Paris Hotel Co., L.R. 20 Eq. 412; Evans v. Hoare (1892), 1 Q.B. 593; and Lever v. Koffler (1901), 1 Ch. 543, which were cited. There are two other cases that were relied on which present some difference, but they are in reality upon the same principle. The first of these is Field v. Boland D.R. & W. 37. There a document addressed to a third person was certainly held sufficient. But again, that document formed the written agreement. The parties had entered into a verbal treaty for purchase of premises belonging to the defendant, but did not agree as to the price. The defendant wrote to a third person stating the sum that he would accept from the plaintiff. The plaintiff agreed to this, and lodged the money in the hands of the third person, who thereupon made an endorsement with regard to the price on the back of the defendant's letter. This letter of the defendant's with the endorsement was held to amount to a written contract, the Court considering that the third person was acting as the defendant's agent. The other case is Stewart v. Eddowes, L.R. 9 C.P. 311. There a memorandum written before the contract was held to satisfy the Statute, but on the ground that the document became, by the subsequent assent of the parties, the written contract. In none of the cases referred to was there a verbal contract in existence of which the writing was held to be a memorandum, so that these authorities do not support the proposition contended for by the plaintiff, or in any way invalidate the view that the memorandum or note in writing required by the Statute, in order to support a verbal contract, must come into existence subsequently to the contract itself. In our opinion, therefore, this appeal should be allowed, and judgment entered for this defendant. With regard to the cross appeal, we think that it should be dismissed. The only way in which Palmer can be held liable is by alleging that there were two sales of the land in question, one in May and the other in July, and that he had no authority on the first occasion. There seems to us to be no such case made out in the pleadings or in the evidence. The plaintiff put the case against Palmer in his pleadings alternatively as to the date of the assertion of authority to sell, alleging either May or July. But there is only the one contract of sale set up. And this view is supported by the evidence. Indeed, it would be rather curious to find a purchaser alleging or attempting to prove that he had made the same contract in regard to the same land with the same person on two different occasions unless some special circumstances were set forth which do not exist here. The evidence discloses only the one sale, extending over a considerable time, and not completed till July. The plaintiff therefore fails. It is not necessary to consider the other answer to this appeal, founded upon the contract not being in writing, and being repudiated by the vendor, but there is one matter to which I think it desirable to refer. During the discussion on this point, an interesting article in Vol. 13 Law Quarterly Review, written by the learned counsel for the plaintiff, Mr. Cussen, was cited, in which reference was made to the decision of this Court in Williamson v. Tait, 18 V.L.R., 649. That case was quoted in that article, and cited to us as an authority for the proposition that a third person cannot raise any question of the Statute of Frauds as between the contracting parties. I desire to state that, in my opinion, such a point is not involved in the decision in that case. The dispute there was one between mortgagor and mortgagee. The decision is that the right of a mortgagor of chattels to redeem is gone as soon as the mortgagee has exercised his power of sale, even though there be no writing within the 17th section of the Statute of Frauds. In my judgment I said:"In the present case the power of sale has been bond fide exercised prior to the tender of the money, and no authority has been cited to show that the mortgagors are entitled to compel the mortgagee under such circumstances to repudiate his honest bargain, and to defeat his conscientious agreement by pleading the Statute of Frauds, and in the absence of such authority I do not feel bound to so decide." And that this is the true view of that decision is made abundantly clear by the judgment of A'Beckett, J., who dissented, but solely because he took a view of the duties of a mortgagee different from that held by the other members of the Court. The appeal of Mrs. McLeod will be allowed, with costs, and judgment entered for her, with costs. The appeal of the plaintiff in regard to the Palmers will be dismissed, with costs. Solicitors: For plaintiff, E. Hart for L. Horwitz, Hamilton; for defendants, R. J. Talbot for Palmer & Son, Hamilton. Before Williams, Holroyd