Construction-Contract made in Sydney to
purchase goods Goods ordered and shipped
from abroad-Liability of vendor-Delivery.
The plaintiff entered into two contracts with the
defendant in Sydney, one to purchase at a fixed
price per mille certain slates to be shipped from
England, the other to purchase slates at a fixed
price c.i.f.e., to be shipped from America.
The vendor in both cases agreed to pay freight and
insurance, and to pass entry and pay wharfage
on receipt of cheque. Held, that the goods were
at the risk of the vendor until delivered in Sydney.
LORIMER V. SLADE, 5 S. R. 71; 22 W.N. 34.
2.--Formation-Contract not signed or seen
by defendant-Adoption-Evidence of assent. —
The defendant, who was about to build a house,
instructed her architect to draw up the necessary
documents. He accordingly prepared a contract
and called for tenders, accepting a particular tender
under her instructions and informing her of the
fact. The successful tenderer then signed the con-
tract, but the defendant never signed it, and
neither saw it nor enquired as to its conditions.
The house was built and interim payments made by
defendant, who subsequently wrote letters referring
to "the contract," and claiming the benefit of
certain of its conditions as against the contractor.
Held, that there was sufficient evidence to go to
the jury that the defendant had consented to be
bound by the contract although she had not seen
or signed it.
BROWN. BROWN, 5 S. R. 146; 22
W.N. 39.
5. -Mandamus-Costs against magistrate.
See JUSTICES.
Indictment Quarter Sessions Absence of
Crown
Prosecutor.-A Crown Prosecutor has power to
preliminary investigation-Power of
file an indictment at Quarter Sessions in the absence
of a committal or preliminary investigation. R. ".
BAXTER, 5 S.R. 134; 22 W. N. 24.
2. 1900 No. 40, s. 469-Order referring all
claims to Registrar in Bankruptcy to be deter-
mined as if the estate of the offender had been
declared bankrupt under the Bankruptcy Act-
Claim for damages in respect of wrong. By an
order made under s. 469 of the Crimes Act the
estate of an offender was sequestrated, and it was
subsequently ordered that all claims against his
estate be determined and all questions arising
under the bankruptcy be dealt with and decided as
if the offender had been made bankrupt under the
provisions of the Bankruptcy Act of 1898. A
creditor sought to prove in the estate for moneys
alleged to have been stolen by the offender, and his
claim was admitted by the Registrar in Bankruptcy
at the sum of £759 2s. On appeal to the Judge in
Bankruptcy it was contended for the first time on
behalf of the offender that under the order claims
for unliquidated damages arising from a tort could
not be proved, as they were not provable under the
Bankruptcy Act, that the claim of the creditor was
for damages in respect of a wrong, and must,
therefore, be disallowed. Held, that the order was
ultra vires so far as it restricted the right of the
claimant to prove for damages in respect of any
wrong, that the order should be discharged and a
fresh order made in terms of s. 49 of the Crimes
Act, and the amount ascertained by the Registrar
as due to the claimant adopted. Re YOUNG, 5
S R. 38; 21 W.N. 208.
3. -1900 No. 40, s. 131-Irregular verdict—
Illegally using-Offence not known to the
law. The prisoners were charged with stealing
cattle, and the Crown suggested that the jury might
find a verdict of illegally using under s. 131.
Judge told the jury that it appeared to be a case of
larceny or nothing, but directed them as to the
nature of an offence under s. 131, and told them
that if they believed the cattle were only taken to
be used in the manner suggested by the Crown they
illegally using."
might find a verdict of
Held,
jury found a verdict of "illegally using."
that in view of the Judge's direction the jury must
be taken to have found the prisoners guilty of
taking and using without the consent of the
owner," and that the verdict was sufficient although
there was no such offence as illegally using'
technically known to the law. R.. LILLIECRAP,
5 S. R. 425; 22 W.N. 125.
4.- -1900 No. 40, s. 125-Larceny as a bailee
3. Resumption-Land belonging to lunatic-Bailment Authority to collect rents Money
-Costs. See PUBLIC WORKS ACT.
paid into collector's banking account-Deduc-
tions Contract to pay balance to principal-
Fraudulent conversion.-An agent on the author
ity of his principal collected moneys and paid them
into his bank to the credit of his business account
which was at the time overdrawn. He was to pay
certain debts and outgoings of his principal out of
these moneys, and every three months to pay the
balance into her account. He failed to pay his
principal any of the balance, but drew out moneys
from his business account and paid them to the
credit of his private account in another bank and
appropriated them to his own use. Held, that he
was properly convicted of larceny as a bailee.
