By a deed dated 3rd April 1907, made between the trustees of the will of the one part and one of themselves and another person of the other part, which recited the material parts of the will, including the trusts of the fund, and further recited that the trustees of the will would on the execution of the deed by the parties of the second part pay to them the fund of £40,000, it was witnessed that pursuant to the powers and authority in that behalf contained in the will, and to every other power enabling them in that behalf, they nominated and appointed the parties of the second part to be trustees of the legacy or fund. The deed concluded with the following words: - "And this indenture also witnesseth and it is hereby agreed and declared that the said Company and the said John Mackiehan shall hold the said legacy or fund of £40,000 upon the trusts in the said will declared concerning the said legacy or fund as hereinbefore recited or intended so to be and upon no other trusts whatever it being the purpose and intent of these presents only to nominate or constitute trustees of the said legacy or fund to hold the same upon the trusts in the said will declared concerning the same and not to create or affect any new or existing beneficial interests therein." It did not contain any provisions as to commission to be allowed to the trustees, or as to maintenance, advancement or management.

The result was that the same persons remained beneficially entitled to the fund, and to the same extent, as before, but with this change - that the power of appointment conferred on the trustees of the will in the event of any attempted alienation by Mrs. Calvert would have to be exercised by the trustees of the settlement.

The appellant, the Collector of Imposts, claimed that this deed was dutiable under Part VIII. of the Schedule to the Stamps Act 1892 (No. 1274) which reads as follows: -

VIII.

• Settlement or Gift, Deed of -

(1)

Any instrument other than a will or codicil whether voluntary or upon any good or valuable consideration other than a bonâ fide adequate pecuniary consideration whereby any property is settled or agreed to be settled in any manner whatsoever, or is given or agreed to be given in any manner whatsoever, such instrument not being made before and in consideration of marriage.

(2)

Any instrument declaring that the property vested in the person executing the same shall be held in trust for the person or persons mentioned therein but not including religious, charitable, or educational trust.

The Full Court held that the deed was not a deed of settlement or gift within the meaning of the Act, following the previous case of In re Strachan[1], in which Madden C.J., and àBeckett J. held (Williams J. dubitante) that a similar instrument, executed under similar circumstances, was not a settlement, inasmuch as it did not effect any change of beneficial interest.

The Full Court examined at some length the case of Davidson v. Armytage[2] in this Court, and came to the conclusion that that case did not affect the authority of In re Strachan[3]. I agree that Davidson v. Armytage[4] has no bearing upon the present case, but in deference to the learned Judges I will say a few words about that case.

The question for determination in that case was not whether the instrument in question was a settlement as distinguished from gift, but whether an appointment under a special power in a settlement fell within the terms of Part VIII. of the Schedule. In the judgment, as in the argument, the word "settlement" was used in a generic sense, to include any such instrument as therein described. This Court held: (1) following the opinion of the Judicial Committee in Commissioner of Stamps Duties v. Stephen[5] that the word "settlement" as used in the Schedule was large enough to include an appointment under a special power if the context showed that it was intended to be used in that sense; (2) that such a context was found in sec. 28 of the Act, which specifically dealt with such appointments and treated them as settlements; (3) that such an instrument is a settlement although it does not create successive interests and although the appointee would have had an interest (not the same) in the property if the appointment had not been made. In delivering judgment I quoted a dictum of Madden C.J. in the case of Wiseman v. Collector of Imposts[6]. "It" (a settlement) "must create a beneficial interest in some person in whom it did not previously exist"[7]. It was not necessary to express any opinion as to the correctness of that proposition, but I pointed out that, if that were a necessary condition, it was fulfilled, since the appointment in question created a new interest.

This dictum seems to be the foundation of the decision in In re Strachan[8], where, however, it is quoted with the modification: "It must effect some change in the beneficial interest." The words of the Schedule include instruments that would in ordinary language be described as agreements or appointments or gifts rather than as settlements. In the case of an instrument the only operation of which, if any, would be to transfer an interest in property, but which shows on its face that it has not that operation, it may well be that it would not be within the Schedule. But the proposition cannot be used as a canon for determining whether an instrument is a settlement or not. It has often been pointed out that the duty is payable in respect of the instrument, not of the transaction evidenced by it.

