what was the rate of this "creep." The lift was worked up to the hour of 5 p.m. by a servant of the defendant who at that hour locked the lift and delivered the key to the steward of the Celtic Club, another tenant of the defendant, who then put the lift under the charge of their servant. The plaintiff swore that she was unaware of this change. On the day in question between the hours of 5 and 6 p.m. when the lift was under the control of Cullimore, a servant of the Celtic Club, the plaintiff and her husband were descending in the lift, it suddenly stopped in such a position that there was a space of about 3 feet between the floor of the lift and the ceiling of the floor below of the building. Cullimore pulled the rope downwards and upwards several times, but the lift would not move. A ladder was brought by which M. De Alba descended to the floor below, and the plaintiff then proceeded to descend in the same way when the lift suddenly ascended and the plaintiffs head was jammed between the floor of the lift and the ceiling. The evidence on behalf of the defendant was directed to show that Cullimore in his endeavours to release the lift had left the valve open, and that when some of the weight was removed from the lift the jamb was released and the lift ascended and that this was the only possible explanation of the accident. The jury found a verdict for the plaintiff for £3,000, and found the following specific facts. That the accident was caused by the defendant's neg. ligence, that there was no negligence on the part of Cullimore, that there was no contributory negligence on the part of the plaintiff, and that Cullimore was at the time of the accident in the employment of the Celtic Club. Judgment was entered for the plaintiff accordingly. The defendant now moved for a new trial on the grounds that the verdict was against the evidence, and that upon the evidence the learned judge should have directed a verdict for the defendant, as there was no duty resting upon it towards the plaintiff in the circumstances under which she was using the lift at the time of the accident. OF CASES 16, If by the defendant to the plaintiff to use the lift? there was an invitation and the plaintiff did not know that the control of the lift was changed at 5 p.m-, would that change of control withdraw the invitation?] The invitation could only arise by implication from the facts, and only existed while the defendant's servant was in charge of the lift. The ignorance of the plaintiff as to the true facts would not impose a liability upon the defendant. The invitation is not to use the lift, for then the plaintiff might have entered the lift and worked it herself, neither is the invitation to enter the lift at any hour when it is being worked by some one, for then an unauthorised person might work it, and the owner would be liable to a person then entering it and being injured. If the latter were the invitation it would impose a duty on the owner of keeping the lift locked up and inaccessible when not in use. The invitation is to use the lift when in charge of the defendant's servant. If there was an invitation, then no liability could arise without knowledge on the part of the owner of the defect which caused the accident, and as we contend that the accident did not arise from any defect, but from the negligence of Cullimore, the defendant is not liable. It was not the stopping of the lift which caused the accident, but the fact that being jammed, the removal of some of the weight released that jamb and the valve having been left open by Cullimore in his attempt to release the jamb, the lift suddenly shot upwards. The finding of the jury that Cullimore was not negligent is against the evidence; for the whole evidence points to the fact that the only way the accident could have happened was this, that the lift having become jammed Cullimore, in order to release it, pulled the rope and thus opened the valve, and that he negligently allowed the valve to remain open, so that when some of the weight was removed from the lift it shot upwards and the plaintiff was injured. [MADDEN C.J.-There is evidence that the lift used to "creep" upwards and Mr Mitchell and Mr. Irvine, supported the motion. the jury may have believed that this caused the acciThe plaintiff before she can recover must show that dent]. The case was never put so to the jury, and there was some duty owing to her by the defendant at abundant evidence could have been adduced that the the time the accident happened. This she has not "creep" could not have caused the accident. If the done. She does not prove this duty by showing that negligence of Cullimore caused the accident, then the at the time the accident occurred the lift was not defendant is not liable, for Cullimore was not the serunder the defendant's control. The plaintiff in using vant of the defendant. [A'BECKETT, J.-If there was the lift was a bare licensee, and that being so the de- an invitation does it matter whether the accident was fendant is under no liability, unless there was a hidden caused by the negligence of the boy or by the bad contrap. Ivay v. Hedges, 9 Q.B.D., 80. There could struction of the lift? MADDEN, C.J.