. SLATTERY, 5 S. R. 294; 22 W.N. 92, 216.
5. —1900 No. 40, s. 502-Procedure-Accused
called upon to plead before close of case for
prosecution Prohibition-Magistrate's costs.—
Where an information was laid under s. 502 of the
Crimes Act, 1900, the accused should not be called
upon to plead until the case for the prosecution has
closed. The procedure as laid down in Ex parte
Wilson (20 W.N. 71) approved by the Full Court.
Ex parte FINLAYSON, 22 W. N. 63.
6. -1900 No. 40, s. 131-Illegally taking
and using Evidence of using Cattle used
as coachers. The prisoners were convicted
of illegally taking and using cattle. The only evi-
dence of using was that they were seen driving the
cattle in question with a beast of their own, which
went quietly, but that on the previous day they
were unable to drive their own beast without using
other cattle as coachers. Held, sufficient evidence
to support the verdict.
R v. LILLIECRAP, 5 S. R.
425; 22 W.N. 125.
(18 Q.B.D. 537) distinguished. R. . MIDWINTER,
5 S. R. 558; 22 W.N. 202.
10 -Exhibit-Withdrawal from jury - The
Judge cannot withdraw an exhibit from the jury.
R.. MIDWINTER, 5 S. R. 558; 22 W.N. 202.
Material statement omitted-Admissibility in
11.-1900 No. 40, ss. 406, 409-Depositions-
evidence. On the trial of a prisoner for the
murder of Mrs. Hanlon her deposition taken by the
committing magistrate was put in evidence under
s. 409. It appeared that whilst Mrs. Hanlon was
giving her evidence she said "I cannot recollect,"
but that did not appear on the depositions. Held,
that as a material part of her evidence had not been
taken down, the deposition was inadmissible. R.
v. JACKSON, 5 S. R. 581; 22 W.N. 206.
12.-1900 No. 40, s. 470-Practice-Evidence
objected to on specific grounds Questions
reserved-Special case-Argument on further
grounds not taken.-At the trial of the prisoner
certain evidence was objected to upon certain
specific grounds, and a special case was stated
setting out the points so taken. Held, that it was
open to the prisoner on the special case to raise
other objections which had not been taken, as to
the admissibility of the evidence. R. r. JACKSON,
5 S. R. 581; 22 W.N. 206.
13.--Crimes Act, 1900 No. 40, s. 420 Receiv
ing-Evidence of guilty knowledge-Convictions
at Petty Sessions. -Previous convictions at Petty
Sessions are admissible under s. 420 on a charge of
5 S.R. 683; 22 W.N. 234.
receiving to prove guilty knowledge. R. e. JONES,
7. Evidence - Cross-examination of pri-
soner-Admission-Proof of evidence given
before magistrate - Depositions. A prisoner
14. Crimes Act, 1900 No. 40, s. 420-Evi-
giving evidence cannot be asked in cross-examina-
tion, even though the object of the cross-examina-dence-Conviction for stealing Proof of previous
tion be only to test his credibility, to admit that
he heard the evidence given by a certain witness
before the magistrate on the committal proceed.
ngs, and that the said evidence was substantially
the same as that given by the same witness at the
trial, without the deposition of such witness being
produced and put in. R. . HOLLIS, 5 S. R. 283;
22 W.N. 83.
8.--Crimes Act, 1900 No. 40, s. 407-Evidence
Wife of prisoner-Charge of assault on wife
Wife a compellable witness.-Sect. 407 of the
Crimes Act provides that in criminal proceedings
the husband or wife of the accused shall be a com-
petent but not compellable witness. Held,
nevertheless, that the wife of the accused is a com-
pellable witness in cases where the husband is
charged with an assault on the wife, and, if she be
too ill to travel, her deposition taken at the police
Court is admissible under s. 409 without proof of
her willingness to give evidence at the date of the
trial. R. v. STOCKS, 5 S. R. 628; 22 W.N. 232.
9.--Admission of immaterial evidence--
Effect of-Direction to jury.-Where immaterial
evidence was admitted, but the Judge directed the
jury to disregard the evidence, held, that the con-
viction could not be set aside. R. v. Gibson
convictions on count for receiving.-A conviction
for stealing is not vitiated by the fact that evidence
of previous convictions was admitted to prove
guilty knowledge on a second count for receiving.
the Judge having directed the jury that the evi-
dence was relevant only to the second count.
