Before Hodges, J.

DEEGAN V. REMINGTON.

5th July. Practice-Final judgment, Application for-0. XIV., r. 1-Application not made till defence delivered. There is jurisdiction to entertain an application for final judgment under O. XIV., r. 1, after a defence has been delivered, But, where the delivery of a defence has not been unduly hurried, the plaintiff must show by affidavit sufficient reasons for his delay. Application on behalf of the plaintiff under Order XIV., r. 1, for leave to sign final judgment.

It appeared that the defence had been delivered and the cause had been set down for hearing.

HIS HONOR said: Applications for final judgment under Order XIV., r. 1, should, as a rule, be made before the defence is delivered. If a plaintiff waits till after defence delivered to make the application he should show by affidavit how it was he came to make delay. A judge, no doubt, has jurisdiction to hear and deal with an application whenever made but, where the plaintiff does not apply until after the delivery of the defence and the defendant has not hastened the delivery of his defence unduly, I do not think such jurisdiction ought to be exercised unless the plaintiff shows reasons for his delay in making the application. I refuse the application.

Solicitors, for plaintiff, Moloney & Stuart; for defendant, Gillott & Bates.

SUPREME COURT.

Before Holroyd, J.

CRAIG V. ROBERTS.

Held, that upon the termination of the contract the plaintiff was not entitled to reject the then existing mortgages and demand from the defendant or his firm the amount then owing upon them, but that she was bound to take over the mortgages at the amount then owing by the mortgagors.

It is the duty of a solicitor when entering into a contract of this nature with a client to reduce its terms into writing, and explain them clearly to the client, and so to keep the books of his firm that no doubt as to the terms of the contract can subsequently arise. The plaintiff by her writ claimed (inter alia) all necessary accounts and enquiries as to moneys received by the defendant for investment, and also damages for negligence.

The Court ordered an account to be taken without prejudice to the plaintiff's right to bring a fresh action for negligence.

This was an action brought by Mary Jane Craig, executrix of the will of William Masson deceased, to recover £10,000 for money lent to the defendant and interest or in the alternative for money received by the defendant from and as agent for the plaintiff for investment on her account, and for principal and interest due under a covenant in an instrument of mortgage under the Transfer of Land Act 1890 from the defendant to the plaintiff dated the 17th March 1892 and for damages for the defendant's negligence while acting as the plaintiff's agent. The defendant specifically traversed the various allegations contained in the statement of claim, and alleged in the alternative that if he had received any moneys of the plaintiff he had done so in the ordinary course as her solicitor or as one of the members of the firm of solicitors through whom her investments were made and moneys collected and that such receipts had always been accounted for to the plaintiff and that payments had from time to time been made by him or by the firm of solicitors of which he was a member to the plaintiff or at her direcMay 9, 10, 11, 12; tion as representing the sums to which she was from time to time supposed to be entitled ; he said that more to receive and that their mutual rights could not be had been so paid to the plaintiff than she was entitled ascertained without taking a general account of all dealings between them, when it would be found that The plaintiff had paid money to her solicitor for invest-mitted that the sum of £1,800 was due from him to a balance was due from the plaintiff to him. He adment, he paying her 7 per cent. on the amount in his hands. Some of the moneys so advanced were invested on mortgages, such mortgages being taken in the client's name. No time was fixed for the termination of the agreement between the solicitor and client, and it was not reduced into writing, but, according to the finding of the Court on the facts, the arrangement was that the plaintiff was to get 7 per cent. interest on all money which the firm might receive on her account, no matter how it was invested, and that they were to collect the money for her, and undertake the investment of it from time to time and do all work in connection with this duty without furnecessary ther charge than the excess, if any, which the firm might obtain beyond the 7 per cent. :

June 4.

Contract-Solicitor and Client-Moneys deposited for investment-Mortgages in client's name -Oral agreement-Judgment for part of claim without prejudice

to remainder.

the plaintiff, according to the terms of the covenant in
the deed of the 17th March 1892, but stated that on
taking the accounts it would be found that more was
claimed under the mortgage. Lengthy particulars of
owing to him from the plaintiff than the amount
the payments made by the defendant on the plaintiff's
account were delivered. The other facts of the case,
so far as they are material, sufficiently appear from the
judgment.

Mr. Higgins and Mr. Deakin for the plaintiff.
Mr. Weigall and Mr. Williams for the defendant.
Cur, adv. vult.