and Hood, JJ. HICKS V. THE TRUSTEES EXECUTORS AND AGENCY Co., LTD. 1901, October 31. Trusts Act 1896 (No. 1421), s. 29-Trustee-Breach of Trust-Limitation of Action-Honest Breach of Trust-Action to recover Trust Property "Retained” by Trustee. The exception in section 29 of the Trusts Act 1896 of actions to recover trust property retained by the trustee is confined to cases where the retainer is wrong or improper, and does not include cases where a trustee has committed an honest breach of trust. Decision of Madden, C.J., reversed. Appeal from Madden, C.J. Pursuant to an order of the Full Court made in an action brought by Mrs. Harriett Hicks against the Trustees Executors and Agency Company, Limited, certain issues were directed to be tried, viz., whether the defendant company had been guilty of a breach or breaches of trust in not realising within a reasonable time after the death of the testator the vacant and unproductive lands, or the lands subject to mortgages or incumbrances mentioned in the statement of claim, and if so, whether any, and, if so, what, loss had thereby accrued to the estate, and whether the plaintiff's action was barred by the Trusts Act 1896. The facts and pleadings are set out in 22 A.L.T., at p. 102, where the proceedings before the Full Court, when the order was made, are reported. The issues were tried before Madden, C.J., who found that certain breaches of trust had been committed by the defendant, that loss to a certain amount had accrued to the estate, and that the plaintiff's action was not barred by the Trusts Act 1896. From this decision the defendant company now appealed. Mr. Higgins and Mr. Pigott for the appellant company. This is not an action to recover trust property still retained by the trustee. The claim is one for administration, and in that administration to charge the trustee with the difference between what might have been obtained for the trust property if it had been sold at the proper time, and the present value of that property. A specific devisee has no right, in the present circumstances, to have the specifically devised property transferred to him, and the mere fact that he sets up a claim to that transfer cannot alter the real nature of the action, and so bring the action within the exceptions to section 29 of the Trusts Act 1896. The exception as to actions to recover property retained by the trustee refers to property retained by the trustee for his own use or for the use of some other person. [HOOD, J."Retained" seems to mean adversely or wrongly retained, and the section is intended to protect honest Yes. trustees.] [HOLROYD, J.-" Retain must mean improperly retain. There must be a right to recover it. Mr. Topp.-Fraud is specifically mentioned before, so that this exception must apply to an honest retaining by the trustee. HOOD, J.-The fact that fraud is mentioned seems to show that the other exceptions are as to something in the nature of fraud.] [Counsel was stopped.] Mr. Topp and Mr. Cussen for the plaintiff respondent. The plaintiff is entitled to the specifically devised property, unless the assets are insufficient to pay the debts. That they are insufficient is the result of the defendant's breach of trust. The defendant cannot rely on that breach in order to prove an insufficiency of assets, so as to defeat the plaintiff's claim. The plaintiff's substantial claim is not to recover land, but to compel the fulfilment of an express trust under which land is devised to the plaintiff. The section of the Trusts Act does not apply to such a case. As to section 29 of the Trusts Act 1896, if the property is adversely or improperly retained the action comes within the exception as to fraud. The other exception refers to property still in the possession of the trustee. [HOLROYD, J.-How can you recover property from a trustee if he retains it properly?] He may retain it honestly, but under a mistake of law or of fact. The English cases are to the effect that the word "retains" simply means has in his possession. In re Somerset, (1894) 1 Ch. 231; Howe v. Earl Winterton, (1896), 2 Ch., 626. The section is only intended to afford a protection to an honest trustee if he has not the trust property in his possession, or if he has not had the personal benefit of it. They also referred to Skinner v. Trustees &c. Co., ante, p. 65; Matthews v. Trustees &c. Co., 20 A.L.T., 129; Lewin on Trusts, 10th ed, 1080. Mr. Higgins, in reply.-There is no express trust here until the creditors have been paid, or the execu tor assents. The only relief the plaintiff is entitled to is to have administration accounts. The very object of section 29 is to enable an honest trustee to raise as a defence his own breach of trust. He referred to Smith v. Brooksbank, 7 Sim., 18; Woodgate v. Field, 2 Hare, 211. [He was stopped]. WILLIAMS, J., in delivering the judgment of the Court, said.