JONES, 5 S. R. 683; W.N. 234.
15. Habitual Criminals Act, 1905 No. 15-
Larceny-Cattle stealing.-The offence of cattle
stealing is not included under the heading of
Larceny" in the schedule to the
Criminals Act. R. . MORTON, 22 W.N. 203.
under s. 13 of the letters patent of 29th Oct., 1900.
Sir F. M. Darley issued a commission under the
Great Seal in the name of the Governor which was
signed "F. M. Darley, Lieutenant-Governor."
Sir F. M. Darley had power to sign the document
by virtue of his deputation, but not as Lieutenant-
Governor. Held, that the words "Lieutenant-
Governor were mere words of description, that
it was unnecessary that the words "by deputa-
tion "should be inserted after the signature, and
that the commission was valid. CLOUGH v. BATH,
22 W.N. 152.
2. -Wills, Probate and Administration Act.
1898 No. 13, ss. 125, 126-Life, Fire and
Marine Insurance Act, 1902 No. 49, s 4
Insane patient-Maintenance-Crown debt-
Protected policy.-Payment of a Crown debt
cannot be enforced against the proceeds of a
life policy, which is within the protection
of s. 4 of the Life, Fire and Marine Insurance
Act, 1902. Sums expended for maintenance of an
insane patient out of funds belonging to the
consolidated revenue constitute a debt due to the
Crown. In the Estate of MATTSON, 5 S. R. 562;
22 W.N. 159.
waves sometimes lapping over the bar; (10) that
at high spring tides, with a south-easterly gale
blowing, the waves of the sea ran up the outer
slope of the sandbar and the end of the waves ran
over into the lagoon; (11) that the water in the
lagoon was salt, at any rate at the eastern end,
from the access of sea water; (12) that in 1840 the
lagoon was less exposed to the entrance of the sea
than in recent years; and (13) that the lagoon was
not subject to the ordinary ebb and flow of the tides.
Held, on these findings of fact, that the lagoon was
not an inlet of the sea within the meaning of the
Crown grant, and that there was no reservation
in favour of the Crown of the land within one
hundred feet of the southern shore of the lagoon.
ATTORNEY-GENERAL v. MEREWETHER, 5 S.R. 157;
22 W.N. 50.
Crown Lands Act Amendment Act (1903
No. 15), s. 3 (f)-Applicant for A.C.P.-Holder of
O.C.P.-Transferee-Six months' residence. -The
transferee of an original conditional purchase
cannot apply for an additional conditional purchase
Crown debt-Priority. See BANKRUPTCY. under s. 3 of 1903 No. 15, unless he has resided for
six months on his holding, whether he acquired by
-Negligence-Public road. See NEGLI- transfer before or after the passing of that Act.
In re TE KLOOT, 5 S. R. 422; 22 W.N. 137.
Reservation-Construction-Seashore-High-
water mark-"Creek, harbour, or
By Crown grant, dated the 29th February, 1840,
fifty acres of land were granted bounded on the east
by the sea beach and on the north by the south
margin of a small lagoon or lake, reserving all land
"within one hundred feet of high water mark on
the Sea Coast and on every Creek, Harbour and
Inlet." On the evidence the Court found (1) that
the state of the lagoon was continually varying
according to the conditions of wind and weather;
(2) that the lagoon was more or less permanently
separated from the sea by a sandbar which rose
some feet above the ordinary level of the lagoon
and above high water whether at spring or neap
tide; (3) that after a heavy rainfall the creek or
stream running into the lagoon from the west filled
up the lagoon until the water was nearly on a level
with the top of the sandbar; (4) that when this
was the case a channel was often made artificially
across the bar and the water allowed to run into
the sea; (5) that occasionally the water of the
lagoon made a channel by its own pressure across
the bar; (6) that the water running through the
channel widened and deepened it; (7) that when
the water in the lagoon had run out the channel
was soon closed by the action of the sea and wind
banking up the sandbar; (8) that in recent years
when a channel in the bar was open, the sea water
flowed into the lagoon on some occasions at high
water, the depth of the sea water so flowing in, in
the channel, varying from one foot to two or three
inches; (9) that previously to 1880 there was
rarely or never any inflow from the sea except by
b
2.- -1884 (48 Vic. No. 18), s. 21 (4)-Crown
Lands Acts Amendment Act (1903 No. 15),
ss. 3, 4-Homestead selection area within
suburban area Availability for additional
conditional purchase.-Lands set apart for home-
stead selection within a suburban area are not
available under s. 3 (a) of 1903 No. 15 for addi-
tional conditional purchase, unless a notification
has been issued under s. 4 of that Act, to take such
lands out of the exemption contained in s. 21 (4) of
the Act of 1884. MINISTER FOR LANDS v. HACK, 5
S.R. 124; 22 W.N. 21.