HOLROYD, J.-The real question which I have to determine in this action is what were the terms of the

contract between the parties concerning the collection | when settled. It is difficult to fix the exact date at
and investment of Mrs. Craig's money. The evidence, which the contract should be deemed to have termin
especially that of Mrs. Craig, is of the vaguest charac- ated or to terminate. In the defence it was averred
ter on this most important point, and is decidedly con- that the plaintiff had been overpaid, (that is, treating
flicting. Mr. Higgins wished me to regard all sums the mortgages on which the plaintiff's money was in-
collected by the defendant's firm as loans to Mr. vested as representing the principal sums thereby re-
Roberts himself at 7 per cent. and insisted that the spectively reserved), and that nothing was then due
plaintiff was induced to consent to the mortgages under the defendant's mortgage of the 17th March.
being taken in her name by the assurance that they 1892. If that be so, the account should be carried
would be an additional security for his ultimate repay- down to the date of the defence; otherwise, it should
ment of the money borrowed. I think it was intended be carried down, I think, to the date of the Chief
that until the arrangement was terminated the plaintiff Clerk's certificate, and a balance struck as at that
should get 7 per cent. interest on all money which the date. The mortgage of the 17th March, 1892, from
firm might receive on her account, no matter whether Roberts to Mrs. Craig under her then name of
it was invested or not, or what rate of interest might Grabam, expressed to be made in consideration of
be obtained; and that the firm were to collect the £1,800 then owing from him to her, was intended as
money for her, and to undertake the investment of it a security to that amount for the uninvested balance
from time to time and do all work necessary in con- then remaining in his hands, which was calculated, I
nection with this duty without further charge than suppose, at about that amount. It must still stand as
the excess, if any, of the interest which the firm might a security for such balance, if any, as may be due to
obtain beyond that which they might have to pay. the plaintiff on taking the account. Mr. Roberts must
The arrangement so far was in fact carried out. pay the costs of this action up to and inclusive of the
Roberts says he thought they were not bound to pay hearing. A contract of this description, entered into
interest on moneys uninvested, but did pay it because with a client, should have been put into writing, and
there was a running account between the firm and Roberts should have caused every detail of it to be
Mrs. Craig, they making advances to her, and charg- fully explained to Mrs. Craig and assured himself
ing her with 7 per cent. on such advances. It is true that she fully understood it. In addition, the books
that they made some advances to Mrs. Craig, and of the firm should have been so kept that no doubt or
charged her with 7 per cent. thereon, and I think that misunderstanding could arise in the mind of any of
was part of their agreement; hut Roberts certainly his clerks as to what he meant. I shall reserve the
left Mrs. Craig under the impression that she was to consideration of further directions and future costs.
get 7 per cent. on all moneys of hers retained by his There will be liberty to apply. If Roberts was guilty
firm whether invested or uninvested. Fortunately, of negligence by investing Mrs. Craig's money on in-
this point is not now of much importance; as Mr. sufficient or improper securities my judgment will not
Roberts, who is now the only member of the firm, prevent her from bringing an action, should she be so
does not in this action dispute his liability to account advised, to recover damages for any loss she may have
on that footing. It was admitted on both sides that thereby sustained.
either party might terminate the contract at any time;
and that immediately upon its termination Roberts, as
the plaintiff contends, or the firm, as the defendant
maintains, was to hand over to the plaintiff any unin-
vested balance then remaining in his hands or the
firm's. But I cannot adopt the argument of the
plaintiff's counsel that upon the termination of the
contract the plaintiff was at liberty to reject the then
existing mortgages, and demand from Roberts (or the
firm) the amount then owing upon them. Upon the
evidence I find that the principal invested by the firm
was, by the contract between the parties, to be in-
vested as her money, and that she was to take over the
mortgages existing at the termination of the contract
at the amount then owing by the mortgagors. It
results from my view of the contract between the
plaintiff and defendant that a general account must be
taken of their mutual dealings and transactions since
Mr. Masson's death, and, as the basis of it, there must
be a declaration in accordance with my finding. It was
mutually consented at the hearing, as I understand,
that the defendant's particulars of the receipts for
which he is accountable should be accepted as accurate
for the purpose of such account if ordered, and, if so,
such consent should be embodied in the judgment

Solicitors, for plaintiff, Braham and Pirani; for de-
fendant, J. K. B. Plummer.

Before Hodges J.

CAWSEY V. ANDREWS AND OTHERS.

June 28.

Police Offences Act 1890, sec. 37-Lottery-Disposing
of land by lottery-Land not that of promoters—
Company formed in another colony-Distribution of
Victorian land among shareholders.

It is an offence within sec. 37 of the Police Offences Act
1890, by means of any device to endeavour to sell by
means of a game of chance any lands whether belong-
ing to the person so endeavouring or not.
The Court having found that there was an endeavour
in Victoria, to dispose in Victoria of land in Victoria.
Held, that the fact that the lottery was to be drawn in
another colony did not oust the jurisdiction of the
justices.

