow to be registered as proprietor in fee-simple on the death
of the testator.

IN THE MATTER OF THE APPLICATION OF MARY ANN
WINNALL AND THE REAL PROPERTY ACT, 1861. 73

CHEQUE.-Consideration Policy Action - Evidence. A written
agreement to pay to a person's executors a certain sum in the event
of such person dying within a certain time, is a good consideration
to support an action on a cheque given by such person in con-
sideration thereof, though no consideration appears on the face of
the agreement,

BOTTING V. FUTCHER. 1

CHOSE IN ACTION. Conflicting assignments Money had and
received-Priority. The receipt by an assignee of a right of action
of a debt assigned on his guarantee to indemnify the person paying
against, and to satisfy a prior assignee of the same right of action,
does not create such privity between such prior assignee and him-
self as to enable the first assignee to sue for the debt received as
money received to his use.

Form of declaration by assignees of choses in action argued.

WRIGHT AND OTHERS V. BAKEWELL. 108
CLAIMANTS' RELIEF ACT. - See NORTHERN TERRITORY ACTS,
1863, 1868, 2.

COLONIAL ACT 16 of 1842.-See WILLS.

COMPANY.-See NORTHERN TERRITORY ACTS, 1863, 1868, 2.

CONCEALMENT.-See INSOLVENT AMENDMENT ACT, 1870.

CONDITIONS.-See POLICY OF INSURANCE.

CONFLICTING ASSIGNMENTS.-See CHOSE IN ACTION.

CONSIDERATION.-See CHEQUE.

CONTRACT.-See NORTHERN TERRITORY ACTS, 1863, 1868, 2.

CONTRACTS.-See DISTRICT COUNCILS ACT, 1858.

CONTRADICTION.-See DEED.

CONTRIBUTION.-See TRUSTEES, 1.

CONVERSION.-See ADMINISTRATOR.

CORPORATION.-By-Laws Authority.

The fourth section of the

By-laws of the Corporation of Adelaide, making it lawful for the
City Surveyor to enter any building to search for any inflammable
substances, &c., is ultra vires.

DURIEU V. Vosz. 27

COSTS. See MISDIRECTION, 1.

LOCAL COURTS ACT, 1861, 2.

Page.

MISDIRECTION.-2.-New Trial. A party is not entitled, as of
right, to a new trial when there has been a misdirection; but if
the Court is of opinion that substantial justice has been done or
can be done without a further trial the rule will be refused.
WARREN V. ROUNSEVELL. 101

MONEY HAD AND RECEIVED.-See CHOSE IN ACTION.
MORTGAGE.-See FORGERY. TRUSTEES, 2.

NEGLIGENCE.-See BILL OF LADING.

NEW TRIAL.-See MISDIRECTION, 2.

NONJOINDER.-See POLICY OF INSURANCE.

NONSUIT.-See AGREEMENT FOR TITLE.

NORTHERN TERRITORY ACTS, 1863, 1868.-1.-Land Orders-
Survey within five years-Time. The effect of the Northern Terri-
tory Amendment Act, 1868, was not compulsorily to alter the
contract between the Government and the holders of land orders
under the Northern Territory Act, 1863, nor to deprive those
holders of their right of action for its breach, although it rendered
its performance by the Government impossible.

On an action by the holders of land orders for not surveying and
allotting the land sold within the time limited by the Northern
Territory Act, 1863, an equitable plea alleging time not to have
been of the essence of the contract was therefore disallowed, it not
being possible for the Government to perform their agreement at all
after the passing of Act 3 of 1868.

NORTH AUSTRALIAN COMPANY V. BLACKMORE. 149
2.-Regulations

Applications for land - Land Orders - Contract - Company -
Estoppel - Claimants' Relief Act. By regulations made under
Northern Territory Act, 1863, the officers in London and Adelaide
were empowered to receive applications for the land to be sold
under the Act, for twenty-eight days after 1st March, 1864. The
form of application to be followed required a statement of the
quantity of land wanted, the amount of deposit paid, and an
agreement to accept all applied for or any less quantity, to pay the
balance of purchase-money, and to conform to the regulations.