-If there was be no implied contract as to the use of a lift, for such an invitation is not the defendant estopped from denyan implied contract involves an easement, and an ease-ing that Cullimore was its servant? A'BECKETT, J. ment cannot exist over a machine. If there could-Does not the defendant hold him not as its servant?] be an implied contract as to the use of the lift Unless the cause of the accident is disclosed the dethat contract only arises from the state of facts fendant is not liable, for it is not a carrier for reward. which existed at the time the plaintiff leased the The following cases were referred to in argument— rooms from the defendant. The utmost that im- Batchelor v. Fortescue, 11 Q.B.D., 474; Miller v. Hanplied contract can be is that the plaintiff shall have cock, [1893] 2 Q.B., 177: Hughes v. Sawyers, 11 the use of the lift while it is under the control of V.L.R. 75, 6 A.L.T. 201; Smith v. London Dock Co., the defendant's servant and during the hours that L. R. 3 C.P. 326; Gantret v. Egerton, L. R. 2 C. P. 371 ; he was ordinarily running it, namely, up to 5 p.m. Scott v. London Dock Co., 3 H. & C., 595; Blakemore [A'BECKETT, J.: Was there not an invitation held out v. Bristol &c. Rly. Co., 8 El. & Bl. 1052. Mr. Maxwell for the plaintiff was not called on. MADDEN, C.J.: This is a motion for a new trial by the defendant company against the plaintiff. The action was brought by Madame De Alba to recover damages for personal injures sustained by her while she was using a lift on the defendant company's building in which she was the tenant of rooms on the third floor to which there was access both by stairs and a lift. She had been accustomed to use the lift constantly in common with other tenants. From the beginning of her occupation of the rooms, the lift had been driven by different men at different times. So far as the plaintiff knew both men were in the employment of the defendant company; in fact one of them, Cullimore, was not in the employment of the defendant company, but one or other of these men habitually drove the machine. The defendant company never gave the plaintiff any intimation that it ceased to be responsible for the lift after 5 p.m. or that the person who worked it after that hour was not in its employment. The jury found in favour of the plaintiff. It is contended that the conditions did not not exist here out of which a duty could arise which is essential to this action so as to make the defendant company liable. It is contended that there is no conveyance, by the lease, of this machinery. It is also contended that there are stairs which afford a means of access to the rooms. But the lift was also there for those who chose to take it and its perils as a means of access and thereby save their limbs and breath. These lifts have become quite common in many buildings in the city. The effect of them being placed in buildings is quite plain. They are an invitation to people to travel up and down in them. In a building of such a kind as that in which the plaintiff was a tenant, it seems quite plain that the lift was put there as an invitation to her to use it. The defendant put it there plainly for the convenience of his tenants and those wishing to do business with them. As far, at all events, as those tenants are concerned a plain invitation is involved in the use of the lift. We therefore think without saying what may arise to casual persons using the lift, that there is clearly evidence that the plaintiff was in the lift by the invitation of the defendant. Being there under those circumstances it is con tended that there is no evidence to warrant the jury in finding that there was negligence for which the defendant company is liable. It is said that the whole evidence showed that the lift having stopped it was in consequence of the valve being opened that the lift ascended. It is said that the opening of the valve was caused by Cullimore who in trying to release the lift pulled the rope. It is said that as it was Cullimore's negligence which caused the accident the defendant company is not liable. But the jury have said that the accident was not due to Cullimore's negligence. Anyone of courses were open to the jury, and the Court is clear about one. It is admitted upon all hands that the first step which led up to the accident was that the safety gear was too sensitive and that it sometimes stopped the lift suddenly when it was running at ordinary speed. It did so on this occasion, and the fact that the safety gear was in this state was a defect which would amount to negligence. The lift having stopped the persons in it were placed in a posi tion of peril. They sought the best means to escape the peril, and Cullimore thought the best thing to do was to pull the rope. It may be that in the opinion of the jury this brought about the accident. In our opinion that may be the history of the case, and it is consistent with the findings of the jury. It is well established that persons who are placed in a position of peril by the negligence of another are not to lose their remedy because they do the best they can to escape that peril, although that best turns out to be the worst thing they could have done, as, for instance, if a horse in a carriage, startled by a steam roller which is improperly managed begins to bolt and a lady in the carriage seizes the reins and thereby causes the carriage to be overturned and its occupants are injured, they are not to lose their remedy by reason of the foolish act of the lady. The original cause of the accident was the misuse of the steam roller. We think these grounds are plain and intelligible and are consistent with the