—This is an appeal by the defendant from the decision of the learned Chief Justice who decided that the defendant had committed certain breaches of trust and that these breaches of trust had involved a loss to the estate of a sum of about £9,000, and therefore he assessed the damages at that sum. The defences of the defendant were first that there were no breaches of trust, and secondly, that the plaintiff's cause of action was barred by the Statute of Limitations. The learned Chief Justice decided both those points against the defendant. The defendant has now appealed to this Court from the judgment of the learned Chief Justice. We have heard no argument upon the point as to whether that portion of the finding of the learned Chief Justice that those breaches of trust have been committed can be substantiated or not, and the reason we have heard no arguments upon that point is that we wished to hear arguments on the point of law as to whether the plaintiff's cause of action was barred by the Statute of Limitations. We have confined the argument, so to speak, to that point, and we have come to the conclusion that the plaintiff's cause of action is barred by the Statute, and does not fall within the exceptions mentioned in section 29 of the Trusts Act 1896. Having heard no argument on the first point we express no opinion upon it whatever. The only question that involves any difficulty is how the costs in this case should be apportioned. On the enquiry before our brother A'Beckett-the first enquiry-Mr. Higgins, counsel for the defendant, raised the point that the evidence the plaintiff had adduced disclosed no breach of trust, and asked for a judgment accordingly. The learned judge said that as Mr. Higgins was prepared to accept the responsibility, he would rule that the evidence did not disclose any breach of trust by the defendant. That was the position on the first enquiry, and we think that the abortive nature of that enquiry was, to a great extent, brought about by the fact that counsel for the defendant invited the learned judge to express an opinion without hearing all the evidence. We therefore think that the defendant should pay the costs of that enquiry, that is, the costs of that enquiry which were rendered abortive, because, as I am reminded, much of the evidence adduced at that enquiry was used afterwards on the enquiry before the learned Chief Justice. Then as to the enquiry before the learned Chief Justice, the defendant informed the plaintiff in the clearest and most emphatic way that he intended to raise this question of the Statute of Limitations as a bar, and in fact he told the plaintiff it was no use going on with the matter. The plaintiff had the carriage of the whole proceeding by the order of the Full Court, and in spite of that warning she let the enquiry go on, and went into the question of the breaches of trust without taking any steps to have this question of law first decided. The result is that though the evidence has been taken, and though the learned Chief Justice has found that breaches of trust were committed, yet by the decision of this Court it is now decided that the plaintiff has no cause of action which she can enforce. We therefore think that the plaintiff should pay the costs of the enquiry before the learned Chief Justice, and that this appeal should be dismissed with costs. The plaintiff's substantial cause of action here is undoubtedly the breaches of trust by reason of which she says that the value of the estate has been greatly depreciated. Those breaches of trust were that the trustee had not sold certain lands which formed part of the trust estate within a reasonable time after the death of the testator, and, in consequence, the land falling in value, the estate became partly depreciated. For that the plaintiff claimed to be compensated by the trustee. absence of exceptional circumstances. HIS HONOR said.-I shall consider the matter. HIS HONOR, on a subsequent day, read the following judgment. In this case two executors are applying for probate. One of them resides in Deniliquin. He has not made any affidavit identifying the will. The Registrar has declined to grant probate unless he does so. I have seen the Registrar on the subject, and find that his objection is not founded on any express rule, but on the long established practice of the Court to require that both executors should in some way show their knowledge of the document they seek to prove by an affidavit referring to it, or to a verified copy of it. It is obviously proper that the executors who take up the trust should do something equivalent to acknowledging a particular document as that under which they are to act. The promising affidavit as it is