22nd, and so on from day to day, as might be
required. The summons was served on the after-
noon of May 22nd. Held, that the witness was
bound to attend after service of the summons.
CLOUGH V. BATH, 22 W.N. 152.

2. Royal Commissioners' Evidence Act, 1901
No. 23, ss. 3, 8-Refusal to give evidence--Infor-
mation-Power of commissioner.-In an infor-
mation against a witness for refusing to answer a
question after being served with a summons under
s. 8 of 1901 No. 23, it is not necessary to allege
that the evidence of the witness was in the judg-
ment of the commissioner material to the enquiry.
Under s. 3 the commissioner can summon any
person whom he thinks can give material evidence,
and the exercise of his discretion in this respect
cannot be challenged. Ib.

3. -1898 No. 11, s. 23-Proceedings before
justices-Certificate.-On an application for a
prohibition the certificate of the proceedings before
the justices described the Chamber Magistrate as
the officer having the custody of the records, &c.,
and omitted to state that he was the officer
ordinarily having the custody, &c. Held, that the
certificate was informal, and that in the absence of
the original depositions or a certificate in proper
form, the rule must be discharged. Ex parte
BROWN, 5 S. R. 691; 22 W.N. 148.

4. -1898 No. 11, s. 23-Proceedings before
justices-Certificate.-On an application to make
absolute a rule nisi for a prohibition the Full Court
upheld an objection that the certificate of the pro-
ceedings before the justices was informal, in that
it did not state the place where the proceedings
were held, and discharged the rule. Ex parte
ESLICK, 5 S. R. 470; 22 W.N. 148.

5.-1898 No. 11, ss. 15, 21-Judicial proceed-
ing of foreign Court-Certificate of registration
of foreign company-Proof of seal -A copy of
a certificate of registration of a foreign company
purporting to be sealed with the seal of a foreign
Court, and certified by a Judge to be a true copy of
the original register, held, admissible as a judicial
proceeding under 1898 No. 11, ss. 15, 21, without
proof of the seal of the foreign Court. BOWDEN
BROS. & Co. v. IMPERIAL MARINE AND TRANSPORT
INSURANCE Co., 5 S.R. 614; 22 W.N. 195.

6. Presumption as to foreign law. There
is a presumption that foreign law is the same as our
law until the contrary is shown. BOWDEN BROS,
& Co. v. IMPERIAL MARINE AND TRANSPORT
INSURANCE Co., 5 S.R, 614; 22 W.N. 195.

7.——Libel—Admission of—Subsequent state-
ment to prove malice.-A document com-
posed after the libel sued upon, and relating to the
same subject matter is admissible to show the
mind of the defendant and his knowledge at the
date of the libel, although such document has never
been published, or out of the defendant's
possession. MACINTOSHI V. DUN, 5 S.R. 708; 22

W.N. 229.

2. -Wills Probate and Administration Act,
1898 No. 13, ss. 44, 45, 46—Probate Act, 54 Vic.
No. 25)-Executor of executor--Power to sell the
real estate of original testator.-The original
testator being seised of real estate died in 1895.
Probate of his will was granted to his wife, the sole
executrix. The sole executrix died in 1901. Held,
that the executors of the sole executrix to whom
probate had been granted had power to sell the
real estate of the original testator.
MANNING, 5 S. R. 453; 22 W.N. 114.

Ex parte

3. Infant legatee-Payment on marriage
notwithstanding infancy-Power to give dis
charge-Intention of testator-Will.-Ån infant
is entitled to payment of and can give a valid dis-
charge for a legacy during minority where, on
the construction of the will, it appears that such
was the testator's intention. In re MEARS;
MEARS v. MEARS, 5 S. R. 140; 22 W.N. 49.