The question whether an instrument is or is not within the Act must, in my judgment, be determined by examination of the instrument itself, and not upon extrinsic evidence. In order that an instrument may be a settlement in the ordinary acceptation of that term it is clearly not necessary that the instrument should itself operate as a transfer of the property settled. For instance, in the very common case of a settlement of money, or shares, or stock the transfer is ordinarily not effected by the deed of settlement, which merely declares and defines the trusts upon which the settled property is to be held. Again, in cases in which a trust may be created without writing, an instrument is not the less a settlement in the ordinary sense of the term because the trusts declared by it had been already declared by word of mouth. Nor is it material that the rights declared by the instrument are, so far as regards the effective enjoyment of the property, substantially the same as rights already existing, whether under a previous instrument or otherwise. The rights conferred or declared by the settlement are, in a real and substantial sense, new rights. In the present case the rights under the two instruments are by no means identical.

In my opinion any instrument, which on its face purports to be the charter of future rights and obligations with respect to the property comprised in it, and which contains such limitations as are ordinarily contained in settlements, is a settlement or agreement to settle within the meaning of the Schedule, whether those rights could have been established aliunde or not. If a statement of already existing rights is added as a mere incident to the main operation of the instrument, as in the case of the appointment of a new trustee of an existing trust, this condition is not fulfilled, for in such a case the charter would still be the original settlement. In the present case no one would dispute that, but for the previous settlement made by the will, the instrument in question would be a settlement of the fund. It was so regarded by the testator, who authorized the trustees of the will to make such a settlement. Unless, therefore, the doctrine laid down by the Full Court is sound, it is a settlement in the ordinary acceptation of that term. But as the fund was already settled by the will, it operates as a re-settlement.

In my judgment the only question is whether the instrument falls within the words of the Schedule. If it does, it is a "Deed of Settlement or Gift," and is taxable.

For these reasons I am opinion that the rule laid down by the Supreme Court in In re Strachan[9], and followed in this case, cannot be supported, and that the instrument now in question is a settlement, and is taxable as such, unless it is within the exemption created by sec. 28 of the Act. This point was not raised before or decided by the Supreme Court.

Sec. 28 provides that: "where any person is specially named or described as the object of a power of appointment ... in a will in respect of property on which duty under any Act imposing duties on the estates of deceased persons has been paid, an instrument of appointment ... in respect of such property is not liable to duty."

In my opinion the words "power of appointment" include any authority, in whatever form conferred, to make a disposition of property by deed or other writing in order to give full effect to the will of the testator, and the words "an instrument of appointment" include any instrument by which such a disposition is made. The limits of a special power may be wide or narrow. A re-settlement may be an appointment, although the word "appoint" is not used in it, as in the case of Russell v. Inland Revenue Commissioners[10].

In the present case the authority conferred on the trustees of the will to settle the fund in the hands of new trustees is an authority to make a disposition of property by deed in order to give effect to the will of the testator. It is a limited power to re-settle. Mrs. Calvert is specially named, and her children are specially described, as the objects of the power: the deed in question is an instrument making such an authorized disposition: and, lastly, duty has been paid in respect of the will. All the conditions of the section are therefore fulfilled, and the deed, although a settlement, is on this ground exempt from taxation.

I have had an opportunity of reading the judgment of the Chief Justice. It expresses my views, and I have nothing to add.

The result arrived at by the Full Court of Victoria in this case is correct, and the judgment should be affirmed. But as the reasons which led to that conclusion cannot, in my opinion, be supported, I desire, in deference to the learned Judges of the Supreme Court, to state upon what principles their judgment should be sustained.

The groundwork of the decision of the Full Court is that a document to be a settlement within the meaning of the Stamps Act 1892 "must create a beneficial interest in some person in whom it did not previously exist." In other words, the Court applies the test of the ultimate effect of the transaction having regard to the antecedent rights of the parties, and not the legal effect of the instrument.

But sec. 4 of the Stamps Act 1892 enacts specifically that the duties are to be charged "upon and for the several instruments specified in the said Schedule."