3.-1889 (53 Vic. No. 21), ss. 14, 20-Regu-
lations 3rd June, 1895, r. 79 Application
for A. C. P. by virtue of mortgaged O. C. P.
-Declaration and consent of mortgagee. Where
virtue of an original conditional purchase which
an additional conditional purchase is applied for by
has been transferred by way of mortgage, the
written consent of the mortgagee and the statutory
declaration as to the existence and nature of the
mortgage, required respectively by s. 20 of the
Crown Lands Act, 1889, and Regulation 79, must
The Land
be delivered with the application.
Board has no power under s. 14 to permit them to
be supplied subsequently. HEALY . EGAN, 5 S. R.
107; 22 W.N. 12.
5.—Appeal from Land Board-Disallowance dence that the slander was uttered by the servant
of respondent's application-Re-hearing by Land in the course of his employment or for the defen-
Board. Where one of two rival applicants appeals dants' benefit. AVERY. SYDNEY HARBOUR TRUST
from the decision of the Land Board to the Land COMMISSIONERS, 22 W.N. 54.
Appeal Court from the disallowance of his own
application and does not appeal against the grant-
ing of the respondent's application, the Land Court
in sustaining the appeal cannot direct the dis-
allowance of the respondent's application, but must
remit the whole matter to be re-heard by the Land
Board. HEALY v. EGAN, 5 S. R. 107; 22 W.N. 12.
6. -Appraisement Act, 1902 No. 109, ss. 2,
11 (b)-Application for appraisement-Applicant
excused from residence-Definition of holding.
-An applicant for appraisement under 1902 No. 109
may apply to be excused from residence upon a
holding separate and distinct from that on which
he resides. The term holding as used in s. 11 (b)
of 1902 No. 109 is confined to the land sought to be
appraised and may refer to one or more separate
noldings, i.e., holdings which are not contiguous.
COVENTRY". MINISTER FOR LANDS, 5 S. R. 111; 22
W.N. 18.
7. -Crown Lands Act Amendment Act, 1903
No. 15, s. 17-Married woman--Power to purchase
or lease Crown lands-Original application.
A married woman living with her husband cannot
conditionally purchase or lease Crown lands. The
expression "original application " in s. 17 of 1903
No. 15, means any application for a conditional
purchase, lease, etc., and not an application for an
original, as distinguished from an additional hold
ing. Quare, whether a married woman, being a
holder, may apply under s. 3 of 1903 No. 15. HALL
v. COSTELLO, 5 S. R. 573; 22 W.N. 186.
2. 1901 No. 22, ss. 6, 13-Plea of truth and
public benefit-Method of publication.-To sus-
tain a plea of truth and that it was for the public
benefit that the matter should be published, it is
not necessary to prove that the matter was pub-
lished to the public at large. Publication by
one individual to another in a private and con-
fidential letter may be sufficient. GLISSAN P.
CROWLEY, 5 S. R. 219; 22 W.N. 100.
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4. -1901 No. 22, s. 24-Bankruptcy Act,
1898 No. 25, s. 10 (3)-Arrest-Ca. sa.-Arrest
of bankrupt defendant under judgment in a
slander action-Leave of Judge in Bankruptcy
-Defendant made bankrupt on plaintiff's peti-
tion-Writ issued after insolvency and after
proof of debt.-The plaintiff obtained a verdict
in an action for slander and wrongful dismissal.
On the plaintiff's petition the defendant's estate
was sequestrated. The plaintiff then proved for
his judgment and afterwards issued a writ of ca. sa.
under which the defendant was arrested. Held,
that although the defendant's estate was seques-
trated upon the petition of the plaintiff he (the
plaintiff), by proving his debt under the Bank-
ruptcy Act, was not precluded from the remedy
given by s. 24 of the Defamation Act, of arresting
the defendant on a ca. sa., and further that it was
not necessary to obtain the leave of the Judge in
Bankruptcy before arresting the defendant.
