:

assignment the case of Burnett v. Lynch, 5 B. & C., 589, is an authority for the proposition that the trustees were under an obligation, while assignees, to pay the rent in respect of the property. Abbott, C.J., in that case, when dealing with the question says at pp. 601-2" But he accepted the assignment subject to the performance of the covenants, and we are first to consider whether any action will lie against him. If we should hold that no action will lie, this consequence will follow, that a man having taken an estate from another subject to the payment of rent, and the performance of the covenants, and having thereby induced an understanding in that other that he would pay the rent and perform the covenants, will be allowed to cast that burden upon the other person. Reason and common sense show that that never could be intended and if the law of England allowed any such consequence to follow, in that case it would cease to be a law of reason." It was argued in the present case that, as there had been a transfer of the legal estate, that reason would not apply. I think the principle in the case cited applies whether the legal estate has passed or not. I think that as the trustees took this property, together with the assignor's other property, it must be implied that they were going to perform all the covenants in the lease. In Saunders v. Benson, 4 Beav. 350, a somewhat similar question arose. The defendant in that case was not assignee at law of the estate; the beneficial interest had passed to him but not the legal estate and the question arose as to his liability on the covenants in the lease. Langdale, M.R., at page 356 there says: "The defendant had, I think, all such beneficial interest in the estate as should be acquired under the lease; and having that beneficial interest I think he could not be exempted from the duties or burthens which appear to me to be annexed to the beneficial interest "; that language applies here. The learned judge then continues "but as he never executed the lease, or any covenants to perform the covenants contained in the lease, it does not appear to me that his obligation was in the nature of covenant or special contract. I think that the plaintiffs were entitled to require Mr. Benson to perform the duties attached to his beneficial interest in the lease, but there being no covenant, the remedy of the plaintiffs had no higher or stronger foundation than simple contract, so that the obligation was one of simple contract. think in the present case the obligation was no higher than one of simple contract. I therefore propose in answer to the first question to say that the defendants were justified in retaining moneys to pay the rent as long as they remained assignees and were unable to assign the lease or to procure an assignment or so long as it was reasonable to retain it for disposing of the property assigned. The next question I am asked is "whether the defendants are justified in refusing to assign or to transfer to one Samuel Boyle the said lease or the interest of the defendants therein (if any) and if not whether the defendants are entitled to be credited with payments of any such rent which accrued due since the date of the offer of the said S. Boyle to accept such assignment or transfer?" It is

I

admitted Samuel Boyle is a man of straw, and it was suggested that the trustees should assign this lease to him for the purpose of getting rid of their liability thereon. The obligation of the assignee to perform the covenants in the lease only exists as long as he retains the beneficial interest in it. I do not think the contract goes any further. I do not think that he agrees never to part with the beneficial interest, or to continue to discharge the onerous covenants of the lease. I think, in the discharge of the trustees' duties to the creditors, they were under the obligation to get rid of the lease at the first reasonable opportunity. I do not find anything in the materials to show when that was. If, after the trustees had disposed of the stock-in-trade on the premises, they were then unable to assign the lease of the premises to a substantial person, I think they ought then to have disposed of it to Boyle to relieve themselves from further liability. I direct the costs of all parties to be paid out of the estate. The costs of the trustees to be allowed as between solicitor and client. I certify for counsel. Solicitors, for plaintiffs Malleson, England and Stewart; for defendants Braham and Pirani.

PRACTICE COURT.

Before Hodges J.

RE PRESIDENT &C. OF THE Shire of MoorABBIN ; EX PARTE MCLORINAN.

11th March. Local Goverment Act 1890 sec. 191 (XIX)—By-law— Carriage of nightsoil through the shire-By-law unreasonable-A municapility made a by-law by which they prohibited any persons from carting any nightsoil into or within the boundaries of the shire, without the written consent of the Council, except between the hours of 10 p.m. and 2 a.m. Held, that such bylaw was unreasonable; and further that if the hours had been fixed at between 12 p.m. and 4 a.m. such a restriction might be considered a reasonable one. Rule nisi calling on the Shire of Moorabbin to show cause why by-law No. 16, should not be quashed on the ground that such by-law is illegal and ultra vires. The by-law, which was gazetted in the Government Gazette of the 13th July 1894, was as follows:SHIRE OF MOORABBIN. By-law No. 16.