Upon an enactment of a similar character, the Stamp Duties Act 1870, Martin B. in delivering the judgment of Kelly C.B., Channell B., and himself in the case of Limmer Asphalte Paving Co. v. Commissioners of Inland Revenue[11] said: - "In order to determine whether any, and if any what, stamp duty is chargeable upon an instrument, the legal rule is that the real and true meaning of the instrument is to be ascertained; that the description of it given in the instrument itself by the parties is immaterial, even although they may have believed that its effect and operation was to create a security mentioned in the Stamp Act, and they so declare. For instance, if a writing were headed by a recital that the parties had agreed to execute the promissory note thereinafter written, yet if in truth the contract set forth was not a promissory note but an agreement of another character, the stamp duty would be not that of a promissory note but of the agreement. The question, therefore, stamp or no stamp, and if a stamp to what amount, is to be determined upon the real and true character and meaning of the writing. It is sufficient to refer to the case of Rex v. Inhabitants of Ridgwell26 B. & C., 665. to establish this proposition. The argument, therefore, of the learned Solicitor-General, founded upon a supposed estoppel, is without foundation; the true character of the instrument is the matter to be ascertained."

In Rex v. Inhabitants of Ridgwell[13] Bayley J. said: - "Whether the stamp of £1 was the appropriate stamp for this instrument depends on the legal effect of the instrument itself."

What, then, is the real and true character and meaning, or in other words the legal effect, of the instrument? If the dictum in Wiseman v. Collector of Imposts[14] were correct, it would apply to exempt every settlement made under an executory trust where the limitations are stated by the creator of the executory trust. The beneficiary's interest under such an executory trust is the same before as after the trust is executed. It may need ascertainment by interpretation. The instrument which, for instance, in the case of West v. Viscount Holmesdale[15] the House of Lords called and regarded as a settlement in the strictest sense, would not under the logical application of the test in Wiseman v. Collector of Imposts[16] be a settlement at all.

But the instrument by which an executory trust becomes executed is only as Lord Cairns said[17] "carrying into effect through the operation of an apt and detailed legal phraseology, the general intention compendiously indicated by the testatrix."

In Wiseman v. Collector of Imposts[18] the definition of settlement under the bankruptcy law by Cave J. in In re Player; Ex parte Harvey[19], followed in Victoria by Webb J. in Davey v. Danby[20], was relied on. But apart from the special meaning of "settlement" under the Insolvency Statutes, (see per Rigby L.J. in Hubbard v. Hubbard[21]), the important word in the definition referred to is "held," as denoting permanency. The creation of a new beneficial interest in the grantee in In re Player; Ex parte Harvey[22] was beyond question; its nature was the important feature. The illustrations given by Cave J. are distinct to show this. The relevancy of the two cases of In re Player; Ex parte Harvey[23]; and Davey v. Danby[24], to the facts of Wiseman's Case[25] is not easy to discern; and yet apparently the few words in the definition given by Cave J. seem to have started the doctrine which has led to the decision of the majority in In re Strachan[26] and the unanimous decision in the present case.

The real nature of the instrument in question here is unmistakeable. It recites the legacy and trusts of the will, the authority and power of the trustees to settle the fund upon corresponding trusts, and with such usual and necessary clauses as the trustees might think proper, the desire of the trustees to settle it accordingly, the preparation of the instrument under the trustees' direction, and the fact that it contains such usual and necessary provisions as the trustees think proper, and it then witnesses the exercise of the power &c., and that the trustees of the settlement shall hold the legacy or fund "upon the trusts of the will," a compendious incorporation by reference.

True, it declares the purpose and intent of the document only to nominate and constitute trustees of the legacy to hold upon the trusts of the will, and not to create or affect any new or existing beneficial interest therein, but as Martin B. said, that declaration is immaterial if the true character of the document is otherwise; and here it clearly is otherwise. It is studiously worded to effect the full object authorized by the testator and yet, so far as mere verbiage could avail, to avoid admitting a taxable character, in other words, to be a settlement within the meaning of the will, and not to be a settlement within the meaning of the Act. But having the real and substantial nature of a settlement, and falling within the very words of the Schedule, it cannot escape the legal result: Tennant v. Smith[27]. On its face it does settle the property on trustees for the daughter, and does so by the authority of the will from which she primarily derives all her rights. The moment that instrument was executed it became for all practical purposes the new starting point of her rights; it is now in effect the source of the powers and duties of the settlement trustees, and regulates henceforth the relations between them and their cestui que trust. The trusts of the will as such no longer apply to her or her legacy; and although the trusts, which do apply, correspond to the trusts of the will, they are not trusts of the will. The document is, therefore, not a mere appointment of trustees, nor a mere recognition of the trusts of the will, but a separate and independent title deed which answers technically and substantially to the description of settlement as generally understood, as applied to it by the testator himself in repeated terms, and as used in the Schedule to the Stamps Act 1892.

