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. THIS was a case stated for the opinion of the Court by Mr. Beddome, S.M. The defendant had been charged with and fined £5 for obstructing the City Surveyor in carrying out By-law 47 of the Corporation of Adelaide. The By-law, after reciting the Act No. 16 of 1861, states that "from and after the 15th day of September, 1870, no greater quantity than 300 gallons in the whole of kerosine, petroleum, naphtha, turpentine, pitch, tar, resin, or other similar substances of a volatile character, whether in a solid, liquid, or semi-liquid state, shall be placed or retained at any one or the same time in any one building and the yards, offices, and appurtenances thereof, unless in any building which being situated at a distance of not less than 100 feet from any other building shall be of the description following." The second section of the By-law provides that "every person being the occupier or having the control of any building or tenement, of whatsoever description, within the City of Adelaide" (not being a building situated and constructed in manner described in the first section, &c.), "who shall place, or cause, or permit to be placed, or allow to remain within such building, or its yard, or offices," a greater quantity of kerosine, &c., shall, upon conviction, pay a penalty of not more than £10, nor less than £5. The only other material part of the By-law was the fourth section" It shall be lawful for the City Surveyor for the time being, with or without assistants, and for any other person or persons appointed by him, with or without assistants, to enter into and upon any building in the City of Adelaide, and the outbuildings and grounds thereof, in order to search for any of the inflammable substances in this By SUPREME COURT. DURIEU V. Vosz. COMMON LAW. law mentioned, and there to continue for such time as may be reasonably necessary for the purpose aforesaid, and for the purpose of weighing and measuring the contents of the packages containing such substances as aforesaid, and for the purpose of removing the same; and any person obstructing the City Surveyor or his assistants, or his nominee or his assistants, or any of them in the discharge of his or their duties hereunder shall forfeit and pay a penalty or sum not being less than £5 and not exceeding £10." The evidence proved that the Sanitary Inspector and City Surveyor on the 11th of February went to the defendant's premises, where they saw a quantity of cases marked as kerosine cases usually are, and on defendant refusing to say whether they contained kerosine proceeded to open the cases, when defendant insisted upon his leaving the premises, and putting his hand upon his shoulder pushed him towards the door, and turned him out of the store. The Special Magistrate found that the offence had been committed, but reserved the following question for the opinion of the Supreme Court:-Whether the said By-law was unreasonable, illegal, and unauthorized by the Corporation Act; or, assuming other portions of it were authorized, whether section 4 was illegal; whether it was the duty of the City Surveyor to break open the tins in the manner specified; and whether the defendant was not justified in preventing him doing so. HANSON, C.J.-Does the respondent contend that the office would be justified in breaking open the cases? Stow, Q.C., for respondent, apprehended that would be included in the power to search. It would be impossible in many instances to prove that there were inflammable materials without that, and the By-law would be nugatory. Boucaut and Way, for appellant.-If the City Surveyor chose he might without any reasonable ground-merely on his own suggestion go into any house in Adelaide and search from top to bottom-for it is not like a right of search upon an affidavit being made before a Magistrate that reasonable ground existed. (GWYNNE, J.-I apprehend under this By-law he could do more. He could break outer doors, inner doors, cupboards, and everything else.) SUPREME COURT. HARDZ V. WIESENMEYER. COMMON LAW. The principle that every man's house is his castle would then only exist subject to the fancy of the City Surveyor. HANSON, C.J.-I should be glad to hear you, Mr. Stow; but it seems impossible to support a By-law like that without any restriction, by which any private house in Adelaide may be searched at any moment, whether there is any ground to suspect it of containing inflammable goods or not, and every part of the house may be broken into. Do you think you can support it? The only question is (GWYNNE, J.