evidence. I think for myself that there is abundant evidence that the defendant Company knew that this machine was out of order. The learned judge at the trial points out to the jury that the man who was in charge of the lift, and who is now in the employment of the defendant Company was not called and he commented on it strongly. Taking this into account I think the jury may have come to the conclusion that this accident arose from some defect in the lift of which the defendant knew. I think there is a third ground. The jury may have thought that the defendant company had not explained the accident which it was bound to explain. I think the jury may have on any one of these grounds found that the injury was caused by the negligence of the defendant. For these reasons we think that the motion should be dismissed with costs. WILLIAMS, J.-Without giving any opinion on many of the points presented to us in argument, I think this verdict may be sustained upon a plain intelligible ground, viz., that the plaintiff was invited by the defendant company to use this lift during the hours when this lift might be running, for the purpose of ascending to and descending from the apartments of the tenants. That being so the plaintiff was using the lift lawfully with the consent of the owner. The safety gear appears to be defective by reason of its being over sensitive. The lift appears to have got jammed on other occasions before the accident. That jamming of the lift brought the person under whose control the lift was, and the passengers in it, into a position of peril. That position was caused by the negligence of the defendant Company by reason of the lift not being in proper order, which the defendants knew. These persons were at liberty to do the best they could to release themselves from that position of peril. In endeavouring to escape from their perilous position the lift suddenly ascended and caused the accident. I think that, for that result which was brought about by the stopping of the lift, the defendant company is liable. I think, therefore, the verdict must be sus- awarded costs to the defendant. Solicitors, for appellant, Malleson, England and SUPREME COURT. Before Hood, J. PRESIDENT ETC., OF THE SHIRE OF MOORABBIN V. Feb. 5. Local Government Act 1891 (No. 1243) Sec. 129 A summons was issued by the President, Councillors The memorandum "Order for £45 5s. 3d. against the defendant only as owner of land described in certificate, Vol. 1631, No. 326,025. Costs to legal owners £3 3s. Od. to be added to the order." An order nisi to review this decision was obtained on the grounds :— 1. That the defendant was not rated for the said rates. 2. That the defendant was neither occupier nor owner of the land. 3. That other persons were occupiers primarily liable to be rated and should have been rated. 4. That the demand was bad. 5. That there was no evidence that the moneys were recoverable within the meaning of section 129 of Act No. 1,243. Section 129 of the Local Government Act 1891 (No. 1243), so far as is material, is as follows: 66 All moneys recoverable by the council of any municipality under any act from the owner of any property as such may be recovered by action or proceeding in any Court having jurisdiction, or in case such moneys are so recoverable, before justices, against any person appearing to be such owner of the legal estate in such property by instruments registered in the Office of Titles or the Office of the RegistrarGeneral irrespective of any trust equity of redemption contract of sale or other equity or of any unregistered interest; and if such owner of the legal estate does not admit that he is the owner of the property within the meaning of such Act and he is not proved to be such 4 owner to the satisfaction of the Court or justices, judgOment may be given or an order made against him as the owner of the property in question describing it so as to identify the same; and in such case unless the Court or justices otherwise order such owner of the legal estate shall be entitled to his costs as between solicitor and client as against the municipality, and the municipality may add such costs to the judgment by sale of such property or a sufficient part thereof, or order, and such judgment or order may be enforced £500 5 33 2 6 17 11 £45 5 3 At the hearing of the complaint before the Court of Petty Sessions, at Cheltenham, evidence was given that the arrears were for rates made in the years 1889 to 1893 inclusive, that a demand was made in July, ... ... ... ... £5 0 0 £43 11 2 2 It was further proved that the defendant was the mortgagee of the land in question, and was, as such, registered proprietor of the land, and that there was a deed of defeasance, but that the Society had neither taken possession of the land, nor taken any steps to determine the equity of redemption under the deed of defeasance which was in Messrs. Eddington, Johnson and Duncan. Prior to 1894 the persons rated in respect of the land were the mortgagors, but in the rate book for 1894, no name was entered in the column for the name of the person rated. The Court made an order against the defendant for the amount claimed, and Mr. Cussen for the complainant showed cause.