On the 29th March, certain persons as directors and promoters,
on behalf of a company not then in existence, forwarded a letter
with £8,000, for the purchase of lands-town and country lots-
in the Northern Territory of South Australia, the demands of
private individuals to be satisfied before the allotment of any lands
on this application." The contemplated company was afterwards
incorporated, and the Government then allotted to the Company
certain sections pursuant to the above application, and issued land
orders in respect thereof.

The Northern Territory Act provided that the holders of land
orders should, within five years, select, out of land surveyed by
the Government, the land required by themselves. Such selection,
however, was prevented by the Government not having surveyed
within the prescribed time. The Northern Territory Amendment
Act, 1868, extended the time for selection, but rendered it
impossible for the Government to fulfil their original contract. The

Company then sued the Government under the Claimants' Relief
Act, their declaration containing a special count for non-per-
formance of the contract, and the common count for money had
and received. The defendants contended that the land orders were
not issued in conformity with the regulations, by reason that the
persons to whom the orders were issued were not the persons
mentioned in the application; that the application was not in the
form required by the regulations in not applying for a specific
quantity of land; also, that the contract being made by the
Government of South Australia in the carrying out of a public
undertaking, did not confer rights on the plaintiffs capable of
being enforced at law; and that the Northern Territory Amend-
ment Act, 1868, operated as a repeal of the Act of 1863, and
therefore altered the contract and deprived the Company of its
right of action.

Held-First-That under the regulations it was lawful for the
Government to issue the land orders to the transferee of the
original applicant, and that there is no authority for saying that a
Company cannot carry out and complete negotiations previously
entered into on its behalf before its formation, and make them the
basis of a valid contract.

Second--That the application was capable of being read as an
application for all the sections of land, the deposit on which would
not exceed the amount sent, which should not have been applied
for by private applicants; and as that could be rendered certain on
the last day for receiving applications, that it substantially specified
the land applied for.

Third--That in addition, the Government, having received the
money and issued the land orders, were estopped from setting up
that they did not constitute a valid contract.

Fourth-That the Claimants' Relief Act was intended to apply
to all cases in which an action would have lain against the Govern-
ment were it an individual.

Page.

Fifth-That though the Northern Territory Act, 1868, rendered
it impossible for the Government to carry out their contract with
the holders of land orders, it did not affect the rights of such
holders to obtain compensation for the breach of such contract.
NORTH AUSTRALIAN COMPANY V. BLACKMORE. 157

NOTICE.-See ACT FOR ERADICATION OF SCOTCH THISTLES.
OBJECTIONS.-See LICENSED VICTUALLERS ACT, 1869-70, 1.
ORDER EX PARTE.-An order made ex parte by a Judge in Chambers
on petition and without evidence directing the personal represen-
tative of a defendant to pay the taxed costs of a suit held irregular
and set aside.

BARTLEY V. BoswORTH. 117

OWNER.-See ACT FOR ERADICATION OF SCOTCH THISTLES.

PAROL AGREEMENT.-See DEED.

PARTIES.--Administration.

A bill by a creditor of an intestate
against the heir-at-law alone for recovery of a debt, alleging that
deceased had no personalty, and that no administrator had been
appointed, is demurrable for want of parties.

RINDER AND WHITFIELD V. MIDDLETON. 46

Page.

PAYMENT OF COSTS.-See STAY OF PROCEEDINGS.

PERSONALTY.-See WILL.

PERSONS PRIMARILY LIABLE.-See DISTRICT COUNCILS ACT,

1858.

POLICY.-See CHEQUE.

POLICY OF INSURANCE.

Proposal Nonjoinder Conditions.
Proposal to insure was made by A. S. & Co. for self and partners,
and signed "M. Saunders & Co." The policy issued to M. Saun-
ders & Co. The conditions of the policy provided that the policy
should be void if matches were kept on the insured premises, and
that in the event of fire the amount of loss should not be recover-
able unless a detailed account of the loss or damage should within
a certain time thereafter be furnished to the insurers.

A fire having occurred, no detailed account of the loss or damage
was delivered, but merely an approximate return of the value of
the different classes of goods destroyed.

Action was then brought to recover on the policy by two
persons alleged to constitute the firm of M. Saunders and Company,
A. S. not being joined. On the trial it was proved that A. S. was
not a member of the firm of M. Saunders & Company, and it also
appeared on the plaintiff's case that within one month from the fire
matches had been kept in stock on the insured premises.