There is one consideration apparent on the face of the Act which appears to me to strongly support the view I have taken. Part VIII. of the Schedule taxes any instrument by which property is either settled or agreed to be settled. If, therefore, there were, first, an agreement to settle property, and afterwards a formal settlement in pursuance of the agreement, both would, on the words of the Schedule, be taxable, the settlement being chargeable notwithstanding the only beneficial interest was already created by the agreement. But sec. 27 (2) especially provides that in such case the formal settlement shall not be taxed if the duty had been paid on the agreement. On the principle of the dictum in Wiseman v. Collector of Imposts[28] sec. 27 (2) was wholly unnecessary. But the instrument here is primâ facie liable to taxation, and if no exemption were to prevail in its favour, would be subject to duty.

It followed naturally from the view taken by the Supreme Court that the instrument was not an instrument of appointment within the meaning of sec. 28 of the Act. And it was regarded by the learned Judges as in contrast with such an instrument. It follows, however, from the opposite view taken by this Court, that on the facts of this case it is an instrument of appointment in favour of a person specially named or described as the object of a power of appointment in a will, and as duty was paid on the property included in the settlement, the exemption provided by sec. 28 arises and leaves the instrument free.

Apart from the authorities which have been cited, this case seems to be simple. At the execution of the deed of 3rd April 1907 the legacy of £40,000, the subject thereof, was paid to the Union Trustee Co. and Mr. Mackiehan, its manager; and it was by the deed agreed and declared that these trustees should hold the legacy upon the trusts in the will declared concerning the same. The deed, therefore, incorporates the trusts declared in the will, so far as they relate to the legacy when severed from the rest of the testator's estate; and the result is the same as if the trusts were all set out, word for word, in the deed. That is to say, the income is to be paid to Mrs. Calvert, a daughter of the testator, for life, or until alienation, and after alienation, upon such trusts for the benefit of the daughter and her issue during her life as the trustees should appoint, or as if she were dead; and then in trust for all or any of her children as she should by deed or will appoint; and in default of such appointment, for her children in equal shares; with power for the daughter to appoint part of the income to a surviving husband. Apart from the Stamps Act 1892, such a deed, the creature of bounty, and containing elaborate provisions for successive interests in the fund, would clearly be called a "settlement," or "deed of settlement," but for one fact - the fact that it is executed under a power in the will. It might have been doubted, but for sec 28 of the Act, whether Schedule VIII. to the Act could refer to subsidiary instruments, such as appointments under a power, and in particular a special power - whether it does not refer only to principal instruments such as create the power. But sec. 28 puts an end to any such doubt; for it specially excepts instruments of appointment made under a special power in a previous settlement or will on which duty has been paid; thereby showing that, but for sec. 28, the instrument would have been included in the Schedule. The exception proves the rule (see also secs. 24 and 27).

The fact is that both Acts, the Stamps Act 1890, and the Stamps Act 1892, impose a tax on instruments - not on transactions (Act of 1890, sec. 32; Act of 1892, sec. 4). The more instruments you want, the more stamps you must buy; and "instrument" means and includes every written instrument (sec. 31 of Act of 1890). The Act of 1890 taxed bills of exchange, receipts for £5 and upwards, conveyances or transfers on sale of any real property, annual insurance licences. The Act of 1892 taxed bills of lading, contract notes, customs entry warrants, &c., exchanges of real property, leases, receipts for £2 and upwards, deeds of settlement or gift - put out tentacles for revenue in all directions. "Deed of Settlement or Gift" is defined under two headings. The first heading seems to relate to settlements or deeds of gift which either transfer or accompany a transfer of property; and the second to declarations of trust by an owner - where he declares that property of his "shall" (thereafter) "be held in trust for the person or persons mentioned therein." Now this deed seems to come under the first heading: "Any instrument other than a will ... whereby any property is settled ... in any manner whatsoever ... such instrument not being made before and in consideration of marriage." This fund is "settled," not "given" straight out. To constitute a settlement, the subject thereof need not be transferred by the instrument itself, as Mr. Guest frankly admitted. The two first precedents of settlements in Davidson are cases of settlements which did not transfer the property, but which recited that the stock or funds or shares or mortgage debts had been transferred in the usual way; and the deed of settlement merely declared the trusts on which they were to be held. I take it that the word "settled" here is used in contradistinction to the word "given"; and that an instrument, which declares the trust on which the fund is to be held on a transference thereof to trustees, is an instrument whereby the fund is "settled." It may be difficult in some cases to say what is the precise boundary line between a gift and a settlement. It appears that a succession of interests is not essential: Davidson v. Armytage[29]. A gift to a married woman for her separate use has been held to be "settled": Kane v. Kane[30], followed in In re Berens' Settlement Trusts; Berens v. Benyon[31]. But we are not called on here to formulate an exhaustive definition; for here is a declaration of limitations in succession of property to be held by trustees.