—In section 129 of the Local Government Act 1891 the words "the owner of any property," where they first occur mean the owner of the legal estate in any property and refer to the same person who is further on described as 66 any person appearing to be such owner Then the terms of the legal estate in such property." "the owner of the property within the meaning of refer to the real owner such Act" and "such owner of the land, e.g., the owner of the equity of redemption The effect of the section in the case of a mortgage. then is that the council may sue the owner of the legal estate for rates but if it is shown that he is not the real owner the order of the justices will only be effective against the land. [HOOD, J. Would it not be necessary to show that the council has taken all the steps to recover against the real owner?] No. For the effect of that would be that the council would have to put itself in train for suing that real owner and then suddenly turn round and sue the owner of the legal estate. Mr. Hotchin for the defendant supported the order. HOOD, J. Section 129 is not an easy one to interpret, but the interpretation put on it by Mr. Cussen appears to me to be the correct one, namely, that a municipal council is entitled to recover money due for rates from the person entitled to the legal estate in the property; that is, they have to find out who is the legal owner and sue him for the money, and then, if in the course of the case there is no evidence that he is not the owner he must pay, but if it appears there is an equity of redemption outstanding in respect of the property the order of the justices is made not against that person, but against the land. However, it is not necessary to decide this case on that section, for the council appears to have blundered in their procedure, having claimed arrears of rates to which they are not entitled. The order will be absolute with costs. The defendant disputed that he was either the Solicitors, for complainants, Crisp Lewis & Hedder- owner or occupier of the land. The justices, however, wick; for respondent, Madden & Butler. Before Hood, J. MAYOR, &C., OF QUEENSCLIFF V. ROBINSON. Feb. 5. Local Government Act 1890 (No. 1112), s. 288-Rates -Demand for less than is due-Arrears not separated from rates. A written demand for payment of rates demanded payment of £24 88. 6d. for “a general rate of one shilling and sixpence in the pound." The proper amount due was £25 5s. 6d. made up of £4 14s. 6d. for the current rate and £20 11s for arrears. Held a good demand. Order to review. On the 4th December, 1894 at the Court of Petty Sessions, Queenscliff, a complaint was heard by which the Mayor, Councillors and Burgesses of the Borough of Queenscliff sought to recover from George Coleman Robinson £24 8s. 6d. for rates and arrears. The summons set out the following particulars :To general rate for the year 1894 on property of which you are the owner, situate at Point Lonsdale, Queenscliff Arrears ... ... £4 14 6 19 14 0 £24 8 6 At the hearing it appeared that a demand in writing had been sent to the defendant, of which the following is the material part:— "Take notice that I the Rate Collector, duly authorised in that behalf, hereby demand from you the undermentioned rates as now due by you to the Council of the Borough of Queenscliff on the abovenamed property, and unless the amount he paid within fourteen days from the service of this notice upon you proceed made an order for £24 8s. 6d. the amount claimed with £3 3s. Od. costs. The defendant obtained an order nisi to review this decision on the grounds : 1. That upon the hearing of such complaint there was no evidence of sufficient demand upon the defendant for payment of the rate sued for. 2. That there was no evidence that the said defendant was the owner or occupier of the land. Mr. Irvine, for the complainant shewed cause. 18 V.L.R. HOOD, J.-The defendant in this case was sued for rates, and an order was made against him for payment of the amount sued for. Being dissatisfied with the order he obtained an order nisi to review it on two grounds. The first ground was, (His Honour read the first ground.) The demand is made by a printed form, such as is ordinarily used. The objection taken is that the amount demanded £24 8s. 6d. is less than the amount due, and it is contended that because the amount demanded is too little, the demand is bad. I do not think that contention can be supported. Although the demand was for a smaller amount than was due, I think the justices might have made an order for the full amount due. But it is not necessary for me to go so far, for the justices disposed of the objection by making an order only for the amount demanded. I think the notice is perfectly good. It is misleading in this sense, that it does not say how much is demanded for the rate, and how much for arrears. But for the purpose of being a proper demand, I do not see how that matters. The other ground is, (His Honour read the second ground.) But it is sworn that he is the occupier, the rate book describes him as the owner, and a letter written by the defendant and put in evidence is clearly open to the interpretation that he is the owner, and contains the admission that he had previously paid rate. The order will be discharged with costs. Solicitors, for complainants, Davies and Campbell, for Harwood Son and Pincott, Geelong; for defendant, Strongman and Crouch. Before a'Beckett J. MCGREGOR V. CHRISTIE. December 11, 14. Customs and Excise Duties Act 1890 (No. 1082) s. 133-Still-Meaning of Possession of an entire still is not essential for a conviction under the Customs and Excise Duties Act 