:

A by-law of the Shire of Moorabbin, made under the provisions of the Local Government Act 1890, and numbered 16, for regulating traffic.

In pursuance of the powers conferred by the Local Government Act 1890, the President, Councillors, and Ratepayers of

the Shire of Moorabbin order as follows:

No person shall cart or carry with carts drawn by horses or otherwise into or within the boundaries of the Shire of Moorabbin, without the written consent of the council, signed by the municipal clerk, any nightsoil, except between the hours of ten o'clock post meridian and two o'clock ante

meridian.

Every person guilty of a breach of the foregoing by-law shall be liable to a penalty not exceeding ten pounds (£10) nor less than three pounds (£3).

It appeared from the affidavits filed in support,

that the applicant McLorinan was the contractor for
the removal of nightsoil from the City of South Mel-
bourne; that it was necessary to the carrying out of
the contract to carry the nightsoil through the Shire
of Moorabbin to a depôt outside the shire, that
McLorinan by his contract had to empty and clean
the pans in the City of South Melbourne, between the
hours of 11 p.m. and 5 a.m.; that the nearest point of
the shire to the nearest point of the City of South
Melbourne is about 6 miles; that from that point to
the furthest point of the City of South Melbourne is
about 3 miles, and the width of the shire along the
shortest or most convenient line of road for carting
nightsoil is about 4 miles; the night-carts cannot
travel above the rate of 3 miles an hour, and it is im-
possible to have the night-carts through the shire
before 2 a.m.; and that the nightsoil emits no offen-
sive smell and does not create a nuisance in any respect.
Informations had been laid by the officer of the shire
against carters in the employ of the applicant for
carting nightsoil within prohibited hours, and all his
carters would be liable, and the applicant would be
unable to fulfil his contract. The population of the
City of South Melbourne is about 33,000. In the
affidavits filed on behalf of the shire it was stated
that if the applicant started to empty the pans at
9.30 p.m., and employed a double shift of men he
would have plenty of time to get through the shire
before 2 a.m.
There was nothing to prevent the
applicant from sending the nightsoil through the Shire
of Oakleigh to the Shire of Dandenong without enter-
ing the Shire of Moorabbin and without travelling any
further and that there were no by-laws in force in the
Shires of Oakleigh and Boroondara forbidding or
prohibiting the applicant from sending the nightsoil
through them.

Mr. Mitchell moved the rule absolute.
Mr. Bryant showed cause.

The following cases were cited in argument :-Ex parte Stafford, 15 A.L.T., 220; Ex parte Warick, 6 A.L.T., 209; and Ex parte Steel, 19 V.L.R., 94.

HIS HONOR Said :-I think this by-law should be taken to be made under section 191 (xIx.) of the Local Government Act 1890, as a by-law for regulating traffic, and very likely, under the circumstances in which the shire found itself, it was a proper by-law for it to endeavour to make. It was decided, however, by the Full Court in Ex parte Stafford, 15 A.L.T., 220, that the principle which should guide a municipality in making by-laws was that they should allow the largest amount of user of the roads consistent with the safety and convenience of the inhabitants of the municipality. In that case Madden, C J., says at p. 221: "The first portion of it appears to be framed not to allow the exercise of the common law right of using the roads to the fullest extent consistent with public safety, but to restrict those rights to the narrowest point consistent with a mere user of the road." In the present case I think there has been a restriction to the using of the roads to the narrowest point, and that the times taken, viz., from 10 p.m. to 2 a.m show really an intention to prevent anybody from taking nightsoil

through the shire, as it would be extremely unlikely that any soil could be removed from another municipality, and taken through the shire during the hours permitted for that purpose. The first portion of the by-law is perfectly useless. The shire seems to me to have considered how small an amount of time they could allow for the purpose, instead of considering how large an amount of time they could allow consistent with public safety. I think if they had fixed the hours between 12 p.m. and 4 a.m., that might be considered a reasonable restriction for preventing other persons from bringing nightsoil through the shire. I shall make the rule absolute with costs to be taxed.