But it seems that in the Victorian Court a doctrine has obtained currency to the effect that an instrument is not a settlement unless it "create a beneficial interest in some person in whom it did not previously exist." This doctrine was first laid down by Madden C.J. in Wiseman v. Collector of Imposts[32]; and, to judge from the report of the case, there was no argument to the contrary. The document in that case was one of mutual agreement between equitable tenants in common of various pieces of land, partly for division of lands between the parties, and partly for appropriate transfers inter se. It is hard to see how the land could be said to be "settled" by such an instrument. As the learned Chief Justice himself said, in Spensley v. Collector of Imposts[33], Wiseman's Case "relates to a thing which could not be a settlement in any view" The difficulties, and possible disputes, were "settled"; but in no sense could the instrument be treated as a "settlement" of property; so that the actual decision is, no doubt, right. The learned Chief Justice based his dictum on expressions used in the cases of In re Player; Ex parte Harvey[34], and Davey v. Danby[35] - cases decided under the English Bankruptcy Act, and the Victorian Insolvency Act respectively. In the one case it was held that a gift of money outright, and in the other case that a deed of assignment for creditors, was not a "settlement" within the meaning of a bankruptcy section avoiding settlements made within certain times before bankruptcy. Cave J. said[36] that "the transaction must be in the nature of a settlement ... the end and purpose of the thing must be a settlement, that is, a disposition of property to be held for the enjoyment of some other person." I do not think that these words justify the inference of Madden C.J. that, for the purpose of the Stamps Act 1892, there can be no "settlement" unless it "create a beneficial interest in some person in whom it did not previously exist." The sections of the Bankruptcy Acts referred to deal, of course, with voluntary transactions creating beneficial interests which did not exist before; but the Stamps Acts deal with instruments, and stamps on instruments; and any deed such as the present, which is executed on the transfer of a fund to outsiders, declaring, either expressly or by incorporation, the trusts on which the fund is to be held, would be a settlement within the meaning of the first heading of Schedule VIII. The second heading of Schedule VIII. includes under deeds of settlement or gift on which stamp duty has to be paid even a mere declaration of trust - trust for the future - even where there has been no transfer of the fund or property. In the cases which follow Wiseman v. Collector of Imposts[37], counsel for the Collector do not appear to have disputed the dictum of Madden C.J. in that case.

Moreover, there is sufficient indication otherwise in the Act itself that an instrument may be a "settlement" within Division VIII. of the Schedule, even though it do not create a beneficial interest in some person in whom it did not previously exist. As I pointed out during the argument, articles for a settlement are frequently drawn up which state precisely the beneficial interests in property to be settled; and the settlement afterwards prepared adopts precisely the same limitations. If the doctrine of Wiseman v. Collector of Imposts[38] is right, the settlement itself is not a "settlement" within Division VIII. of the Schedule, and could not be charged. But Division VIII. makes both instruments liable to duty ("settled or agreed to be settled"); and sec. 27 (2) qualifies the obligation by saying that where a settlement is made in pursuance of any previous agreement or articles, upon which the duty has been paid in respect of the same property, the settlement is not to be charged with duty. This provision would not have been necessary if the second instrument, which creates no new beneficial interests, were not within Schedule VIII.