1890, s. 133. Evidence of possession of part of a distilling apparatus is sufficient. The appellant was on the 21st September 1894, convicted at the St. Kilda Petty Sessions, under the Customs and Excise Duties Act 1890, (No. 1082), s. 133, for having in his possession an unlicensed still. On appeal the conviction was affirmed by the Melbourne General Sessions subject to the determination of the Judges of the Supreme Court on the following SPECIAL STATEMENT OF FACTS. At the General Sessions of the Peace holden at Melbourne and commencing on the first day of October 1894, Dugald McGregor appealed against a conviction of justices dated the 21st day of September 1894, (a copy of which is hereunto annexed) whereby it appears that the said Dugald McGregor was convicted for that he the said Dugald McGregor did at Glen Eira Villa, Elwood Street, Elsternwick have in his possession an unlicensed still. The witnesses for the respondent testified to having searched the appellant's house at Elwood, and having found a still, "a copper still," and one of them deposed that immediately after the seizure, he saw the appellant and told him that he had just come from his house where they had found a still, and asked "To whom does it belong?" and that the appellant then replied. "The still belongs to me," and he admitted that he had no license for it. The vessel seized and for the possession of which the appellant was convicted was produced in Court. It is constructed of two ordinary boiling coppers, one of them being supported on a stand with bottom downwards, the other being placed over the first with the bottom upwards, the flange of each being soldered and fastened to the flange of the other. The whole forms a dome-shaped copper vessel. At the summit of the dome there is a hole with a screw on its edge. The appellant in his evidence stated that he had become possessed of the boilers at different times, and had soldered them together as seen, and that he had made a funnel thing to go on the top of the boiler, and of which he made a sketch. Exhibit No. 2. One of the witnesses for the respondent stated that the appellant had described this thing to him as being like in shape to a tobacco pipe. The appellant in his evidence confirmed that; to that funnel he put 2 feet 6 inches of galvanised iron piping, and 3 or 4 feet of hose. He stated that he constructed the apparatus for the purpose of steaming carcases and scalding pigs. He said that the hose went into a barrel and he covered the barrel up close with bags. In the barrel he put the carcase of a horse or bullock to be boiled in water and the steam was brought into the barrel, and that for scalding pigs he put water into the cask and with the steam heated the water in the cask with which to scald the pigs. The steam coming from that boiler would boil about three times as much water as would go into the boiler itself. William Allison Ramsay, a coppersmith and maker of stills, stated that the vessel produced in Court was not a still but that it could be safely used as the boiler of a still if there was a helm and worm attached to it or any other form of condenser. The This witness also said that he would not make that thing without the authority, of the Customs. At the bottom of the vessel some debris was found which contained some decayed barley, some of the grains of which had sprouted. On analysis the debris afforded a small quantity of grape sugar. This was stated to be produced in the process of distillation but also in the germination of barley and in other ways. appellant said that he had seen his man Fitzgibbon boiling barley in the vessel on one occasion in June. The respondent's witnesses also called the tobacco pipe shaped apparatus a still head. Mr. Hake said that "I should call that apparatus a still," alluding to the vessel in Court. It was insisted on behalf of the appellant.-1st. That there was no proof that the vessel had been used for the purpose of distillation 2nd. That it was not "a still" but only a boiler, a still" meaning the complete apparatus; 3rd. That the vessel was not a "utensil for distilling" within the meaning of the 133rd section of the Customs and Excise Duties Act 1890 and as it was not "a still or a still head or worm no offence against the provisions of that section had been proved. I confirmed the conviction and dismissed the appeal. On behalf of the appellant I was then requested to state the facts specially for the determination of the Supreme Court thereon under the 139th section of the Justices Act 1890. The question for the determination of their Honors the Judges of the Supreme Court is :Was the appellant properly convicted? Mr. R. W. Smith for the appellant. Mr. Walsh, Q.C., for the respondent. : ; Cur. adv. vult. A'BECKETT, J. In this case the accused was convicted under section 133 of the Customs and Excise Duties Act 1890 of having in his possession an unlicensed still. Two boilers soldered together with an aperture at the top with which a pipe could be screwed were found in his possession and the vessel so formed could be used in the process of distillation. This vessel, if connected with the other apparatus necessary for distillation, would be correctly designated as the "still," the "still" being the name given to that part of a distilling apparatus which is used as this vessel would be used in the process of distillation. But it was contended for the accused that what was found in |