-There Stow. I must admit it would go to that. whether that would be reasonably necessary. is a provision in the Act which would prevent it—" Provided that no By-law to be passed by the Council shall be repugnant to this Act or to the general spirit and intendment of the laws in force within the said province.") Of course no By-law can go against the intendment of general enactment; but the question is whether or not the Corporation having the power to make By-laws for regulating the storage of inflammable materials, it is not essential to the exercise of that power that they should also have the power to search. HANSON, C.J.-The answer will be that the By-law is beyond the power of the Corporation. Case answered accordingly with costs. HANSON, C.J., GWYNNE, J., WEARING, J.] [COMMON LAW. 2 JUNE, 1871. HARDZ V. WIESENMEYER. AGREEMENT FOR TITLE.-Function of Judge and Jury- On action by A. against W. for failure to make a good title, it SUPREME COURT. HARDZ V. WIESENMEYER. COMMON LAW. A. became entitled to a conveyance W. paid off and discharged the mortgage. B. died, having before his death signed a paper stating that W. was entitled to receive the whole of the purchase-money. Held-That W. had both the legal and equitable estate, and the action did not lie. At the trial the Judge directed the jury that in the above facts the plaintiff had refused a good title, and they should therefore find for the defendant; and they having expressed a contrary opinion, he discharged them and nonsuited the plaintiff. The plaintiff at the trial declined to accept the nonsuit and insisted on a verdict being taken, which the Judge refused to allow. Held-That the Judge was justified in withdrawing the case from the jury. THE action was brought by the plaintiff, Henry Hardz, a purchaser, against the defendant, as the seller of an allotment of land in Gawler West, for an alleged breach of contract in not making a good title. The purchase-money consisted of £150, to be paid in weekly instalments of 10s., and the plaintiff averred that the defendant promised on the completion of the payments to make a good title to the land, the plaintiff having entered into possession when the contract was made. The principal plea of the defendant was that it was arranged that he should deliver all his title-deeds to the plaintiff's solicitor, to be used for the purpose of getting a certificate under the Real Property Act, and that he did so deliver them. The plaintiff contended that the documents so delivered did not constitute a good title. On the trial before GWYNNE, J., it appeared that before the contract the defendant had mortgaged the land to a Building Society, and conveyed the equity of redemption to one Behrens, his brother-in-law; that the conveyauce to Behrens was voluntary and not intended to give any title; that Behrens had since died, but before his death had signed a paper directing the whole of the purchase-money to be paid to the defendant, and that the defendant had paid off the mortgage and obtained the receipt of the trustees. His Honor considered that the agreement with Behrens revested the equitable and the receipt the legal estate, that the defendant had a good title, and therefore nonsuited the plaintiff. A rule nisi for a new trial having been obtained, SUPREME COURT. HARDZ V. WIESENMEYER. COMMON LAW. Way and Bundley, for defendant, showed cause, contending on the above facts that a good title had been shown. Stow, Q.C., and Barlow, in support of the rule, contended that it had not; but that what he had offered to plaintiff's solicitor was a title with a blot, consisting of the conveyance to Behrens, appearing on the face of it, and with nothing at the time to suggest that it was not a conveyance for valuable consideration of the equitable estate. If Behrens had made a single payment to the Building Society he would have been entitled to retain that deed, and there was evidence that he had taken it away from Mr. Galley's office, where it was drawn. If the agreement of Behrens was complete and signed by both Behrens and Hardz, an agreement to convey on the performance of a contract was not a conveyance, and a conveyance was what the plaintiff was entitled to. If he accepted the agreement Behrens would not have been under an obligation to execute a conveyance till the whole of the £150 stipulated had been paid, so that the plaintiff could have been compelled to pay the purchase-money twice before getting his title, because although Wiesenmeyer held an authority from Behrens to receive the money, that would not cover all the payments, some of which were made after Behrens' decease. Tasker v. Small, 3 M. & C., 70 Bird v. Bird, 9 Hare, App. xliv. HANSON, C.J., said he thought the defendant had declined a good title. At the time the property was sold, Wiesenmeyer had only the equity of redemption or in one sense, it might be said he had nothing, so far as would appear by the registry, because there was a mortgage to the Building Society, and a conveyance of the equity of redemption to Behrens; but the evidence was conclusive to him that under the conveyance to Behrens no interest passed. There was the evidence of Mr. Galley, the evidence of Mrs. |