paying it.

At the trial before Madden C.J., sitting without a jury, it appeared that the petitioner was classified as an officer of the second class of the Public Service, and that in January 1885, his salary under the Act was fixed at £570 per annum. Until July 1886, the monthly pay-sheets showed the petitioner's salary at the rate of £570 a year, and a deduction at the rate of £81 a year for rent. After that date the salary was shown as £486, being the amount after the rent was deducted. Immediately this alteration in the form of the pay-sheets was made the petitioner wrote to the Postmaster-General, and received a reply that his salary was still £570 a year. The salary voted annually by the Appropriation Act was £486. The petitioner retired from the service in June 1894, and under the Act he was then entitled to an annual allowance amounting to 38-60ths of the annual salary received by him during the three years preceding his retirement. The Public Service Board and the Postmaster-General contended that the superannuation allowance should be calculated or computed upon the amount of pecuniary emoluments voted by Parliament and actually paid to the petitioner and received by him during the three years preceding his retirement, and that the amount so paid and received by him was only £186. The case for the petitioner was that his salary was £570, as fixed under the Act, and that the deduction for rent did not affect his right to receive retiring allowance calculated upon the full amount.

Mr. Higgins and Mr. Piggott for the petitioner.
Mr. Box for the Crown.

MADDEN, C.J.: The point raised is one which I am prepared to deal with very quickly. Section 24 of the Public Service Act 1890 says that "the Governor in Council may upon the recommendation of the Board, from time to time. . ... fix the amount of salary to be paid to an officer. . . and such'sum shall be the salary attached to such office without annual increment." Section 108 then says that in computing superannuation or retiring allowance the word "salary" shall be taken to mean "all the pecuniary emoluments received by any officer. . . . . . from the Crown in his capacity as such officer whether as salary or as allowances," &c. If the word "received" in this section is read in its strict primary sense, the petitioner's "salary" is no doubt confined to the amount of money actually paid to him, but I am quite snre that the Legislature had no such intention, and that "received" is to be read "to be received." The amount of the salary is fixed by the Governor-in-Council under the Public Service Act, and it would never do to say that the salary was to be whatever Parliament chose to vote. Supposing that through some financial exigency Parliament was able to vote only 10 per cent. of the salary, did the Legislature mean that the retiring allow

ance

should be calculated on the sum so paid? Surely not. If so, no officer would ever be able to say what his rights were, or what retiring allowance he might expect. If Parliament had chosen to reduce the salary to £486 there would be nothing more to be said, but in my opinion neither in word nor intention has Par

liament done anything of the kind. Judgment will therefore be for the petitioner with costs, with a declaration that he is entitled to superannuation allowance at the rate of £361 per annum, being 38-60ths of £570.

Solicitors, for petitioner, Briggs and Son; for Crown, Guinness, Crown Solicitor.

Before Hood, J.

TAYLOR V. TAYLOR.

Feb. 5.

Marriage Act 1890 (No. 1166), s. 74 (a)-DivorceDesertion-Reality of desertion - Acquiescence of petitioner in desertion by respondent--Delay. Desertion is the deliberately and voluntarily bringing to an end an existing state of cohabitation against the will of the other party. It is not desertion if the petitioner consents to it, connives at it, or in any way assists it, and the petitioner must show not only desertion at the moment, but that the desertion has been continuous for three years and upwards.

In a petition by a husband for divorce, on the ground of desertion since February, 1888, it appeared that his wife had left him without the slighest reason, and that he made no inquiry to find out why she went or whither she had gone. He had no cause of complaint against her nor she against him. The wife afterwards wrote an affectionate letter to her husband's daughter by a former marriage, in which she asked kindly after their welfare The petitioner knew of that letter, but made no attempt to find his wife, or induce her to return.

Held, that the petitioner had connived at his wife absence, that desertion had not been proved and that a decree must be refused.

Held, further, that the suit would have been dismissed on the ground of delay.

Langlands v. Langlands (ante p. 44) distinguished. Petition by Richard Taylor, for the dissolution of his marriage with Emma Christina Taylor, on the ground of her desertion since February, 1888. The marriage took place at St. Arnaud, on September, 18, 1880; there were no children. The facts of the case sufficiently appear from the judgment.

