Smith v Perpetual Trustee Co Ltd and Delohery [1910] HCA 39

148 HIGH COURT (191

H.C. or A. and the statement as to the 28th October was a mere videli ae and even if the videlicet is wrong, the statement is right. Wixcaver prescribed notice has been duly given to pay—the notice in ae form and with the particulars prescribed (see sec. 146 (1) ee Errors such as this are not fatal to the rights of the Council

"The maxims utile per inutile non vitiatur, falsa demonstratio — Higgins. non nocet, quicquid demonstratae rei additur satis demonstratae frustra est (see Broom's Legal Mawims, 7th ed., pp. 468, 470

471), all seem to apply. The error is such as the ratepayer co

detect by an examination of the Act, or of the notice itsel Probably, if an action had been brought on 28th October, the

plaintiff could not have shown that any rate was due on that

date ; but in this case the writ was issued on 30th July 1908,

Appeal allowed.

Solicitor, for appellants, J. D. Y. Button, Coonamble ; Ellis & Button. Solicitors, for respondent, Wilson & Harriott.

[HIGH COURT OF AUSTRALIA.

HENRY CHARLES SMITH . . . . APPELLANT; DEFENDANT, ' axp THE PERPETUAL TRUSTEE CO. LTD. axp) p H.C.orA. ALFRED HENRY DELOHERY Jc 1910. PLAINTIFFS, = Sypsey, August 22, 23, ON APPEAL FROM THE SUPREME COURT OF 25. NEW SOUTH WALES. Griffith C.J.,

batten, Will—Forfeiture clause—Kquitable assignment—Direction to trustees to pay fult Higgins JJ. income to creditor—Power of attorney given to creditor—Assignment for benefit

11 CLR.) OF AUSTRALIA.

of creditors—Intention to assign—Consideration—Revocable mandate to agent— H.C. or A.

Tssue of writ of foreign attachment—Garnishee order.

The appellant was entitled to an interest under the will of his grandfather. The will provided that if the appellant should assign or charge his benefit

others to the defendant D., who was his solicitor. While so indebted the appellant, who was about to leave the State, executed a power of attorney in favour of D., empowering him to demand, sue for, and recover all moneys payable or hereafter to become payable to the appellant by the trustees of the will, for the purpose of liquidating and paying all his debts. The power of attorney contained the usual clause that it should continue in force until notice of death or revocation. 'The appellant also gave D. a letter addressed to the trustees of the will (to whom it was subsequently delivered), informing them that he had instructed D. to pay his creditors out of his income as it fell due, and requesting them to pay to D. all future income or corpus in the estate to which the appellant might be entitled. 'The intention of the appel- lant and D. was that the relationship between them should be that of principal and agent.