4.- -Administration de bonis non-Next of
kin out of jurisdiction-Service-Practice.-The
personal representatives in England of the estate
of a deceased person appointed an attorney
in N.S.W. to apply for administration de bonis

non of the intestate estate in N.S. W. of the

wife of the deceased. All the next of kin
resided

out of N.S.W. One resided in
India and the other in England. The Court
refused to grant administration to such attorney
until the next of kin had been served with notice
of the application. Re BEDFORD, 5 S. R. 47; 21
W.N. 201.

bequeathed certain shares in certain corporations;
of these shares some were partially paid up, others
were fully paid up, but were subject to a contingent
liability. Upon the execution by the respective
specific legatees of indemnities to the executor and
the residuary legatees and the consent of the
respective corporations: Declared that the executor
would be justified in transferring the shares in
question to the respective specific legatees, and in
transferring the residuary estate to the residuary
legatees without retaining any portion thereof to
provide for the contingent liabilities upon the
shares in question. MACKENZIE v. BLOMFIELD,
5 S. R. 209; 22 W.N. 76.

7. -Plan of distribution-Sect. 89 of the
Wills Probate and Administration Act-Rule 48.
-The Court will not approve a plan of distribution
except upon the certificate of the Registrar that
the plan is a proper one.
In the Will of ROSSITTER,
22 W.N. 115.

8. Locke King's Act, 17 and 18 Vic.
c. 113-Conveyancing and Law of Property
Act, 1898 No. 17 S. 109-Mortgage of
freeholds-Contemporaneous personal security
for same debt-Devise of realty-Bequest of
personalty Incidence of mortgage debt-
Primary or secondary liability.-Administra-
tion. Where real and personal estate are com
prised in the same mortgage the mortgage debt
must, as between the devisee of the realty and the
legatee of the personalty, in the absence of evidence
that the land was intended to be the primary
security for the amount advanced, be borne rate-
ably by the real and personal estate subject thereto.
Locke King's Act, now s. 109 of the Conveyancing
and Law of Property Act, 1898, does not make
mortgaged lands primarily liable for the mortgage
debt to the exoneration of personal property sub-
ject to the same mortgage. MULLAVEY v. HARRI-
SON, 5 S. R. 545; 22 W.N. 185.

9. -State Children Relief Act, 1901 No. 61,
s. 23-Wills, Probate and Administration Act,
1898 No. 13, ss. 84, 89-Application for legacy-
Moneys belonging to State children-Upon an
application that the executrix under a will
should pay to the Minister or the State Chil-
dren's Relief Board a sum of money in their
hands belonging to certain boarded-out State chil-
dren, held, that s. 23 of the State Children Relief
Act, 1901, did not entitle either the Minister or
the Board to receive payment of the money, and
that consequently neither the Minister nor the
Board was a "person entitled" within the meaning
of s. 84 of the Wills, Probate and Administration
Act, 1898; the effect of s. 23 of the State Children
Relief Act, 1901, is to impose an obligation on the
persons holding moneys belonging to State children
to place the same to a separate fund, which then
becomes subject to the control of the Board.
Sect. 89 of the Wills, Probate and Administration
Act, 1898, must be read with the sections imme-
diately preceding it, and should not be construed
as giving to the Probate Court general jurisdiction
of a Court of equity in respect of the distribution
and application of moneys belonging to the estates
of deceased persons.
In the Will of Mossop, 5

S. R. 722; 22 W.N. 226.

Second conviction on same facts.-The applicant
was charged under s. 19 (2) of 1902 No. 18 with
being found in a betting house and convicted, the
evidence showing that he was not only there; but
was assisting the keeper thereof. He was then
charged under s. 19 (1) with assisting the keeper
and, the depositions in the former case being put in
by consent as the evidence in the case, was con-
victed. Held, that he had not been convicted a
second time upon the same facts within the mean-
ing of the maxim nemo debet bis puniri pro uno
delicto, since though the same evidence was given