Mr. W. T. C. Kelly for the petitioner.

The petitioner is entitled to a decree. In Langlands v. Langlands, ante, p. 44, the Full Court decided, reversing the decision of Madden, C.J., that if a husband was shown deliberately, and without just cause or excuse, to have left his wife for the statutory period, desertion was established; and the fact that the wife had no real desire for the husband to return to her was not such cause or excuse, and did not affect the reality of the desertion. [HOOD, J.-I do not think that that decision covers the present case. e.]

No appearance for the respondent. HOOD J. —An Act of Parliament which is paramount in these matters, throws the very unpleasant duty on the Court in divorce cases of being itself satisfied on the facts alleged. The effect of that is in these cases practically to compel the judge to make

inquiries on his own account to try and find out what the true facts are; then with the assistance of counsel on one side, and what he can find out for himself, he has to be satisfied on the facts alleged. This petition is based on the facts alleged of desertion for a period of three years or upwards. Now desertion, as I understand it, is the deliberately and voluntarily bringing to an end an existing state of co-habitation against the will of the other party. It is not desertion of the wife by the husband, or of the husband by the wife, if the one who remains consents to it, connives at it, or in any way assists it; and the petitioner must not only show desertion at the moment, but must show that he or she has been continuously deserted for three years or upwards. The facts here are stated in the barest possible fashion. The petitioner gets into the box, and says that he has been married some years, and that without the slightest reason his wife left her home. Assuming him to be a dutiful husband, he should have made some search or inquiries in order to find out why she went and where she had gone. Instead of that, he puts his hands into his pockets, and apparently thanked heaven that she had gone, although as he says he had no cause of complaint against her or she against him. In addition to that, the wife afterwards writes an affectionate letter to the daughter, asking for information about the family in the most kindly way. The husband knows of that and yet he never makes any attempt to find her or to get her to come back. In my opinion, not to use the word in a harsh sense, he was conniving at her absence, and was agreeable to her being away. I am therefore not satisfied that she deserted him in the manner contemplated by the act, and I shall refuse the decree on that ground. I should refuse it also on the ground of delay. I don't believe the petitioner's statement as to the cause of the delay. He says he had to wait until he could get money, but in his affidavit he said that he had no money, and he sues in formá pauperis. On both these grounds I dismiss the petition. Proctor for petitioner W. T. C. Kelly.

IN CHAMBERS.

Before Hood, J.

Sheriff's interpleader.

The claimant claimed the goods seized by the sheriff in a lien on crops, which was in the following form: LIEN ON CROPS.

I, John Egalton Baker of Nulla will in the Colony of Victoria farmer, in consideration of £182 0s. Od. and further advances bona fide value, which I admit to have received in goods from Joseph Edward Cutts of Wycheproof in the Colony of Victoria merchant do hereby give the said Joseph Edward Cutts a preferable lien (to the extent of the said sum and the interest and commission hereinafter mentioned) on the wheat and hay now growing and not harvested on my farm at Nulla will containing 1015 acres and being allotments F. and G. of Parish of Nullawill County Tatchera. It is agreed that the said Joseph Edward Cutts shall be entitled to interest at the rate of £10 Os. Od per centum per annum from the 1st day of June 1894 on the sum of £151 12s. 6d. and to a commission on that the said crops shall be harvested by me or at my expense such sum at the rate of- per centum And it is further agreed and shall be delivered at Wycheproof or the nearest railway station on the Kaniva line to the order of the said Joseph Edward Cutts and the said Joseph Edward Cutts may sell the said wheat and hay so delivered and retain the expenses of ceeds of sale. sale and the moneys due to him on this security from the proDated 10th day of July 1894.

Signed--John Egalton Baker (Lienor). Witness-Albert E. Cutts.

The facts and arguments appear sufficiently from the jndgment.

Mr. Geoghegan for the sheriff..

Mr. MacHugh for the execution creditor.
Mr. Irvine for the claimant.