Mr. Guest, in his able argument, urged strenuously that this deed is a mere appointment of new trustees; that in every appointment of new trustees of a will there is a declaration that the property shall be held on the trusts of the will; and that this deed could not be a settlement, as it made no change of ownership. But the deed is rather a creation of original trustees under a new instrument. There was no retirement of the trustees of the will. They remained as before; but this fund was taken out of the ring fence of the will, and vested in other trustees. The legal title to the fund was transferred to outsiders. The outsiders hold under what the Chief Justice has aptly termed "a new charter." Then, although the trustees of the deed hold for the beneficiaries referred to in the will, they are not bound by the same trusts in many respects. In order, as I infer, to avoid this very stamp duty, the deed has been drawn without inserting therein any of the usual clauses, powers and provisions which the trustees of the will had power to insert, and the purpose is stated to be "not to create or affect any new or existing beneficial interest therein." No doubt, those who framed the deed thought that they could safely rely on the statutory powers and provisions contained in the various Trust Acts, and on the right of the Union Trustee Company under its Act to charge commission on both corpus and income of the fund, in addition to the commission which they got as trustees of the whole property comprised in the will. But the trustees of this instrument hold the fund freed from the power in the will to apply moneys annually for charity, freed from the power to mortgage for debts or expenses, freed from the provisions that Mr. Whiting should be employed as solicitor and receive full remuneration, freed from the 5 per cent. commission on income which has to be paid to the trustees of the will; and they do not enjoy the powers of investment contained in the will, or the powers of determining what is capital and what is income, and of settling other difficulties. If this were a mere case of appointment of new trustees the "new trustees" (so called) would be subject to all the provisions and enjoy all the powers of the trustees whom they replaced. I am clearly of opinion that this instrument is a deed of settlement within the meaning of Schedule VIII., and that it is therefore primâ facie liable to stamp duty.

But sec. 28 has to be considered. It means that, if duty has been paid on the instrument which creates a special power of appointment, duty need not be paid also on the instrument of appointment. In such a case, there is really only one gift - from the creator of the power to the appointee - although the donee of the power states what the appointee is to take. In other words, where property is settled or given by two steps instead of one, duty is not to be paid twice. Now, duty has been paid on the estate of the testator, Mr. Chirnside, and his will specially named and described Mrs. Calvert and her issue as objects of this power; so that the only question that remains is, is the power conferred by the will to cause this fund to be settled on Mrs. Calvert and her issue, a power of appointment, and is this instrument an instrument of appointment in favour of these objects? That it is a power of appointment appears from Russell v. Inland Revenue Commissioners[39]; and that it is an appointment in favour of Mrs. Calvert and her issue, although trustees are interposed, appears from Kenworthy v. Bate[40]. There is no magic in the word "appoint." I take it that an instrument operates as an appointment if it prescribe or declare the destination of property apart from any right of ownership that the appointor may have.

I concur in the opinion that stamp duty is not payable on this instrument, because of sec. 28.

Solicitor, for appellant, Guinness, Crown Solicitor for Victoria.

[1] 28 V.L.R., 118; 23 A.L.T., 236.

[3] 28 V.L.R., 118; 23 A.L.T., 236.

[6] 21 V.L.R., 743; 17 A.L.T., 251.

[8] 28 V.L.R., 118; 23 A.L.T., 236.

[9] 28 V.L.R., 118; 23 A.L.T., 236.

[14] 21 V.L.R., 743; 17 A.L.T., 251.

[16] 21 V.L.R., 743; 17 A.L.T., 251.

[17] L.R. 4 H.L., 543, at p. 571.

[18] 21 V.L.R., 743; 17 A.L.T., 251.

[20] 13 V.L.R., 957; 9 A.L.T., 163.

[24] 13 V.L.R., 957; 9 A.L.T., 163.

[25] 21 V.L.R., 743; 17 A.L.T., 251.

[26] 28 V.L.R., 118; 23 A.L.T., 236.

[27] [1892] UKHL 1; (1892) A.C., 150.

[28] 21 V.L.R., 743; 17 A.L.T., 251.

[32] 21 V.L.R., 743; 17 A.L.T., 251.

[33] 24 V.L.R., 53, at p. 59; 19 A.L.T., 243, at p. 245.

[35] 13 V.L.R., 957; 9 A.L.T., 163.

[37] 21 V.L.R., 743; 17 A.L.T., 251.

[38] 21 V.L.R., 743; 17 A.L.T., 251.

[39] (1901) 2 K.B., 342; (1902) 1 K.B., 142.