Held-That the proposal being by A. S., on behalf of himself
and partners, the policy must be taken to have been made out to a
firm of which he was one, and that he therefore should have been
joined.

That matches having been kept on the premises, at any rate till
within a month of the fire, the policy was vitiated.

That the approximate furnished was not a compliance with the
condition of the policy as to the delivery of particulars.

SAUNDERS V. EQUITABLE FIRE INSURANCE COMPANY, 124
PRACTICE.-1.-It is not necessary for a plaintiff to file an affidavit
of service of interrogatories before filing a traversing note, the onus
being on the defendant to show he was not so served.

DAWSON V. DALWOOD. 10

-2.-See ADJUDICATION OF INSOLVENCY.

-3.-Exceptions-Further consideration.

While excep-

tions to Master's report were pending, the plaintiff set down cause
for further consideration, and was held entitled to do so. Where
the Master's report has been altered on the argument of exceptions,
it is not the practice as in England to send it back to be reformed,
but to vary the certificate and proceed at once to hearing on further
consideration.

ST. GEORGE v. BURNET. 118

4.-Review of Master's Certificate. No review of the
Master's certificate can be obtained on summons after a cause is set
down for further consideration. If obtainable at all, it must be on
motion or petition.

-5.-See PRACTITIONER.

ST. GEORGE v. BURNET. 127

PRACTITIONER.-Affidavit-Practice.

An affidavit in support of

-, one, &c."
IN THE MATTER OF

ONE, &C., A PRACTITIONER. 76

an application to strike a practitioner off the roll must be entitled
"In the matter of

PRIORITY.-See CHOSE IN ACTION.

PROPOSAL.-See POLICY OF INSURANCE.

REAL PROPERTY ACT.-1.-See FORGERY.

-2.-See TRUSTEES, 2.

-3.-Caveating Capacity-Judgment Credi-

tor. A creditor on a judgment of the Supreme Court has no
caveating capacity under the Real Property Act, 1861.

IN THE MATTER OF A CAVEAT LODGED BY H. C. PALMER.
Encumbrances.
4.-Registered Holder

--

A holder of a certificate of title holds it absolutely free from all
encumbrances not notified thereon, and is therefore not bound by
any demise not so notified.

Per GWYNNE, J.-Under the Real Property Act a term of less
than three years cannot be registered, and semble cannot therefore
be created.

80

MANNING V. CROSSMAN. 130

-5.-See EJECTMENT.

REGISTERED HOLDER.-See REAL PROPERTY ACT, 1861, 4.

REGISTERED PROPRIETORS.-See EJECTMENT.

REGULATIONS.-See NORTHERN TERRITORY ACTS, 1863, 1868, 2.
REHEARING.-See LICENSED VICTUALLERS ACT, 1869-70, 2.

RENEWAL OF LICENCE.

1869-70, 2.

-

See LICENSED VICTUALLERS ACT,

REVIEW OF MASTER'S CERTIFICATE.-See PRACTICE.
REVIVOR.-Administration. A bill for administration was filed by
J, H, C, and A., devisees against F executor, and the usual
decree made. Subsequently F died, and G his executor was ordered
to be defendant in his stead, and it was also ordered that E who
was by the will to be in the same position as the other plaintiffs on
becoming a widow, should (the contingency having happened) be
also joined as plaintiff. For many years after this nothing was
done. E again intermarried, and subsequently a bill of revivor and
supplement was filed by the plaintiffs as Trustees under a settle-
ment made on the second marriage of E against G and all the
plaintiffs in the original suit, seeking to charge G in his character
of executor and otherwise with waste and misapplication of assets.

The original suit had not been revived; the bill did not pray for
such revivor; nor did any reason appear in the bill why the plain-
tiffs in the supplemental should have separated themselves from
the plaintiffs in the original suit.

Held-Firstly-That the original suit must be revived, and the
plaintiffs made parties before they could avail themselves of it.
Secondly-That the bill should have shown special equitable
grounds for the plaintiffs separating themselves from the plaintiffs
in the original suit.

CULLEN AND HOLLAND V. CHAMBERS AND OTHERS. 19