MARTIN . FERRIS, 5 S. R. 287; 22 W.N. 52, 90,
216.
5.--Privilege-Trade protective agency.
Facts affecting the credit of traders—Communi-
cations to subscribers -- Request - Voluntary
communication. - The defendants carried on the
sisted in obtaining information with regard to the
business of a trade protective agency, which con-
credit and financial stability of traders, and com-
municating such information confidentially to the
subscribers to the agency. Held, that a report
upon the financial position of a trader, made to a
subscriber bona fide and upon his express request
to be furnished with information, was made upon
a privileged occasion. Held further, that the
occasion was not the less prima facie privileged,
because the defendants invited enquiry or volun-
teered the information, though their conduct in so
doing was matter for consideration by the jury.
MACINTOSH v. DUN, 5 S. R. 708; 22 W.N. 229.
1901 No. 17-Summons for support
illegitimate child-Dismissal-Subsequent com-
plaint under Infant Protection Act-Res judicata
Mandamus.-The dismissal of a complaint for
the support of an illegitimate child under the
Deserted Wives and Children Act, 1901, is not a
bar to further proceedings against the father of the
child for the same cause of complaint. Ex parte
Nolan (3 S. R. 482) overruled. Quere as to the
effect of a summons dismissed under the Infant
Protection Act, 1904. Ex parte SHUSSLER, 5
S.R. 656; 22 W.N. 227.
Common Law Procedure Act, 1899 No. 21,
s. 102-Federal Judiciary Act, 1903 No. 6,
ss. 56, 64-Right of discovery against Common-
wealth. An order for discovery may be made
against the Commonwealth under s. 102 of the
C.L. P. Act, 1899. BAUME v. COMMONWEALTH OF
AUSTRALIA, 22 W.N. 5, 171.
2. Common Law Procedure Act, 1899 No.
21, s. 102-Right to discovery-Libel action
Before and after declaration.-A party who
brings himself within the provisions of s. 102 of the
C.L. P. Act is entitled to a discovery order as a
matter of right, whether before declaration or after.
MACINTOSH v. DUN, 5 S.R. 99; 22 W. N. 19.
3. Two similar applications. See PRACTICE.
EARLY CLOSING ACT.
1899 No. 38, SS. 7, 21 1900 No. 81,
s. 16-Meaning of "shop" and "shopkeeper"
Auctioneer conducting sale in private house.
-An auctioneer conducting a sale in a private
house does not occupy the house as principal
SO as to constitute him a shopkeeper of the
house, nor is such house a shop within the
meaning of the Early Closing Act. To bring a
shopkeeper within the Act he must be shown to
occupy the shop as principal. Meaning of "shop
and "shopkeeper " considered. Quare, whether
an auctioneer is a shopkeeper. Ex parte MACKAY,
22 W.N. 53.
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DISTRICT COURT.
District Court Act, 1901 No. 4, s. 108 (3)-
Appeal Judge's notes-No note of point of law-
Nonsuit. A District Court Judge, on a point
raised by himself, nonsuited the plaintiff. On
appeal the only note of the point was an endorse-
ment on the back of the original summons made by
the Judge," Plaintiff nonsuited." The Full Court
held that there was nothing to show on what
grounds the nonsuit was granted and dismissed
the appeal. HUTCHINSON v. HALE, 22 W. N. 26.
2. District Courts Act, 1901 No. 4, s. 108-
Appeal-Rule nisi-Security- Time to give-
Restoring case to list. Where the rule nisi is
silent as to security for costs of the appeal, the
appellant may give security at any time before
hearing. If security has not been given before the
case comes on for hearing it is in the discretion of
EMPLOYERS' LIABILITY ACT.
1897 No. 28, s. 6-Leave to proceed with
action-No notice given-Reasonable excuse-
Mistake as to the person liable-Delay.-An ap-
plication under s. 6 for leave to proceed in an
action on the ground that the applicant was, during
the time within which notice might have been
given, unaware that the respondent was liable was
dismissed on the ground of delay in making the
application. In re BAXTER, 22 W.N. 150.
Royal Commissioners' Evidence Act, 1901
No. 23, ss. 3, 8-Summons to attend at time
specified, and from day to day-Service of
summons after time specified. A witness was
served with a summons under s. 3 of 1901 No. 23,
calling upon him to attend at 10.30 a.m. on May
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