HIS HONOR said: I am satisfied that the transaction in this case was a bona fide one. The arrangement was that Baker was to give a lien over his ensuing crops on the condition that Cutts carried him on till the harvest. It is true that it included a past debt in addition, but it has been decided that this in itself would not make the transaction illegal, or the document itself void. Then there comes a difficulty as to the form in which the consideration was stated. Section 158 of the Instruments Act 1890 requires that the agreement must be put into writing in the form of schedule 9, and this appears to contemplate money transactions, or transactions in chattels, the value of which had been determined; and this is indicated also by the very name of a lien. On the other hand, a very strict reading of these documents would undoubtedly destroy one of the most beneficial objects for which they are intended, and used namely, the advance of goods to a farmer while his crop is growing, because in cases of that sort it would be impossible for either side to fix any money value on the goods to be supplied. I have some doubt about the point, but on the whole I think I should give the construction to the document that will support it and not destroy it and that it be read to be in consideration of an agreement to give further advances, and that the grantor gave a lien to the extent of those advances when ascertained. That being so, I hold that the lien is good, and allow the claim, but without costs.

may

Solicitors, for sheriff, Geoghegan and Perry; for execution creditor, E. W. Klingender; for claimant, Wigmore.

Before Hood J.

THE ATTORNEY-GENERAL AT THE RELATION OF WILLIAM REED; AND THE SAID WILLIAM REED ON BEHALF OF HIMSELF AND THE REST OF THE RATEPAYERS OF THE BOROUGH OF FLEMINGTON AND KENSINGTON V. BLACKWELL AND OTHERS.

26 February. Rules of Supreme Court 1884, Order XIX, r. 27Local Government Act 1890, sec. 344-General demurrer. A general demurrer is bad pleading. Sweetnam v. Jacobs, 13 A.L.T. 169 explained. Application on behalf of the plaintiff that paragraphs 11 and 12 of the defence be struck out on the ground that they tend to prejudice and embarrass the fair trial of the action. The statement of claim was as follows:

:

1. At all times material to this action, the plaintiff William Reed was and is a ratepayer of the Borough of Flemington and Kensington, and at all times material to this action, and more especially during the years 1891 and 1892, all the defendants were councillors of the said borough and acted in such capacity.

2. In or about the month of April 1890, the council of the said borough caused notices to be published in the Government Gazette and in the West Bourke Times of their intention to borrow the sum of £20,000 for the construction of permanent works and undertakings within the said borough on the credit of the Mayor Councillors and Burgesses of the said borough; such notices contained inter alia, a detailed statement of the said permanent works and undertakings in respect of the construction of which it was proposed to expend the said sum of £20,000, together with an estimate of the cost of each item in accordance with the provisions in that behalf contained in sec. 315 of the Local Government Act 1874.

3. During the months of April and May 1890, the said council caused to be exhibited for inspection at the Council Chambers of the said council, a detailed statement of the said permanent works and undertakings together with an estimate of the costs of each item in accordance with the provisions in that behalf contained in sec. 314 of the Local Government Act

1874.

4. On or about the 7th July 1890, the said council made a special order for borrowing the said sum of £20,000 on the credit of the Mayor Councillors and Burgesses of the said borough for the purpose of constructing the said permanent works and undertakings referred to in paragraphs 2 and 3 hereof, and on or about the 14th October 1890, the said sum of £20,000 hereinafter called loan No. 3, was borrowed in accordance with the provisions in that behalf contained in Part XI of the Local Government Act 1890.

5. At a meeting of the said council held on or about the 2nd June 1891, at which meeting all the defendants were present, a resolution was passed, in favor of which resolution all the defendants voted, whereby it was resolved that the defendants Millar, Dalglish and Raisbeck, be appointed a sub-committee to treat for the purchase of certain lands, hereinafter more particularly described, from one J. P. Glass the proprietor thereof.