HUSBAND AND WIFE.
Separation deed-Married woman-Restraint
against anticipation-- Waiver Trustee--Estoppel
Representation of intention-Representation
of existing fact.-The defendant covenanted by
deed to pay to the plaintiff £400 per annum
upon trust for his wife without power of antici-
pation. The deed provided that if after the
expiration of one year the defendant considered the
amount should be reduced he should give notice to
the trustee, and if no agreement was arrived at
within one month the deed was to become void.
The defendant gave notice to his wife's solicitor.
Other arrangements were made and moneys paid on
the understanding that the deed was at an end.
No notice was given to the trustee. The trustee
then sued on the deed. Held, that the representa
tion of the wife that she would accept notice and
that she was willing to consider the deed at an end
was a representation of an intention and not of a
fact. Held, further, that as the money was pay-
able subject to a restraint against anticipation, she
had no power to waive the notice to the trustee.
Held, further, that no waiver of notice by the wife
could bind the trustee. MCNAGHTEN . PATERSON,
5 S. R. 90; 22 W.N. 25, 216.

2. Separation deed Inconsistent clauses
-Custody of children-Right of access.-A deed
of separation provided that the wife should have
the sole care and control of the children, who were
to be permitted to reside under the mother's care
in such places and to be educated for such pro-
fession or occupation as she should determine.
Another clause provided that the father should
have access to the children if he should so desire
once a month at some convenient place in or near

See TRESPASS.

INDUSTRIAL ARBITRATION.

1901 No. 59, ss. 2, 34-Industrial dispute-No
existing relationship of employer and employee-
Strike Power of Court to order men to resume
work. The Newcastle Coal Trimmers' Union, who
worked as casual labourers from hour to hour for
anyone offering employment, with the right to cease
work at any time on giving one hour's notice, de-
manded of the respondents a wage of three shillings
per hour for any work required to be done on a
certain holiday, and being refused, such of the men
as were then employed gave the requisite notice
and ceased work, and the remainder refused to
accept employment. The respondents thereupon
applied ex parte to the Arbitration Court and
obtained an order that the men should resume
work pending the determination of the dispute,
under a penalty. Held, that there was no indus-
trial dispute between the parties, since there was
no existing relationship of employer and employee,
and that the Arbitration Court had no jurisdiction
to order the men to resume work. Held, further,
that the Court had no jurisdiction to make the
order ex parte. Ex parte EIFFE; NEWCASTLE
STEVEDORING COMPANY, RESPONDENTS, 5 S. R. 118;
22 W. N. 14.

2.- 1901 No. 59, ss. 2, 34-Industrial dispute
Jurisdiction-Termination of relationship of
employer and employee-Right of employees'
union to proceed.-An industrial dispute was
referred to the Arbitration Court by the respon-
dent union, the matter in dispute being the wages
and conditions of labour at the applicant's colliery.
Pending the hearing of the dispute the men
employed in the colliery ceased work and terminated
the employment, and the mine was subsequently
worked by non-union labour. Held, that the
relationship of employer and employee having
ceased to exist the jurisdiction of the Arbitratior
Court to hear the dispute also ceased. Held
further, that the respondent union had no power t
continue the industrial dispute when those of it
members who were actually interested in the
matters involved therein had terminated their con
tracts with the employer. Ex parte BROWN; THE
COLLIERY EMPLOYEES' FEDERATION, RESPONDENTS,
5 S. R. 412; 22 W. N. 122.

3.--1901 No. 59, s. 36 (b)-Industrial dispute—
Carriers' award-Common rule--Preference to

unionists. In granting preference to unionists, the
Court of Arbitration ordered that notice should be
given by the employer to the secretary of the union
of the labour required. And that any non-unionist
entering the service of an employer might continue
in such employment if he applied to join the union
within a specified time. Held (Owen, J., dissenting
on the first ground), that the Court of Arbitration
had no power to impose such terms in its award.
Ex parte MASTER CARRIERS' ASSOCIATION
N.S. W., 5 S. R. 77; 22 W.N. 27, 216.

