SUPREME COURT. CHERRY AND ANOTHER v. NA- FQUITY. either for the proceeds of the said sale with interest thereon from the time of sale at the rate of eight per cent. per annum, or at such higher rate as might have been obtained by the said corporation for any balance of the said purchase-money not paid at the time of sale, together with a reasonable sum for the detention and use of the said ship." The prayer is, "That it may be declared that the aforesaid seizure and sale was illegal, and that certain specified accounts may be taken." Now the contention of the plaintiffs is, that a transaction of this kind is struck at by the Act of Parliament, under which the defendants are incorporated, and they rely upon the 7th section of the said Act. That section provides that it shall be lawful for the corporation to take and hold, but only until the same can be advantageously disposed of, for reimbursement only, and not for profit, any freehold or leasehold lands and hereditaments, and any real estate, and any merchandise and ships which may be taken by the said corporation in satisfaction, liquidation, or discharge of any debt due to the said corporation, or in security for any debt or liability bona fide incurred, or come under previously, and not in contemplation or expectation of such security. And I am disposed to say that the evidence given on the hearing of this case strongly inclines me to the opinion that the mortgage in question was given for a present advance, and that the giving of the mortgage of the ship was an item of stipulation in the agreement for the advance of the £12,000. It would therefore follow that the mortgage under the circumstances was ultra vires the Bank; and, adopting the principles laid down by Wood, V.C., in the case of Orr v. Dickenson, 28 L.J., Chan., p. 516; and also 1 Johnson, p. 1, it would seem to follow that, notwithstanding the Bank registered their mortgage at Kirkcaldy, in Scotland (the home port of the ship), yet they did not become registered mortgagees within the meaning of the Merchant Shipping Act, 1854, any more than a person claiming under a forged mortgage, though registered, could be a registered mortgagee, and consequently that (notwithstanding the sale) the legal estate of the ship still vested in the plaintiffs. These startling consequences suggest another important question-Was it competent for the Local Parliament to place the restrictions contained in section 7 of the Act upon the Bank? The 37th section of the Merchant Shipping Act, 1854, SUPREME COURT. CHERRY AND ANOTHER V. NA- EQUITY. provides that bodies corporate may be registered as owners by their corporate name. It further, by s. 66, 67, 68, 69, 70 prescribes the conditions upon which ships or shares in them can be mortgaged; and by s. 71, enacts that every registered mortgagee shall have power absolutely to dispose of the ship or share in respect of which he is registered, and to give effectual receipts for the purchasemoney. By the 547th section of the Merch ant Shipping Acts, 1854 the legislative authority of any British possession shall have power by any Act or Ordinance, confirmed by Her Majesty in Council, to repeal wholly or in part any provisions of this Act relating to ships registered in such possession; but no such Act or Ordinance shall take effect until such approval has been proclaimed in such possession, or until such time thereafter as may be fixed by such Act or Ordinance for the purpose. Now, it would seem to me that matters stand thus - The Imperial Act (Merchant Shipping Act, 1854) provides that a mortgage in the form prescribed by the Act executed by the owner of the ship, and properly registered by the mortgagee, shall vest in such registered mortgagee power absolutely to dispose of the ship; the local Act, however, declares the corporation incapable of being a mortgagee. No mere registration could confer on them the character of mortgagees; therefore the corporation were never registered mortgagees, and consequently had no power to sell or otherwise dispose of the ship. Fortunately for me, it is not necessary that I should decide the above question, nor the effect, the Validating Act, 28 and 29 Vict., c. 63 would have upon it. I shall, however, assume for the purposes of this judgment that the £12,000 was granted in expectation and anticipation of the mortgage, and that such mortgage was therefore void. Looking at the record, it seems to me that the plaintiffs' case is in reality a mere claim for compensation for the unlawful seizure and conversion of their ship by the defendants. The plaintiffs' counsel, however, argued very stoutly that the plaintiffs had abundant grounds for the equitable relief prayed for by their bill. They insisted that they brought the plaintiffs' case under the equitable heads of fraud, account, and discovery, or some or one of them. I confess, however, that I was unable to acquiesce in the learned counsels' views as to the plaintiffs' title to relief-First, as respects account, they show no case of complication of accounts, not even SUPREME COURT. LAWSON V. HILL. COMMON LAW. mutual accounts, and certainly cannot set up any confidential relation between themselves and the defendants, whom they describe as trespassers and wrong-doers. In my opinion, therefore, the accounts between the plaintiffs and defendants could as well be taken at law as in equity. Then it was contended that taking such a mortgage by the Bank