vestment of the sums above mentioned. 4. What interest do each of the surviving children take in each class of property already mentioned. Mr. Mitchell and Mr. Pigott for the plaintifis.-No vested interest was given by the will to any child dying before the youngest attained the age of 21 years. If the royalty or rent for taking the gold was merely income, the four children would be interested. If it was not income then the representative of the deceased daughter would not be interested. As to the gold obtained from the land, all the English authorities referto cases where the minerals were the property of the freeholder, here the gold is the property of the Crown. Mr. Topp for the defendants John Price Charlton and Mary Robina Charlton.-The first question under the will is, where one child has died before the youngest has attained the age of 21 years, who takes the property bequeathed by the will? The effect of this death is that all the survivors take equally, and the representative of Mrs. Holdsworth has no interest in this property. The tribute received for the gold is neither corpus nor income, but something in the nature of compensation the income of which ought to belong to the persons entitled to the income from the estate. The gold is a portion of the soil and the money rceeived for allowing it to be taken should either be apportioned or the children should be entitled to the interest on the investiment of that money. In no respect can it be regarded as rent. The fact that the gold belongs to the Crown creates a difficulty and the proceeds derived from it cannot be considered as rent, income or corpus, but only as something which bas become part of the estate and which passes by the will. The rent for the machinery passes by the will, and as the testator had only ten-twenty-sixths interest in it, it cannot be considered as part of the freehold. As to the rent of the house the representative of Mrs. Holdsworth would be entitled to a share of it. Mr. Goldsmith for the defendant Elizabeth Jane Charlton.-It is doubtful what interest the children take under the will until the actual period of vesting arrives. There is a trust of all the real and personal estate for the children in equal shares on the youngest attaining the age of 21 years. So that no child who dies before that period takes any interest in the corpus. There is no direction for investment of the income, and the inference to be drawn from the direction as to corpus is that the income is only divisible among those children who are living at the time the youngest attains the age of 21 years. As to the land mentioned in the codicil and the proceeds of the gold obtained from it they both go to Elizabeth Jane Charlton for the gold is a part of the land. [A'BECKETT J.-But the codicil directs that during the minority of the youngest child that land is to be held in trust for all the children, and during that period a certain amount of gold is obtained from the land. Surely the proceeds of that gold belongs to all the children.] The gold is part of the corpus. The cost of obtaining it would be properly charged against the corpus. If the gold is to be treated as something issuing out of the land, the reasonable way to treat it would be to invest it and pay the interest to the beneficiaries, and cur. adv. vult. A'BECKETT J.:-The originating summons raises questions of construction on the will and codicil and other questions arising in the administration of the trusts. As to the first arising on the will I think that no child acquired a vested interest who died before the youngest attained twenty-one. Reliance was placed upon subsequent words in the will speaking of suspense of absolute vesting which were said to show that interests were vested before this period subject to being divested on death before it but I think they cannot alter the effect of the prior clause particularly as the income is directed to be applied "in the same manner "as my real and personal estate is herein before given "devised and bequeathed." The effect of my decision on this point is that the representative of Mrs. Holdsworth a deceased daughter of the testator takes nothing under the will. The second question is much more difficult arising on the clause in the codicil. [His Honor read the clause beginning "I give devise and bequeath the 400 acres" down to "between the survivors equally" twenty-one acquired no interest in the property devised or bequeathed by the will but that her death before that period did not divest the interest in the income of the 400 acres devised by the codicil. Declare that under the codicil Elizabeth Jane Charlton became solely entitled to the 400 acres on coming of age. Declare that under the codicil the income of the 400 acres, accruing due up to the time when Elizabeth Jane Charlton attained 21, belonged to all the children of the testator and that such income included all sums received (a) Under the tribute agreement in respect of mining. (b) Paid for the use of testator's mining plant and machinery. (c) Other rents. (d) Moneys paid as compensation for nining under the Mining on Private