a present on your arrival in the colony," the arrival in the colony being only used to mark the time or occasion upon which the promise is made. It has been ably put by Mr. Stow, as if it was a condition—“ If you will come to the colony of South Australia, then I will give you £500." If that were so, undoubtedly the promise would be one which the law would support as a contract, and one upon which assumpsit would lie; but, to my mind, that is not the natural or reasonable construction of the term used. There is a difference between saying, "If you come out I will give you something," and "I will not put my name upon paper, but on your arrival I will make you a present of so much." Here, also, the idea of coming out emanated with the plaintiff. He consulted with the defendant, told him that it would be for his advantage to come out, and the matter was altogether one for his (the defendant's) own benefit. It is the duty of the Court in a case of this kind to see whether there is any contract at all; and, secondly, to interpret it. My opinion is that this is not the language of a contract, but merely refers to a gratuitous favour on the part of the plaintiff, and was so understood by the defendant. Undoubtedly, if I could come to any other conclusion on this, the whole requisites of a contract exist, for the relation between the promise and the coming out is that subsisting between a promise and consideration. If the coming out was intended as a consideration, it would have been a sufficient one; but I give my judgment entirely upon the interpretation I have put upon the language used, and the conduct of the parties; and although the plaintiff may be bound morally to pay, my duty is not to dispose of the case according to the rules of casuists, but according to the rules of law. It therefore appears to me that no contract or legal obligation to pay ever arose between the parties. The case of Shadwell v. Shadwell has been referred to. There, two Judges held that where the nephew Shadwell engaged to marry, a promise to give an annuity was binding; that is, the performance of an agreement which the party was not legally liable to perform. That view, however, was ably opposed by Justice Byles; and I think I may, without arrogance, say that I entirely agree with his judgment. I believe, too, that it will be followed in preference to those of the other Judges. I observe that Mr. Shadwell died afterwards, and the matter was compromised; but Justice Byles's judgment regulates Mr. Chitty in writing his text upon this subject.

HANSON, C.J.-In this case I also am of opinion that the rule must be discharged. On the trial it appeared to me that the whole question turned on the construction which I, as the Judge trying the cause, was bound to put on the letter of the plaintiff of 18th January, 1860. It appeared to me, and further consideration has only confirmed me in that view, that the intention of the plaintiff in writing that letter was, as expressed by my learned colleague, Mr. Justice Gwynne, to exclude pointedly the idea of incurring a legal liability-to offer to make a present as contra-distinguished from anything by which he could be bound in point of law. He purposed avoiding anything like a legal contract, and only intended making a promise without consideration, which, no doubt, he designed to fulfil. And this distinguishes the present case from those relied upon on the part of the defendant. I do not know that it is necessary to add anything more, except that, although I believe the letter of the defendant of April, 1861, and the conduct of the parties, so far as it appeared, was confirmatory of that view, yet that my judgment does not rest in any degree upon anything that took place subsequently on the part of the defendant. After the receipt of the plaintiff's letter, nothing was shown as having been done, or as having been communicated by the defendant to his brother, which would have thrown upon the plaintiff the duty of disavowal, by showing that the language he had used was taken in a different sense from that which it appeared to, or did, mean. I refer to this point for the purpose of saying that if I thought it was necessary for the decision of this case to take into consideration the conduct of the parties after the defendant's arrival here, it would only be just to him to have a new trial, and allow him to give evidence upon the matter; but it appears to me that the conduct of the parties after S. E. Boord's arrival here, although it might not have been immaterial if there had been any ambiguity in the words of the plaintiff, was not at all necessary to consider where they are clear and unambiguous as they seem to me.

Rule discharged.

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AUGUST 27, 1866.

CAPLE V. FRISBY.

ORDER of a JUDGE in Chambers setting aside a Judgment and Execution issued out of this Court upon a certiorari, removing a Judgment from the Local Court, and remitting case back to Local Court-Motion to set order aside. Order confirmed, on Defendant filing affidavit of merits.

In this case judgment was against the defendant, representing the firm of H. Frisby & Co., in the Adelaide Local Court. That judgment was subsequently removed by certiorari into the Supreme Court, and a ca. sa. issued thereon. Subsequently an application was made before Mr. Justice Boothby in Chambers to set aside the judgment and certiorari, on the ground that after the accruing of the cause of action, and before action brought, the defendant had executed a deed of assignment under the provisions of the Insolvent Act. The learned Judge made the order asked for, and remitted the proceedings back to the Local Court. The Attorney-General now moved to set aside that order, and in support of it an affidavit by J. Simpson was read, to the effect that the plaintiff had had no opportunity of inspecting the deed; and contended that a Judge in Chambers had no power to set aside a regular judgment of the Supreme Court; and the 183rd clause of the Insolvent Act showed, that notwithstanding a deed of assignment, judgment might regularly be obtained and execution issued against the assignor. Here the proceedings had been regular throughout, and had the defendant wished to avail himself of the deed, he ought to have come in and pleaded it. The learned counsel referred to the 54th section of the Local Courts Act, and to the case of Whitmore v. Wakerley, 11 Jur., N.S., 182.