Solicitors, for the applicant, Gillott and Bates; for the respondent, Goldsmith and Sharp.

SITTINGS IN BANCO.

Before Williams, Holroyd and Hood J.J.

DALRYMPLE V. THE PRINCE OF WALES AND BONSHAW UNITED COMPANY NO-LIABILITY. March 12.

Companies Act 1890, (No. 1074), sec. 243-Mining company-Forfeiture of shares-Time limited for bringing action-Ground of forfeiture - General meeting-"Seven days notice."

Section 243 of the Companies Act 1890, applies to all actions in respect of shares alleged to have been forfeited, no matter upon what ground the alleged forfeiture is said to be invalid.

Several persons acted as directors of a mining company, but were disqualified from holding the position. Acting as directors they purported to make a call on all the shares. A who held a number of shares did not pay the call, and the shares were sold as having become forfeited. In an action brought by A in respect of the shares, which was not begun until six months after the day appointed for the sale;

Held, that the action was barred by section 243 of the Companies Act 1890.

The Articles of association of the company required that every general meeting should be convened by the manager by a seven days notice inserted twice in one newspaper published at B. Held that both insertions must take place at least seven days before the meeting.

Appeal from a judgment of Madden C.J.

The plaintiffs in this case, William Dalrymple and A. Rutter Clarke, were prior to 17th January 1893, respectively the beneficial owner and the registered holder of 1,000 shares in the Prince of Wales and Bonshaw United Coy., No-Liability, a gold mining company. By the rules and regulations of the company, it was provided that the company should be under the management of a Board of Directors consisting of five shareholders who should hold and continue to be the holders of and registered in the books of the company for at least 100 shares. On the 21st October 1892, the persons who then acted as directors purported to make a call, the 52nd, on all shares in the company

in distress, and now wishes to come into it again when it is in a prosperous state through the exertion of those whom he had deserted. He had been afforded every chance of retaining his shares. The manager had gone out of his way and besides the usual notices had sent him telegrams and letters about the sale and even after the forfeiture had offered to reinstate the shares. This however is little to the purpose. The section I have referred to is sec. 243 of the Companies Act. It is as follows: (His Honor read the section.) I think the section does not refer to adjournments, but only to the day of sale first appointed. It is now contended that this section only applies where directors appoint a day of sale and are qualified to make it. I do not think this. The Legislature undoubtedly does not mean this. I think the intention of the Legislature was to exclude all actions unless brought within six months from the day of sale. My reading is "no action suit or other proceeding in respect of any shares alleged to have been illegally forfeited shall be brought by any person unless such action be commenced within six months from the day first appointed for the sale. I consider the section means the day appointed de facto for the sale. It would not make the plaintiffs' case better whether the day was appointed by properly constituted directors or not. I therefore think that although the plaintiff must have succeeded had he come in time he has come too late and must lose. I therefore give judgment for the defendant with costs to be taxed."

From this judgment the plaintiffs appealed. Section 243 of the Companies Act 1890 is as follows::

243. In respect of any share in any company registered under the Mining Companies Act 1871 or this part of this Act alleged to have been or to be forfeited after the passing of the Forfeiture of Mining Shares Act 1883 under the provisions of the said first mentioned Act or of this part of this Act no action, suit or other proceeding shall be brought or had against any such company by any person claiming to be the owner or otherwise entitled to or interested in such share unless such action, suit or other proceeding be commenced within six months from the day appointed

for the sale of such share."