Property Act treating such sum as paid for surface damage during the term of the lease and excluding the proportion, if any, which would represent the currency of the lease beyond the coming of age of Elizabeth Jane. (c) Income produced by investment of proceeds of sale of mining plant and machinery up to coming of age of Elizabeth Jane. Declare that the testator's interest in the plant and machinery, as fixtures to the land, was included in the devise of the 400 acres. Direct taxation of costs of all parties, trustees as between solicitor and client and payment out of the moneys to which all the testator's children became entitled under the gift of income of as already set out. Elizabeth Jane Charlton is living and has attained twenty-one, but her sister Mrs Holdsworth died before Elizabeth Jane came of age and therefore according to the literal interpretation of the codicil the 400 acres is divisible between the survivors. The codicil is so badly drawn that explanatory words of some kind must be added to the sentence "if she or either of my said children die." This does not refer to death at any time. Admittedly it refers to death before the youngest child attains twenty-one. It is contended for Elizabeth Jane Charlton that it should be read as follows: "if Eliza"beth Jane Charlton should die before attaining "twenty-one or if in that event any other child should "die before attaining twenty-one," so that the provision for equal division is made in two contingences the first a single contingency, if Elizabeth Jane dies under twenty-one, the second a double contingency if she so dies and if another child dies under twentyone. This is certainly going a long way to effect the intention of the testator expressed in the direction that if Elizabeth Jane attains twenty-one she is to take the whole. The latter part of the clause refers to division on the "youngest surviving" child attain ing twenty-one. From the context, I think that "youngest surviving" is not intended to refer to Elizabeth Jane and that division on her attaining twenty-one was not contemplated. On the whole I decide that all the land goes to Elizabeth Jane. An important question arises as to moneys paid for the use of the land for gold mining under a tribute ment. It was contended that as the gold belonged to the Crown a different rule should prevail as between the persons entitled to the profits of the land up to the time when Elizabeth Jane came of age, and Elizabeth Jane, than would prevail if the mineral extracted had been coal or copper. I hold that as the Crown had not intervened and the trustees have dealt with the land as if the gold had belonged to them the ordinary rule applicable to mines worked by persons entitled in succession should apply. The land had been used for gold mining purposes by the testator. The trustees used it for the same purposes. I hold that what the trustees got from it before Elizabeth Jane Charlton came of age belonged to all the children who survived the testator in equal shares. As to the plant and mining machinery on the land I take them to have been so affixed that if they had belonged in the whole to the testator they would as between him and the devisee have been fixtures passing to the devisee. I think in the present case that the same rule should apply, though his beneficial interest was only an undivided share in the plant and machinery. I think he should be taken to have given with the land, so far as he was able to give it, that which was attached to the land, and in the eye of the law formed part of it, which was used in working the land by him in his lifetime and by his trustees after his death. A further point arises with respect to compensation paid under the Mining on Private Property Act which I deal with in the judgment. agree Declare that the testator's daughter Mrs. Holdsworth having died before his youngest child attained 400 acres. Sept. 17. Estoppel-Res judicata-Identity of subject matter— Evidence of-Time for proving the plea. The procedure in the Warden's Court does not allow a plea of res judicata to be disposed of until the complainant has closed his case. On Summers v. Cooper, 5 V.L.R. (M.) 42 distinguished. On the 25th April, 1894, A, B and C were summoned in the Warden's Court for unlawful interference with a mining tenement, and the case was dismissed. the 11th May 1894, A, B, C and D were summoned by the same complainant to establish his claim to the same tenement, and the complainant sought to have it determined that he was entitled to the sum of sixty pounds in the nature of mesne profits and damages. Before the complainant's case was closed the Warden intimated that the matter was res judicata and that the action could not be entertained. Held, that it was too soon at that stage to interfere, and that the case must go down to be re-heard. Special case stated by the Warden at Tallangatta for the opinion of the Supreme Court under the Mines Act 1890, (No. 1120) sec. 265. The following is the proved after the plaintiff has closed his case. make no order as to costs. SPECIAL CASE. On the 13th day of April 1894 Samuel Palmer