Rule nisi granted.

OCTOBER 11, 1866.

Stow, Q.C., now showed cause. By a recent Act every judgment in the Local Court might be entered up in the Supreme Court, and on this being done it was necessary before any further proceedings could be taken that the judgment should be set aside by the Supreme Court, and that Court would not allow its process to be used for the oppression of a party who through the mistake of his counsel had had judgment entered

against him by default (as was the case in this instance), but would, upon seeing that the defendant could show merits were in his favour, set aside the judgment so as to allow him to appear and defend the action; and if the verdict went against him the proceedings could be again removed by certiorari, so that the plaintiff would not be injured in any way. The affidavits of the defendant and Mr. Ingleby, his attorney, stated that, previous to the action in the Local Court, out of which this motion arose, the defendant had made an assignment of all his effects under the Insolvent Act, and instructed Mr. Emerson, solicitor, to defend the action, of which he had notice from the plaintiff, but through some mistake he did not do so. Judgment went by default, and the defendant knew nothing about it until he was arrested under a writ of ca. sa., out of this Court. He could not take action in the Local Court as the proceedings had been removed to the Supreme Court. I presume the Court in the exercise of its equitable jurisdiction would justify the order of the learned Judge, the only effect of which was to remove the difficulty in the way of the defendant, according to the ordinary practice of all Courts, going before the Court in which judgment was signed, and applying to have that judgment set aside upon an affidavit of merits. I contend that I had a right to file an affidavit of merits (Sanderson v. Proctor, 10 Exch. Reps., 189), and that the statement of facts which amounted to merits on the side of the defendant, was equal to the assertion of the belief by the party or his counsel that merits were on his side, and in support of his right to plead the assignment under the insolvency as an answer to the action. (Evans v. Gill, 1 Bos. and Pull, 52.) Simply applying to the Commissioner of Insolvency for the protection of the Insolvency Court would not have been sufficient, as the defendant claimed the right to have a judgment of the Local Court in his favour.

The Attorney-General, in reply-The defendant had now shifted his ground from that taken before the Judge in Chambers, and although the Supreme Court might have the power if it saw fit to remit back the case, a single Judge had not the power; but upon receiving an intimation that the Court is against me on that point, I will not press it any further. The defendant could not come in and file fresh affidavits in addition to those used before the Judge, to make up for the laches of his attorney; and even if they were admissible, they were defective, as they did not state in

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express terms that according to conscience the defendant had a good defence on the merits. (Rowbotham v. Dupree, 5 Dowl, 557.) The deed under which the defendant claimed a defence to the action was bad upon the face of it, and not in accordance with the 183rd section of the Insolvency Act, or if it were, the defendant could have obtained protection under it. (Whitmore v. Wakerley.) The defendant ought not to be allowed to use affidavits of which the plaintiff had not had notice.

HANSON, C.J.-The order will be confirmed upon the defendant filing an affidavit of merits.

Rule discharged without costs, with liberty to the plaintiff to give notice within two days of his intention to abandon the action without costs.

AUGUST 27, 1866.

HANLIN V. HANLIN.

PROHIBITION.-Local Court, Limited Jurisdiction-Plea of set-off for sum exceeding £20—Cause tried by Special Magistrate-Verdict for Plaintiff — On motion for prohibition, on ground that jurisdiction of Magistrate was ousted. Held, that Magistrate had jurisdiction. Rule for prohibition discharged.

THIS was an action brought in the Local Court of Kapunda to recover £10 12s. The defendant pleaded never indebted, and a set-off amounting to £21. The cause was set down for trial, limited jurisdiction. When called on for trial, defendant, by his counsel, appeared and objected that the Magistrate had no jurisdiction, as the claim of the defendant exceeded £20, and the cause ought to be tried before a Court of full jurisdiction. The Magistrate overruled the objection, whereupon the defendant left the Court. The trial of the cause proceeded in his absence, evidence was given by the plaintiff in support of his claim, and a verdict found for the plaintiff for the sum claimed.

The defendant obtained a rule nisi for a prohibition, and it now came on to be argued.