Mr. Finlayson, Mr. Topp and Mr. Wanliss for the appellants. As to the meaning of section 243, if the word had been "forfeited" instead of "alleged to be forfeited," there would have been no difficulty. It would then have been necessary to prove an actual forfeiture. The meaning of the word "alleged" is asserted as being capable of proof. [Hoop, J.: Does it mean anything more than "said to be"?] Yes, for that might be hearsay. It is a matter for the Court to say whether there is any reasonable ground for saying that there has been a forfeiture. It is not sufficient for the directors to say there has been a forfeiture. [WILLIAMS, J.: You mean that there might be a capricious allegation to that effect by the directors.] In this case the directors must have known there was no legal call and consequently no forfeiture. [HOOD, J.: Is there anything to show they did not believe there

was a forfeiture?] They could not under the circumstances have believed it. The effect of sec. 309 (v.) is that before the directors appoint a day for the sale of shares, those shares must be forfeited, and there is no mention in that section of the words " alleged to be forfeited." [HOOD, J.: Would not the effect of that reading be to strike out section 243 altogether?] No. Section 243 is meant to apply where there has been a good forfeiture, but the sale has been made a little too soon, or the advertisement not inserted properly, or where some slip of that kind has been made. There was no day legally appointed for the sale of the shares. The directors are by sec. 211 of the Act entrusted with the management of the affairs of the company, of which appointing a day for the sale of forfeited shares is one, this power they cannot delegate to the legal manager. Section 208 practically prescribes all the duties of the manager. [HooD, J. That section seems not to give powers to the manager, but to be a protection to the public. HOLROYD, J.-The Act takes the manager to be a person who is to have the general management of the company. It says, he shall do certain things, but it does not affect to say what he shall not do.] The Act gives the directors the general management, and when there are no directors the powers of the manager cease.

Mr. Higgins and Mr. Weigall (Mr. Purves, Q.C., with them) for the respondents. The meaning of sec. 243, is that whenever a person says that his shares have not been forfeited he must bring his action to establish that within six months of the day purporting to have been appointed for sale, no matter on what ground the alleged forfeiture is said to be bad.

WILLIAMS J.-It is only necessary for us in this case to decide whether the jndgment of the learned Chief Justice, on the ground that the plaintiffs in this case were barred by sec. 243 of the Companies Act 1890, is correct or not. We think that his decision in that respect is sound—that the object of that section was to prevent the bringing of any suit or action against a mining company unless within the time limited in the section. We think that where the shares are alleged to have been improperly forfeited, no matter upon what ground, the person claiming to be the owner of them must bring his action within the time limited by the section. That is the view of the learned Chief Justice, and we think it is the correct one. We think it was the intention of the Legislature to shut out persons lying by and when the time suited them, bringing an action to set aside the forfeiture. It is not necessary to state whether we agree with the rest of the judgment, but there is one portion of it with which I think we ought to say we cannot concur, that is the portion in which the learned Chief Justice holds that as long as the first notice of a general meeting is inserted seven days before the date of that meeting, even though the second insertion does not take place until within those seven days, the general meeting is properly summoned. We cannot concur with that; we think the obvious meaning is that seven days shall elapse after the last insertion, in other words that the last insertion shall be outside the

Williams, Holroyd and Hood, JJ.

BRISTOW V. THE QUEEN.

March 13.

Public Service Act 1890, (No. 1133), ss. 24, 107, 108, 136-Act No. 160, s. 44-Public Officers' Retirement Act 1893, (No. 1329), s. 2 (2)--Public serviceSuperannuation allowance-Mode of computationPecuniary emoluments received"-Officer residing in Government building.

66

The

The petitioner was an officer in the Public Service appointed before the passing of the Act No. 710. In January 1885 his salary was fixed at £570 a year of which £486 was actually paid to him yearly, the balance of £84 being yearly deducted for rent under section 136 of the Public Service Act 1890. salary voted annually by the Appropriation Act was £486. In June 1894 the petitioner retired from the service under the provisions of the Public Officers' Retirement Act 1893 (No. 1329) s. 2 (2). In computing the superannuation allowance to which he was entitled under Act No. 160, 8. 44 :

Held, that the "pecuniary emoluments received" by him, within the meaning of the Public Service Act 1890, s, 108, were £570.