Gay the younger, Wybert C. Ross and George Carter were summoned to appear before me as Warden at Tallangatta on the 25th day of April 1894 to answer the complaint of Thomas Sawtell by which complaint he Thomas Sawtell sought to recover the sum of sixty pounds (£60) damages for an alleged unlawful interference with a certain mining tenement and water race situate at Thongla. After hearing evidence I dismissed the complaint, and no appeal was lodged. On the 11th day of May 1894 the same defendants that appeared before me on the 25th April 1894, together with Samuel Palmer Gay the elder were summoned by the said Thomas Sawtell to appear before me as Warden at Tallangatta on the 23rd day of May 1891 and by which summons the complainant sought by virtue of his miner's right to establish his claim to a certain mining tenement, land, water race and water and to recover possession thereof, and which tenement is situate at Thongla and has recently been unlawfully used and occupied by defendants, and the said complainant further sought to have it determined that he is entitled to the sum of sixty pounds (£60) in the nature of me ne profits and damages therefor. The summons dated the 11th day of May came on for hearing before me the undersigned warden at Tallangatta on the 23rd day of May 1894; the complainant was represented by Mr. Ogier as counsel and the defendants appeared in person. The locus in quo is the same in both cases. I intimated that in my opinion the second complaint could not be entertained by me, as the matter had already been adjudicated upon. (Summers v. Cooper, 5 V. L. R., (M.) 42, followed), but, at the request of counsel for the complainant, I agreed to state a case for the opinion of the Full Court (sic), and adjourned the hearing of the complaint till the 4th day of August next at Corryong. The following is the question of law for the opinion of the Fuil (sic.) Court viz. : Was I right in holding that the same complaint could not, under the circumstances, be entertained by me? Dated this 10th day of July 1894 at Beechworth. Joseph Rowan, HOLROYD, J. In my opinion the warden was wrong in not entertaining the case. Any defendant who is entitled and desires to avail himself of the defence of res adjudicata must prove that the matter in issue on the second summons was determined on the hearing of the first. This defence having been proved will be a bar to the suit in favour of such defendants or defendant. But the proof cannot be given until after the complainant has closed his case. The procedure in the Warden's Court does not, as it seems to me, admit of a plea of res adjudicata being heard and disposed of before the complainant calls evidence. In Summers v. Cooper, 5 V.L.R., M., 42, the complainant called all his witnesses in the second suit, adding to the evidence he had adduced in the first; and afterwards, the identity of the matter in issue in the second suit having been established, the second suit was held to be barred by the previous adjudication. Ordinarily, the defence of res adjudicata would be good only between persons who were parties to the former proceedings; but if in this second suit the new defendant, who was not a party to the first, claims under the other defendants or any of them the defence may be good as to him also. I shall answer the question reserved by stating that in my opinion the warden was wrong in not entertaining the case; but that the defence of res adjudicata may be IN CHAMBERS. Before Hodges J. I shall ANDERSON V. CARTER; THE NATIONAL BANK 18, 25 June. Instruments Act 1890, ss. 169, 170-Stock Mortgage— Meaning of words, "other chattels "-After acquired property- Equitable claims - The words "other chattels" in ss. 169 and 170 cover everything which might be reasonably necessary for working such a station as that on which the mortgaged stock are depasturing-Furniture reasonably necessary for the house of the person who has charge of the station is reasonably necessary for the working of the station, and would, therefore, come within the words "other chattels"— Where a mortgagor assigned all after-acquired property that might be brought on the premises, the after-acquired property is treated in equity as the property of the mortgagee as soon as it is brought upon the premises. The Court in interpleader proceedings can determine equitable claims, and can restrain the sheriff, who has seized without notice of an assignment of after-acquired property, from selling under an execution. Sheriff's interpleader. The sheriff had seized certain furniture on a station belonging to the judgment debtor. The National Bank claimed the furniture under and by virtue of two stock mortgages. The mortgages followed the words used in sec. 170 of the Instruments Act 1890, and covered "all stock and other chattels" as therein expressed. The furniture was not mentioned in the schedule to the mortgages and there was no evidence to show that the furniture was on the station at the time of the execution of the mortgage. Mr. Cussen for the execution creditor. Unless this claim can be supported under Part VIII of the In struments Act 