6. At a meeting of the said council held on or about the 15th July 1891, at which meeting all the defendants were present, a resolution was passed in favor of which resolution all the defendants voted, whereby it was resolved that the said sub-committee be empowered to purchase the said land at a cost not exceeding £2,250, payable as follows, £500 in cash, and the balance in two instalments, and should be further empowered to pay the purchase money out of the proceeds of loan No. 3, and the said sub-committee did thereupon complete the said purchase, and did pay to the said Glass the sum of £500 out of the proceeds of loan No. 3.

7. At a meeting of the said council held on or about the 28th July 1891, at which meeting all the defendants were

present, a resolution was passed, in favor of which resolution all the defendants voted, whereby it was resolved that the payment by the said sub-committee of the said sum of £500, by way of deposit for the purchase of the said lands out of the proceeds of loan No. 3 be confirmed.

8. At a meeting of the said council held on or about the 4th February 1892, at which meeting all the defendants were present, a resolution was passed, in favor of which resolution all the defendants voted, whereby it was resolved that the sum of £901 5s. being the first instalment due in respect of the said purchase referred to in paragraph 6 hereof be paid to the said Glass out of the proceeds of loan No. 3, and which instalment was accordingly so paid.

a

9. At a meeting of the said council held on or about the 28th June 1892, at which meeting all the defendants were present, resolution was passed, in favor of which resolution all the £927 10s. Od., being the second and last instalment due in redefendants voted, whereby it was resolved that the sum of spect of the said purchase referred to in paragraph 6 hereof, be paid to the said Glass out of the 'proceeds of Loan No. 3 and such instalment was accordingly so paid.

10. By instrument of transfer dated the 8th July 1892 the said Glass transferred to the Mayor, Councillors and Burgesses of the said borough the said lands above referred to, and being [land described] for the consideration in the said instrument of transfer mentioned.

11. At a meeting of the said council held on or about the 12th July 1892. at which meeting all the defendants were present, a resolution was passed, in favor of which resolution all the defendants voted, whereby it was resolved that the sum of £11, being the duty payable to the Crown in respect of the transfer in paragraph 10 mentioned be paid out of the proceeds of Loan No. 3, and such sum was accordingly so paid. 12. The said purchase of the said lands was in no way comprised in or connected with the said permanent works and undertakings referred to in paragraphs 2, 3 and 4 hereof, and the plaintiffs will contend that the defendants in so paying the said sums of £500, £901 5s. Od., £927 10s Od. and £ll out of the proceeds of Loan No. 3 have been guilty of a breach of trust.

The plaintiffs claim

1. A declaration that, on the facts stated above, the defendants are guilty of a breach of trust.

2. An order that the defendants jointly and severally do replace to the credit of Loan No. 3 the said several sums with interest thereon at the rate of 8 per cent. from the dates of the payment of each of the said sums respectively.

The paragraphs of the defence which were objected to were as follow:

statement of claim which entitles Her Majesty's Attorney11. They will object that there are no facts disclosed in the the relation of the above-named plaintiff William Reed. General to maintain this suit for the relief thereby sought at

12. They will object that there are no facts disclosed in the statement of claim which entitles the plaintiff William Recd self and the above-named ratepayers. to maintain this action for the relief sought on behalf of him

Mr. MacHugh in support.-Paragraphs 11 and 12 of the defence are really general demurrers and are consequently bad pleading. In Gibbs v. Howden, 16 V.L.R. 269, Webb, J., held that a general demurrer was not allowed by the present rules of pleading; and that the point of law relied on must be specifically stated. Your Honor in Sweetnam v. Jacobs, 13 A.IT. 169 followed that decision.

HIS HONOR. By the report of that case I am made to say "I do not think it could be good pleading either before or after the Judicature Act." What I intended to say was "I do not think such a general demurrer could &c." of course a general demurrer was permissible under the old system but not in the form used in that

case.

Mr. Mitchell.-This is a novel action and I do not know how the defendants could deal with the allegations in any other way than they have done. We contend that the Attorney-General ought not to be allowed to sue in a case like this, and the defendants ought not to be asked to negative every allegation set up by the plaintiffs. Section 344 of the Local Government Act 1890, imposes on the council a duty to spend moneys in a certain way. I have been unable to find any authority for making the council repay moneys spent out of a loan fund which it would have a perfect right to do if it had been spent out of the municipal fund. We do not state that there has been no breach of trust, we merely take the objection as to parties. Everything has been done and the plaintiffs do not seek to restrain the defendants from doing anything.