Order nisi for a prohibition.

An information was sworn by Henry Cawsey against
Lomer Andrews, W. C. MacDermott, and Frederick
MacGregor, charging that they "unlawfully intending

IN CHAMBERS.

Before a'Beckett J.

THE SHAMROCK BREWING AND MALTING COY.
V. SCHOMANN.

19 July. Justices Act 1890-Sec. 141-Order to review-Nonservice of complaint-Affidavit of service-Error or mistake.

Application on behalf of the defendant for an order nisi to review.

It appeared that the complainant sued the defendant for a debt. The defendant had applied for a transfer of the licence of a certain hotel from herself to a certain other person, and had ceased to reside at the hotel. The complaint was served at the hotel on the proposed transferree, who informed the server that the defendant had left the premises, and returned the complaint to the clerk of the Court on the morning of the return day. The server made the usual affidavit of service, and no appearance was made by the defendant on the hearing, nor was any objection taken on her behalf. The justices made an order.

Mr. McInerney in support. The defendant was not served, and the justices were wrong in making an order under the circumstances.

HIS HONOR --The justices had all the necessary materials before them. The defendant did not appear and there was an affidavit of service of the complaint before them. Taking the defendant's version of the circumstances to be true, I look upon the matter in the same way as if they had acted upon the evidence of a witness which subsequently turned out to be false As there was evidence before the justices which would warrant them in making the order they did, I do not see how I can say they were guilty of an error or mistake. Unless some authority can be shown me for the proposition I shall refuse to grant an order nisi to review.

account of the plaintiff. The writ was endorsed as follows:

The plaintiff's claim is for an account of the moneys received by the defendant from and for the plaintiff as her trustee and agent, and for money received by the defendant for and on account of the plaintiff, and for payment of the sum.

The defendant went insolvent after the action was commenced and the other material facts and the arguments appear sufficiently from the judgment.

Mr. Tucker in support, cited England v. Moore, 6 V.L.R. (E). 52, and M'Carthey v. Ryan, 7 V.L.R. (E), 136. He referred to the Insolvency Act 1890, ss. 77, & 80.

Mr. Shiels to oppose, cited McAuley v. Beattie, 12 V.L.R. 633. He cited the Supreme Court Act 1890, sec. 3, and Order 1, r. 1.

HIS HONOR Said: I shall consider the matter.

HIS HONOR on a subsequent day said: The plaintiff claims an account for money received by the defendant as trustee on her account. After the summons was issued and before accounts were taken the defendant became insolvent. After the insolvency the plaintiff took out a summons calling upon the defendant to show cause why accounts should not be taken. It was objected on behalf of the defendant that the action was stayed by the operation of section 77 of the Insolvency Act 1890. That section provides that no action shall be brought against an insolvent for a debt provable in insolvency, and that all proceedings shall, upon an order of sequestration being made, be stayed. It was contended on behalf of the defendant that this was an action, and that proceedings in the action then pending were stayed by the operation of that section. In the section itself the distinction appears to be recognised between an action and a suit. In the first part of the section it states that proceedings in the action then pending, etc. But further on it provides that any creditor who shall be prevented by sequestration from proceeding to a sale under an execution levied before sequestration shall be entitled to the costs incurred in the action, suit or other proceeding. That distinction being recognised in the section itself it was contended that the word "action" in the first part was as extensive as action, suit or other proceeding" in the latter part, and that under the word "action" suits and other proceedings were included. In my opinion that contention is not well founded. I think the fact that the section recognises the distinction between the two shows that the Legislature meant in the first part of the section to stay actions but did not intend that suits should be stayed. Though for obvious reasons, if a suit had proceeded to Insolvency Act 1890, sec. 77-Action for accounts-judgment and execution issued against the property Insolvency of defendant-Stay of proceedings-An action for accounts is not such an action as comes within the meaning of sec. 77 of the Insolvency Act 1890, and therefore, the insolvency of the defendant does not operate as a stay of such an action. Application on behalf of the plaintiff for an order that an account may be taken of the moneys received from and for the plaintiff as her trustee and agent, and money received by the defendant for and on

Solicitor for defendant McInerney.

Before Hodges J.

SETTER V BELL.

21 June, 18 July.

of the debtor it might be proper to stop the action. It appears that the question is covered by authority, In the case of The Australian Trust Coy. v. Webster, 1 W. & W., (E.) 148, it was held by Mr. Justice Molesworth that the word "action" did not include suit. In England v. Moore, reported 6 V.L.R., Eq. 48, Mr. Justice Molesworth said section 75 (corresponding with section 77) provides for a stay of proceedings in a case pending against insolvents