1890, it is bad, because there has been no registration as a bill of sale. The question then is, is there any limitation on the rights of stock mortgages to all chattels which happen to be on the station during the subsistence of the stock mortgage, whether stock strictly so-called or not and whether mentioned in the mortgage and in the particulars which are registered. Two limitations ought to be placed on such rights, first that as against purchasers for value without notice, execution creditors, and assignees in insolvency, the stock mortgagee is not entitled to claim goods not specifically mentioned unless he has taken possession thereof. This has been decided with reference to bond fide purchasers i.e. purchasers claiming through the mortgagor in Camplin v. McNamara, 15 A.L.T. 133, and execution creditors are placed in the same position by virtue of the provisions of sec. 169, and that section provides that possession of "such mortgaged stock" i.e. the stock specifically mentioned is to be deemed to be the possession of the mortgagee. It is admitted that in some cases a subsequent purchaser for value without notice is in a better position than an execution creditor but it was intended by sec. 169 in this particular enactment to place them in the same footing. Secondly the words "other chattels in sec. 170 must be read ejusdem generis and cannot cover such things as furniture. If "other chattels " is to cover everything that may ever come on the station then the description of "one sheep" in the mortgage must be held to cover all classes of chattels which might be used in connection with station pro perty. The policy of the Act is undoubtedly to protect creditors and some construction should be placed upon the sections so as to give effect to either one or both of the limitations suggested. Mr. Geoghegan for the claimant. The words "other chattels," in section 170, include all things that are usually employed in the management of a station. It has been held in Camplin v. McNamara, 15 A.L.T. 133, that they include a stack of hay. The mortgages have been admittedly made bona fide, and for valuable consideration and they cover the furniture claimed. both then everything that is reasonably necessary for HIS HONOR said :-I shall consider the matter. HIS HONOR On a subsequent day said :-This matter comes before me on a summons taken out by the Sheriff in consequence of a claim made by the National Bank to certain furniture. The Bank claimed the furniture under what is called a stock mortgage, which is admittedly duly executed. The furniture in dispute was on the station known as Glen Isla, which is the station on which the stock referred to in the mortgage were depasturing. The claimant must make its claim good under that stock mortgage, or fail altogether. The execution creditor contends that the claimant has no title to these goods and that the sheriff should be entitled to sell, because the furniture does not come within the words "other chattels " used in sections 169 & 170 of the Instruments Act, 1890. He further contends that even if the furniture comes within those words, then according to certain decisions of this court, the claimant has only an equitable interest, and that that should not stop the sheriff from selling. If he succeeds on either contention, he succeds altogether, and the question is whether either of such points is correct. Section 170 protects in favor of the person holding the stock mortgage, stock and other chattels which may be mentioned in the mortgage and it was urged that the words "other chattels " must be read ejusdem generis with "stock" and that furniture was not ejusdem generis with stock. In my opinion a more liberal construc-after-acquired chattels. tion will have to be placed on these words "other chattels," and at any rate I think that they must cover everything which might be reasonably necessary for working such a station as that on which the mortgaged stock are depasturing. If it be a sheep station then everything that is reasonably necessary for work ing a sheepstation, ifit be a cattlestation then everything that is reasonably necessary for a cattle station, and if it amounts to a contract to assign and, as equity assumes that done which ought to be done, as soon as after acquired property is brought on to the premises it treats the contract to assign as an assignment and in equity the property is the property of the equitable mortgagee and therefore in this case in my opinion the claimant is the equitable owner of these goods. Does that entitle him to the goods and to stop the sheriff from selling? In the case of Rusden v. Pope L.R. 3 Ex. 269, it was decided that the Court in interpleader proceedings would determine equitable claims; that case was followed in Duncan v. Cashin, L.R. 10 C.P., 554. The latter case in my opinion practically determines the present case. (His Honor read the head-note to that case). Brett, J. in delivering judgment said "Now I decline to say whether the furniture became in law the property of the trustee. Be that as it may, I base my judgment on the fact that in equity the furniture