HIS HONOR Said. I am very much puzzled over this application. I think however that both paragraphs offend against the rules. I think that paragraph 11 might be amended by stating that "assuming there has been a breach of trust the Attorney-General cannot maintain this action." I think the pleading would offend against the rule with regard to prolixity if more were stated. The 12th paragraph is ambiguous and leaves it in doubt whether the plaintiff William Reed, is entitled to bring the action in this form, or whether he cannot bring it in any form. It ought therefore to be amended. I order that the defendants amend the defence as they may be advised within 7 days. The defendants to pay the plaintiffs' costs of this application which I fix at £3 3s. I certify for counsel. Solicitors, for plaintiffs Madden and Drake; for defendants Gillott and Bates.

Before Hood, J.

GOTTOR V. SHEPPARD.

27th February. Rules of Supreme Court 1884, Order XLII., r. 32Applications under this rule should be made on summons and not exparte.

Application on behalf of the execution creditor under Order XLII. r. 32 for an order for the examination of the judgment debtor as to debts &c. owing to him. The application was made exparte.

HIS HONOR.-Ought not this application to be made on summons?

Mr. Hobday in support-I think the practice has been to make it exparte.

HIS HONOR: In Chitty's Archbold's Practice 14th ed. at page 791 I find it laid down that "the application should be made to a Master at Chambers on a summons." I shall therefore refuse the application. Solicitor for the execution creditor, Hobday.

OF CASES

2,

appeal from the master under sec. 99 of the Administration and Probate Act 1890, it was ordered that the appeal be put in the list before a judge without a jury, and that it be heard in the ordinary way. Motion on behalf of the personal representatives of Black deceased for directions as to an appeal instituted by them for the determination of the Master under sec. 99 of the Administration and Probate Act 1890.

Mr. Weigall in support.-There is a wish to appeal from the determination of the Master to the Supreme Court. The Act, however, provides no machinery for the carrying on and conduct of such an appeal. Where no procedure is provided, it is the duty of the Court to find out a mode of procedure by which it may discharge its duty by exercising its jurisdiction, In the Will of Todd, 13 V.L.R., 185. It is now asked that the Court take such steps as will enable the appeal to be heard. We wish the action to be listed in the ordinary way, and a direction be given that both sides be at liberty to substantiate their position by viva voce evidence. Mr. Box to oppose.--This is an appeal from the Master; and if the appellant were permitted to adduce other evidence than was before the Master he might mend his hand by making out a totally different case, and mulct the Master in costs. An appeal should be heard on the evidence then before the Court, and if a party be allowed to adduce fresh evidence it ceases to be an appeal.

Mr. Weigall in reply. It is contemplated by the section that the appeal may be tried before a jury. This seems to show that the evidence should be given viva voce, for it would be absurd to try an appeal before a jury on affidavits.

HIS HONOR Said: I think the most practical order I can make is to order that the appeal be put in the list before a judge without a jury, and that it be heard in the ordinary way. Such an order leaves the judge who hears the appeal at liberty to decide whether the evidence should be taken viva voce, or on the affidavits that have been filed, and I do not think I should make an order that might in any way tend to limit such liberty. I order that the appeal be put in the list to be heard in the ordinary way, and that the costs of this motion be costs in the appeal.

Solicitors, for appellant, Blake and Riggall; for respondent, Crown Solicitor.

SUPREME COURT.

Before Hood, J.

PRESIDENT ETC. OF BENALLA V. HUGhen.

Feb. 6, 13.

Local Government Act 1891 (No. 1243) s. 136-Rates -Sale of property before rate struck-Recovery of rate from vendor.

The effect of sec. 136 of the Local Government Act 1891 is that a land owner does not become freed from liability to a municipality merely by selling or conveying his property, but that he remains answerable for all moneys and other liabilities, including rates, which may accrue due by, or be imposed upon the