OF

4. -Industrial Arbitration Act (1901 No. 59),
ss. 26, 28- Common Rule-Industrial Agreement
- Award Jurisdiction of Court. The Arbi-
tration Court has no power to make an award
in an industrial dispute unless such dispute has
been duly referred in pursuance of the provisions
of the Act. An award held bad, where the
industrial dispute had not been referred in pur-
suance of a resolution passed by the majority of
the members of the union as required by s. 28.
Ex parte HERMANSON, 5 S. R. 607; 22 W.Ň. 208.

by her to have taken place resulting in the
birth of the child, held, not to amount to cor-
roboration as to paternity within the meaning of s.
8 of the Infant Protection Act, 1904. If a sum-
mons is issued under s. 8 of the Act without
evidence of corroboration the defendant may at
once apply for a prohibition. If the defendant
appears and pleads to the information it is the duty
of the adjudicating magistrate under s. 9 to hear
and determine the complaint, without deciding
whether evidence of corroboration was given prior
to the issue of the summons as required by s. 8.
Ex parte JACKSON, 22 W.N. 30.

2. -1904 No. 27-Appeal from magistrate-
Special case-Justices Act (1902 No. 27), s. 101.
There is no appeal by way of special case under the
Justices Act from the determination by a magis-
trate of a complaint under the Infant Protection
Act, 1904. WHARTON V. SCHOFIELD, 22 W. N. 38.

3.-1904 No. 27, s. 31-Practice-Order for
maintenance Statutory prohibition-Common
law prohibition-Right of appeal. -The Court
constituted by virtue of the Infant Protection Act,
1904, is not a Court of Petty Sessions, and there is
no appeal by way of statutory prohibition under
the Justices Act, 1902. Parties have the right to
appeal--(1.) To a Court of Quarter Sessions. (2.)
By way of a common law prohibition if the Court
exceeded its jurisdiction. Ex parte STARK, 5 S. R.
458; 22 W.N. 133.

4. 1904 No. 27, s. 26-Appeal to Quarter
Sessions-Dismissal of complaint-Nonsuit.-On
the hearing of a complaint under s. 8 of the Infant
Protection Act the magistrate refused to make any
the complaint, and that the complainant had the
order. Held, that this amounted to a dismissal of
right to appeal to Quarter Sessions under s. 26.
Ex parte WOODLANDS, 5 S. R. 450 ; 22 W.N. 132.

5.--1904 No. 27, s. 4-Summons-Corrobora-
tive evidence as to paternity Deposition.-Upon
an application for a summons against the putative
father of an unborn child under s. 4 of the Infant
Protection Act, it is not necessary that the
corroborative evidence as to paternity should be
reduced to writing and sworn as a deposition.
Ex parte ANDERSON, 5 S. R. 448; 22 W.N. 121.
6. See PROHIBITION.

INSURANCE.

Life assurance-Contract incorporating foreign
law Contractual rights-Procedure.- Under a
policy of life assurance J. was entitled, at the end
of the period mentioned in the policy, to an equit
able proportion of surplus, either in cash or by a
paid-up policy; at the end of the period J. was
offered an amount said to be such an equitable
proportion as contemplated, but he refused to
accept the amount as sufficient, and instituted a
suit against the insurance company to ascertain
what was an equitable proportion of surplus. The
contract of insurance was expressed to be subject

to the laws of the State of New York, which laws
provide that "no order, judgment, or decree pro-
viding for an accounting.... or interfering with
the prosecution of the business of any domestic
insurance corporation .
shall be made or

granted otherwise than upon the application of the
Attorney-General on his own motion or after his
approval of a request in writing therefor of the
superintendent of insurance . . Held, that
this condition was not a mere matter of procedure,
but formed part of the contract, and was a con-
dition precedent to the institution of proceedings;
the State law on this point was retrospective, and
affected insurances effected before its date. JOHN-
SON v. MUTUAL LIFE INSURANCE COMPANY OF NEW
YORK, 5 S. R. 16; 21 W.N. 108.