in question is the wife's and not the husband's. For the purpose of to-day I will assume that the trustee could not maintain an action at law for it. It was formerly supposed that the courts of law in dealing with questions arising under the Interpleader Act could not take notice of equitable claims; and there is in Rusden v. Pope the strong authority of Bramwell, B., that that is so; but the rest of the Court thought otherwise; and the preponderance of authority seems to me to establish that, where an interpleader issue has been ordered upon a sheriff's summons when the whole subject-matter is before the Court the Court will entertain the equitable claims of a third person." Accordingly, Brett, J., assumes that the legal property was in the husband, and the equitable property in the wife, and being in the wife the sheriff could not seize that property which at law was the husband's, but which in equity was the wife's to satisfy the husband's debt. So in this case the sheriff cannot seize that which is at law the judgment debtor's, but which is in equity the claimant's to satisfy the judgment debtor's debt. I think the same conclusion is to be drawn also from the case of Whitworth v. Gangain, 1 Phill. 728, where the Lord Chancellor points out that a judgment creditor who has seized without notice of any equitable title is not in the same strong position as a bond fide purchaser without notice; and in that case the sheriff was restrained from dealing with certain chattels real that he had seized on the ground that a person other than the judgment debtor had the equitable title to the goods. Therefore I am of opinion that in this case the claim should be allowed and the sheriff ordered to withdraw. The usual order will be made as to costs. Solicitors: for execution creditor, Hart; for claimant, Geoghegan; for sheriff, Snowball." SITTINGS IN BANCO. Before Madden, C.J., Holroyd and a'Beckett, JJ. IN RE CLEMENTS. Sept. 17, 18. Supreme Court Act 1890, ss. 20, 21—Administration and Probate Act 1890, s. 26—Commission to trustee -Summary order. Oot 6, 1894. The Court has no jurisdiction under s. 21 of the Supreme Court Act 1890 to make a summary order that a trustee, as distinguished from an executor or administrator, may pass his accounts and be allowed commission under s. 26 of the Administration and Probate Act 1890. Appeal from Hodges, J.1 A motion by A. D. Michie, one of the trustee of the estate of Tobias Clements, to be allowed to pass his accounts and be allowed a commission was dismissed by Hodges, J. The facts are set out in the report of the case in 15 A.L.T., 274. Mr. Michie now appealed from the decision. Mr. Topp and Mr. Bryant for the appellant, cited re Stuart, 7 V.L.R., (I. P. & M.), 25; re Swan, 7 V.L.R., (I. P. & M.), 49. Mr. Goldsmith for the respondent. MADDEN, C.J.-The contention in this case is that the practice which provides a short and summary method for arriving at the amount of commission which should be allowed to executors and administrators, should be extended to trustees. But authority to executors and administrators to take their commission and pass their accounts in this summary way has no definite and final result, for the whole matter is still open to review. But, such as it is, this authority is given by section 150 of the old Supreme Court Act (15 Vict. No. 10) which, in introducing the ecclesiastical practice gave to the Court the jurisdiction to call before it executors and administrators, and to deal with them in a summary manner without calling upon them to institute an action. That course can scarcely be called convenient, because it is not final or definite, but the Court has jurisdiction to make an order. In the present case the Administration and Probate Act 1890, sec. 26 is relied upon, and that section following the Administration Act of 1872 introduces the words "trustees for the time being of any deceased person," and it is said the introduction of those words confers on the Court the same jurisdiction with regard to trustees as it has with regard to executors and administrators. It may be conceded that that section entitles an executor or administrator to receive a commission the amount of which shall be ascertained in a summary way. Up to that time the only possible way in which the commission could be obtained was by instituting a suit, and in that suit a definite and final authorisation of the accounts of executors or administrators would be arrived at. It is said that there is jurisdiction, having regard to that section, to allow this same summary method to trustees. But very plain words should be used to give such a jurisdiction because it is an alteration of a well established practice, and is also an innovation which is certainly not convenient, and which might possibly be dangerous. The words which are to effect this change are said to be in the proviso to the section which is as follows:-"No such allowance shall be made to any executor, administrator or trustee who shall neglect or omit without a special order of the Court or a judge to pass his accounts, pursuant to any general or special rule |