called, the only one which the rules expressly require to be made by both executors, does nothing to identify any document. Our practice in requiring both executors to recognise a specific document by their affidavit is in accordance with English practice, and the importance attached to this recognition is markedly shown by the affidavit required by the English rules in case of double proof as it is called, that is, where a second executor comes in to prove under leave reserved. In such a case, although the will has been already proved, and there can be no doubt as to the document intended, the form of affidavit No. 73 provides for the second executor identifying the original will-see Tristram and Coote's Probate Practice, 11th ed., p. 701. There being no express rule with us, though the practice is long settled, the Court has dispensed with the requirement, if under special circumstances there was good reason for doing so. It might be done, for instance, if the condition of the document made its transmission by post undesirable, or an executor resided in some inaccessible part of the country, or was unable to travel. In the case now before me, all that appears is that the executor who has not made the requisite affidavit resides in Deniliquin. If this were held to be enough, cases would continually arise in which executors in Victoria, living in places distant from one another, would claim the same exemption. must assume that the practice is based on good reasons, though it very often causes inconvenience. I require that it shall be followed in this case, unless special grounds are shown for departing from it The will may be taken off the file, or the executor may refer to a verified copy. I should add that a similar case has recently been brought under the notice of my brother Hood, and he authorises me to say that Practice (Probate)-Will-Application by Executors-he concurs in my view as to the desirability of adherIdentifying Will-Affidavit. Now, that is the cause of action, and we do not think that it falls within any of the exceptions mentioned in section 29 of the Trusts Act 1896. If that cause of action does not fall within any of those exceptions, then the Statute of Limitations applies. We think that the exception is confined to and comprises cases where the trustee has done something wrong or improper. It does not include the case of an honest or innocent breach of trust, such as took place here, that is to say, a case where the trustees, though they may have made a mistake, have acted honestly. We do not think the exception includes a case of that kind. It includes the case where trustees have been fraudulent, or where trustees have converted trust property, or have detained trust property, and refuse to give it up. In other words, the exception only covers cases where the trustees have been guilty of some improper conduct, and does not cover honest or innocent breaches of trust. Solicitors For appellant, E. L. Vail & Son; for defendant, Fox & Overend. PROBATE JURISDICTION. Before A'Beckett, J. IN THE WILL OF DONELAN. Oct. 31; Nov. 4. Where two or more executors are applying for probate of a will, the practice of the Court requires that the will should be identified by each of the applicants; such practice will not be departed from in the I ing to the practice, in the absence of exceptional NOTE. The case referred to in this judgment was In the IN CHAMBERS. Before A'Beckett, J. MCINTOSH V. CAY. November 15, 20. Rules of Supreme Court 1884, Order LXV., r, 27 (48)-Legal Profession Practice Act 1891 (No. 1216), s. 8 (1)—Counsel-Substantial AttendanceTaxation of Costs-Refresher Fees. In measuring substantial attendance of counsel as to refreshers, the taxing officer is not bound by the number of working hours mentioned in rule 27 (48) of Order LXV. Application on behalf of the plaintiff for an order to review the taxation of the plaintiff's costs. It appeared that a verdict was obtained by the plaintiff, except as to one issue upon which the defendant succeeded. The plaintiff thereupon brought in his costs for taxation, which included the following items: "August 22nd ... Attending Mr. Cussen marking refresher 10 0 Paid his fee and clerk 11 0 0 Both these items were disallowed by the taxing officer, and the plaintiff brought in the following objections:"This action was commenced on the 20th August, 1901, and occupied until the 23rd August. That on the first day of the trial Mr. Cussen, senior counsel for the plaintiff, was not in attendance; but on the second day of the trial Mr. Cussen was in attendance from 12.30 p.m., and, although no refresher was claimed for him on the second day, he was entitled to and was paid a refresher fee for the third day." The reasons of the taxing officer for the disallowance of these items were as follows: - 'Disallowed.