2. Proposal-Answer to questions-Mis-
statement of facts.-To the question "Have you
ever had a fire loss or made a claim for fire loss
upon an insurance company?" the plaintiff
answered "Yes, May 13th, 1903. New Zealand
Insurance Co." The defendants pleaded that this
was a misstatement of fact. Held, that the plea
was good since if the defendants could show that
the plaintiff had in fact had other fires the answer
would amount to a misstatement. STIBBARD v.
STANDARD FIRE AND MARINE INSURANCE CO. OF
N.Z., 5 S.R. 473; 22 W.N. 144.

3. Charge of corruption-Directors of in-
surance society-Commission on new business.-
The directors of a life insurance society received
commission upon new business introduced by them
and also upon loans effected. The articles of
association made no reference to such commission,
but provided otherwise for the remuneration of the
directors. Held, that the taking of the commission
under such circumstances and unknown to the
general body of policy holders was a mal-practice
which might well be called 'corruption."
GLISSAN v. CROWLEY, 5 S. R. 219; 22 W. N.
100.

66

4.-Life, Fire and Marine Insurance Act
(1902 No. 49), ss. 8, 9, 10-Protected policy
-Surrender - Trustee - Discharge -- Consent
of cestui que trust.-Plaintiff insured his life
with the defendants under an endowment policy
by which at the expiration of 20 years they
agreed to pay £300 to plaintiff's wife if living, and
if not living then to the children of the marriage.
After three years plaintiff applied, under the con-
ditions of the policy, to be allowed to surrender.
Held, (1) that the trust created by s. 8 of 1902 No.
49 applied to moneys paid on surrender; (2) that
the wife if living at the date of the surrender was
solely entitled to the surrender value; (3) that the
plaintiff, with his wife's consent, could surrender
the policy and give an effectual discharge to the
defendants for the surrender value. PECHOTSCH
MUTUAL LIFE INSURANCE COMPANY OF NEW
YORK, 5 L. R. 252; 22 W.N. 103.

5.-1902 No. 49 s. 4-Insane pati nt-Main-
tenance-Crown_debt-Protected policy. See
CROWN. In the Estate of MATTSON, 5 S. R. 562; 22
W. N. 159.

INTERPLEADER.

1901 No. 7, s. 8-Sheriff's costs of interpleader
summons.-The sheriff is not entitled to the costs
of an interpleader summons without an order to
that effect under s. 8 of the Interpleader Act, even
though he has issued the summons at the request
of the judgment creditor. In future, however, an
order will be made for the sheriff's costs, against
the claimant if he does not appear to contest the
claim, or, where an issue is tried, against the
unsuccessful party.
FOLEY, 22 W.N. 6.

MASSEY HARRIS CO. C.

2. -1901 No. 7, s. 6-Order barring claim
-Costs. Where the claimant neglects to comply
with the interpleader order he may be ordered to
pay to the plaintiff the costs paid to the sheriff for
possession and charges deducted by the sheriff in
ARMSTRONG & Co. r.
consequence of the claim.
TOBIN, 22 W.N. 112.

3.- -1901 No. 7-Sheriff's interpleader-
Costs.-The claimant's costs of appearance to an
interpleader summons were ordered to be paid by
the judgment creditor, though the judgment credi
tor had withdrawn after the issue of the summons.
BARLOW v. LAMBERT, 22 W. N. 6.

JUSTICES.

Defen-

Jurisdiction-Alteration of charge
dant not present-Representation by counsel.
Defendant was charged under 1902 No. 18 with
being the keeper of a betting house and remanded.
When the case came on for hearing defendant was
not present, but was represented by counsel. The
charge as originally laid disclosing no offence, a fresh
one was handed in and read. Counsel for defen-
dant stated he had no instructions to appear for
him on any charge except that on which he was
remanded, and retired from the Court. The new
charge was proceeded with and the defendant con-
victed. Held, that the magistrate had no power
the defendant not being present either personally
to proceed against the defendant on the new charge,
or by counsel. Ex parte DUNN, 5 S.R. 116; 22

W.N. 13.