Hay v Dalgety and Company Ltd [1907] HCA 5

4 OLR.) OF AUSTRALIA. 913

{HIGH COURT OF AUSTRALIA.]

LANG stesia bs y A , 4 F -. . APPELLANT; PLAINTIFF, a AND DALGETY & COMPANY LTD. : 7 . RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA,

Practice—Trial with a jury—Cause " heretofore within the cognizance of the Court H. C. oF A.

in its Nquitable Jurisdiction"—Action for damages for breach of covenant— 1907. Mortgagor and mortgagee—Prolonged. examination of documents or accounts— ~— Rules of Supreme Court (Vict.) 1884, Order XXXVI, rr. 3, 4, 5, 6,7. MELBOURNE,

March 25, 26. A plaintiff alleged in his statement of claim, that, by a covenant ina mort-- gage deed between himself as mortgagor and the defendants as mortgagees, bare the defendants covenanted not to realize on the mortgage security until they O'Connor ané had realized on the security of a prior mortgage between the same parties eins JJ. given to secure the same debt, and that the defendants had committed a

breach of such covenant, and he claimed damages for such breach.

Held, that the cause was one "heretofore within the cognizance of the Court in its Equitable Jurisdiction," within the meaning of Order XXXVL, r. 3 of Rules of the Supreme Court 1884, and therefore that the action must be tried before a Judge without a jury, unless the Court otherwise ordered.

Per Griffith C.J.i—The words " any prolonged examination of documents or accounts" in Order XXXVI, r, 5, refer to an examination by the jury.

Decision of the Full Court affirmed, but on a different ground.

AppEAL from the Supreme Court of Victoria.

An action was brought in the Supreme Court by Adam Hay against Dalgety & Company Limited, in which the plaintiff by his statement of claim made the following allegations :—That by an indenture dated 4th April 1889 made between the plaintifi

HIGH COURT (1907.