-I would refer to rule 27 (48) Order LXV. of the Supreme Court (new Rules)." Mr. Cussen in support.-There is no question of substantial attendance raised. The rule under which the taxing officer acted only relates to the duration of the trial, and does not relate to the attendance by counsel at all. The managing clerk of the agent of the defendant's solicitors to oppose. - As counsel did not attend on the first day, no refresher was charged for the second day. On the second day counsel attended only from 12.30., p.m., and the taxing officer refused to allow the refresher for the third day because counsel had not given a sufficient attendance on the second day. In order to obtain a refresher counsel must have previously given attendance for a full working day. He cited Reid v. Union S.S. Coy., 19 A.L.T., 154. HIS HONOR said.-I shall consider the matter, and as it is of some importance, I may think it advisable to consult with some of the other judges. HIS HONOR on a subsequent day read the following judgment.-Summons to review taxation in relation to the disallowance of a refresher. The taxing officer in his reasons refers merely to Order LXV., r. 27 (48), but it appears that he also had regard to section 8 (1) of Act No. 1216 as to the substantial Nov. 30, 1901. attendance of counsel. The grounds upon which he proceeded are not clear upon the materials before me, and I therefore refer the matter back to him with the intimation of my opinion that, in measuring substantial attendance of counsel as to refreshers, he is not bound by the number of working hours mentioned in rule 27 (48). For instance it would be competent for him to allow a refresher to counsel after the case had lasted seven hours, although the counsel had not been in attendence for the whole of that seven hours. Should the taxing officer adhere to the view he has taken as to the disallowance of the refresher, he will state his reasons fully so as to permit of the appeal provided for by section 8 of Act No. 1216. I make no order now as to the costs of the summons. Solicitors For plaintiff, Hart, for Horwitz, Hamilton; for defendant, Hill & Talbot, for A. C. Palmer & Son, Hamilton. PRACTICE COURT. Before Hood, J. GREEN V. O'DONOGHUE. October 16, 21. Landlord and Tenant Act 1890 (No, 1108), s. 93— Ninth Schedule-Ejectment-Proof of Neglect or Refusal to give up Possession — Appearance -Admission-Complaint-Signature by Justices Jurisdiction. The mere fact that the defendant appears is some evidence that he neglects or refuses to give up possession. The form of complaint provided in the Ninth Schedule is for the guidance of the justices merely, and the signature of the complaint by justices is required solely for the purpose of having some record to the proceedings kept in the Court. Such a signature is not a condition precedent to jurisdiction. Order nisi to review the declsion of the Court of Petty Sessions on the grounds: 1. That no formal demand for rent was made or proved. 2. That there was no evidence of any neglect or refusal by the said Patrick O'Donohue to deliver up possession after service of the notice of intention to proceed. 3. That there was no proper complaint before the justices. The complainant proceeded against the defendant under section 93 of the Landlord and Tenant Act 1890. The complaint was in the form in the Ninth Schedule to that Act, but was not signed by any justice of the peace. The proceedings were otherwise regular. The arguments appear sufficiently from the judgment. Mr. Bryant moved the order absolute. HIS HONOR said.-I shall consider the matter. HIS HONOR, on a subsequent day, said. The magistrates made an order for the issue of a warrant to eject the defendant from premises which he had rented from the complainant. An order to review that order was obtained on three grounds. The first ground was that no formal demand for rent was made or proved; but during argument this ground was abandoned. The next ground was that there was no evidence of any neglect or refusal by the defendant to deliver up possession after service of the notice of intention to proceed. The section in question-section 93 of the Landlord and Tenant Act 1890-requires the complainant to give proof of service of the notice, and of the neglect or refusal of the tenant or occupier as the case may be. This objection was not taken in the Court below, and I think an objection of this sort may be disposed of on the ground of waiver. But, apart from that, I think there is evidence upon which the magistrates might act. The mere fact that the defendant appeared to oppose the application is some evidence that the defendants refused or neglected to give up possession, and in addition to that it was urged on his behalf that he should not be turned out of possession