was a fraud on the Act. No doubt upon a properly framed Bill, where the purchasers of the ship were made parties, praying that the mortgage might be declared null and void as a fraud upon the Act, and that it might be delivered up to be cancelled, this Court would have interposed. But even then it appears to me that the plaintiffs could have the assistance of this Court upon the terms only of offering to pay back the £12,000 and interest. Then, with regard to discovery, there is not a single statement, averment, or suggestion in the bill that the plaintiffs required discovery. And certainly they could not have it against the corporation, nor could they have discovery as against a witness; and if they had desired it against the corporation, they should have made Mr. Young or some other officer of the corporation, a defendant to the suit. In my opinion the bill shows no case remediable ¡n equity, and it must therefore be dismissed; but as the defendants have answered, and thus compelled the examination of witnesses and the hearing of the cause, it will be without costs. Where rent is made payable at a particular place, or in default right of re-entry, on default made, no demand is necessary before reentry. The action was in trespass. The plaintiff was defendant of the land the subject of the action. tenant of the The rent was SUPREME COURT. LAWSON V. HILL. COMMON LAW. payable at Langhorne's Creek, and in default of payment for thirty days the defendant had a right of re-entry. Default was made, and the plaintiff having shut up and left the premises, the defendant took possession without making any demand of the rent. On action brought in the Local Court of Strathalbyn, a verdict was found for the plaintiff. A rule nisi to set aside the verdict having beeu obtained, Way, for the plaintiff, showed cause.-There was no demand made for the rent, and therefore, there being no words in the agreement dispensing with it, ejectment could not be maintained, and the eviction would be unlawful Woodfall's Landlord and Tenant, 293, 295, 296, and 872. Stow, Q.C., for the defendant. Supposing the entry to be proved, it would not amount to a breach of the agreement. The act of the defendant would be authorized, because the plaintiff had broken his agreement formerly. Throughout it was admitted the rent had not been paid. Then the defendant, as lessor, acted upon the breach of the agreement, and entered the land, and yet the jury, in the face of that, were directed that the whole proceeding was unlawful, and gave damages to the extent of £40. The quotation from Woodfall was inapplicable, there being a certain place fixed for payment of the rent, which dispensed with any demand. Cur. ad. vult. 16 December HANSON, C.J.-This was an appeal from the judgment of a Local Court. The question was whether the defendant Lawson was liable in an action of trespass for wrongful entry upon the premises in question. They had been demised by written agreement for a term of years to Hill; but as the agreement was not under seal, there having been payment of rent, it operated only to create a yearly tenancy upon the terms of the agreement. The agreement provided that the rent should be paid at a particular place, Langhorne's Creek, and that if the rent was not paid in thirty days the SUPREME COURT. { WARREN V. NORTHERN INSURANCE COMMON LAW. COMPANY. landlord should re-enter and take possession. It appeared from the evidence of the plaintiff that he had left the premises, shut them up, and gone to live at a distance, and that he would not be back from there until the thirty days had expired, and the defendant had taken possession. We think, the rent being made payable at a particular place, a formal demand was not necessary, and that the defendant was entitled to a verdict. There will therefore be a new trial. Rule absolute. HANSON, C.J., GWYNNE, J., WEARING, J.] 20, 21 JULY, 16 DECEMBER, 1870. [COMMON LAW. WARREN V. NORTHERN INSURANCE COMPANY. INSURANCE POLICY.-Condition precedent-Waiver-Questions for jury. Where a policy of insurance required certain particulars of property destroyed to be given by the insured as a condition precedent to his recovering, the question of the sufficiency of these particulars— there being no conflict of evidence on the point is one of fact for the jury and not of law for the Court. A policy of insurance provided that persons insured sustaining damage by fire should within fifteen days from the date of the fire deliver an account, stating the loss or damage as particularly as the nature of the case would allow, and should make proof by declaration, &c., and that until such declaration, &c., were produced, the insurance money should not be recoverable. No sufficient particulars were sent within fifteen days, and afterwards a form of particulars required, and declaration were sent by the defendants to the plaintiff for him to fill in and declare, and other particulars were afterwards asked for by the Company and furnished. Held.—That the delivery of the particulars and declarations were conditions precedent, which, however, had been waived in point of time. That the sufficiency of the particulars was a question for the jury. THIS was an action on a policy of insurance against fire. The cause had been tried before HANSON, C.J., at the June Civil Sittings, when a verdict was entered for the plaintiff, the questions of law being reserved for the Court. The principal point was |