Appeal from judgment of Madden, C.J.

The facts of this case fnlly appear in the report, ante, p. 147.

Mr. Box and Mr. Duffy, for the appellant. The effect of sec. 108 of the Public Service Act 1890 is that the actual salary paid is to be the basis of the allowance. [HOLROYD, J.-Is not the rent a part of the salary?] No. [HOLROYD, J.-If A. who owes B. £1, buys from him goods of the value of 5s, and hands him 15s., does A. not pay B. £1?] No. A. pays 15s. and sets off the value of goods sold. [HOOD, J.-In an action by B. could not A. plead payment?] It is submitted A. could not. Money deducted by Act of Parliament from salary is not a payment of that portion deducted.

Mr. Higgins and Mr. Pigott, for the respondents, were not called on.

WILLIAMS, J., delivered the judgment of the Court. This seems a tolerably plain case. This gentleman, an officer of the public service received a salary of £570 a year, and was allowed certain quarters which he used for the purpose of a residence, and that being so under section 136 of the Public Service Act 1890, a fair and reasonable amount as rent was fixed at £84 per annum and was deducted from the £570. Those being the facts it is contended that the salary which the petitioner received should be taken as £486 for the purpose of computing the amount of superannuation allowance payable to him. We think that contention cannot be entertained for a moment. The petitioner's salary was fixed at £570, and when the Public Service Board under section 136, deduct £84 as rent for the quarters, and instead of paying £570, pay £570 less

£570, and he paid them back £84. We think the decision of the learned Chief Justice was right, and we, therefore, dismiss this appeal with costs.

:

Solicitors for the appellant, Guinness, Crown Solicitor; for the respondent, Walter Briggs & Son'

Before Williams, Holroyd and Hood J.J.

MATTINGLEY V. THE QUEEN.

March 15, 18.

Public Service Act 1890, (No. 1133), ss. 27, 121-Act No. 160, s. 27-Public Service-Education department-Reduction of number of officers in department -Certificate of Public Service Board-Order in Council-Notice to officer affected-Wrongful dismissai-Damages.

The provisions of the Public Service Act 1890, (No. 1133), ss. 27, 121, extend to officers in the Education department.

An officer in the Civil Service holds his office at the will and pleasure of Her Majesty, and the expression of that will and pleasure may terminate the office without notice being given to the officer affected.

A certificate of the Public Service Board under sec. 121 of the Public Service Act 1890, approved by the Governor becomes a public document and is thereby published to the world.

The petitioner was a state school teacher in the Education department. On the 28th February 1894, she was informed by the Minister of Public Instruction that her services would not be required after the 31st March 1894. On the 1st May 1894, the Public Service Board passed a certificate, approved on the same day by the Governor-in-Council, reducing the number of officers in the Education department by sixty-seven, and dispensing with the services of the petitioner and others. No notice of this proceeding was communicated to the petitioner until the 14th November 1894, the date of the delivery of the answer to the petition. On the 17th October 1894, the petitioner took proceedings under the Crown Remedies and Liabilities Act 1890, for re-instatement and salary accrued since 31st March 1894, or in the alternative for pension pro rata.

Held, that the petitioner was legally removed from her position on the 1st May 1894, by the certificate of the Public Service Board approved by the Governorin-Council.

Held further, (reversing the decision of a' Beckett J.), that the petitioner was not, by reason of notice of the legal removal not having been given to her until 17th October 1894, entitled in respect of the wrongful dismissal of the 28th February 1894, to any damages beyond the amount of her salary for the period between the 28th February and the 1st May. Cross appeal from a judgment of a'Beckett, J. The case below is reported ante p. 143, where the facts are fully set out.

Mr. Box for the Crown.-The measure of damages given by the learned judge below was wrong. The