because he had sown some part of the land. That is a clear admission that the defendant was in possession, and, although made in addressing the Court after an objection that the complainant had not proved his case, I think it is still an admission, and that that ground of the order nisi fails. The third ground, which raises a somewhat peculiar point, is that there was no proper complaint before the justices. There was a complaint, and it followed the form given in the 9th schedule, and it is signed by the complainant. But the form in the schedule undoubtedly contemplates that the complaint should be signed by the justices, and that was not done in this case. It was pointed out that although the schedule is referred to in the margin of section 93, the schedule is not referred to in the section itself. That is undoubtedly so. The sections commencing at section 92 refer only to the 8th schedule, and although the complaint and the warrant, forms of which are given in the 9th and 10th schedules, are referred to in the margin of section 93, the schedules are in no way referred to in the section. I was asked to give no weight to the schedule, but I cannot do that. It is part of the Act, and some meaning must be given to it. The mistake, if it be one, started ab initio. The original English Act was 1 & 2 Vict., c. 74, and that had only one schedule, and the three schedules we have now under this part of the present Act were merely forms. That Act was copied into New South Wales, still retaining the one schedule, and the three forms. That Act of New South Wales was repealed by our Legislature by the Landlord and Tenant Statute 1864, and the one schedule was made into three, one form being placed in each schedule. 1 think that shows that these are mere forms for the guidance of justices, and that where a complaint is required, it is to take the form in the 9th schedule. Under the Landlord and Tenant Act no complaint whatever in writing is necessary; but the Legislature evidently contemplated that in a case of this sort, which had been commenced by notice under the 8th schedule, there should be some record of the proceedings kept in the Court. The fact that the complaint is to be signed by the justices, and that there is to be a duplicate of the notice of intention to apply annexed to the complaint shows that it is a record of the proceedings of the Court, to be kept by the Court, and that is what the 9th schedule should be interpreted to be. By having the complaint in Court, with the notice annexed to it, there is a complete record of the proceedings that have taken place. The complainant is distinctly told what he has to do. It is no more a matter of jurisdiction than if the Act had told the justices to make a copy of the complaint in their book. I think it is not a condition precedent to the jurisdiction, and therefore the order nisi will be discharged with costs. Solicitors For complainant, Pearson & Mann, Ballarat; for defendant, Dugdale & Creber for Tuthill, Ballarat. Before Hood, J. CHRISTOPHERS V. HEPBURN. 1901, November 28. Veterinary Surgeons Act 1890 (No. 1154), s. 23--Use of word "Veterinary. person not registered under the Veterinary Surgeons Act 1890, on a signboard on his shop described his business as a "Veterinary Shoeing Forge." Held that he was guilty of an offence under section 23 of the Act. Quare whether the prohibition in section 23 against the use of the word "veterinary," is qualified by the words "implying that he is a fellow member of any veterinary school or college." Order to review. At the Court of Petty Sessions at Ballarat, L. T. Hepburn was informed against for that he not being a person registered under the Veterinary Surgeons Act 1890 did use the term "veterinary" in connection with his name and business of a shoeing forge contrary to law. It was proved that over the door of his shop was his name and immediately underneath his name the words "Veterinary Shoeing Forge." The justices having dismissed the information, an order nisi to review was obtained on the grounds : "(1.) That the order is erroneous and contrary to law and against the evidence and the weight of the evidence. "(2.) That the words Veterinary Shoeing Forge' underneath the defendants name, he not being a registered person, was a contravention of the 23rd section of the Veterinary Surgeons Act 1890, prohibiting the use of the term 'veterinary' in connection with any other name or business." The portion of section 23 of the Veterinary Surgeons Act 1890 material to this report is as follows: : "It shall not be lawful for any person unless registered under this Act to pretend to be or take or use the name of veterinary surgeon or veterinary practitioner or use the term "veterinary" in connection with any other name or business, or to use any other name |
