Lists (None yet)

Login to create lists

Tagged (None yet)

Add Tags

Comments (None yet)

Add New Comment

No corrections yet


Lxw Nonets.

Thursday, l>nauAnv 10.

Fui.t. CounT. - Before their honours Sir Charles Lilley, C.J., Mr. Justice Harding, and 3iD\ Justice Mein, at 10.80 a.m. : Paterson v. Kendrick and another, prohibition, rule ubsolute.


Bofore their Honours Sir Charles Lilley, O.J., Mr. Justioe Harding, and Mr. Justico ilein.



Tho Atorney-General, with him Mr. E. M. Lilley (instructed by the Crown law officers) Jor the plaintiff. There was no appearance for the respondents.

Mr. Lilley read tho affidavits of Robert M'Farlaue, James G. Edgell, John H. Tonks, >nd James T. B. Price, and stated that on 6th July last one John Guthrie was the of su hotel in subdivision No. 2, Widgee, and ho applied for the removal of the license to au hotel within subdivision No. 1.

Mr. Justice Hakdinq : Which was dovised

to got over the local option clauses ?

Mr. Lilley : Yes. The Justices refused this application on tho ground that tho hotel to which he proposed to remove this license hud pot been erected. In September, 1887, a local option poll was taken in subdivision No. 1 under the 115th section of the Licensing Act of 1SS5. By a majority of sis votes the {hird resolution stated in that section was parried, and it \ras deoided that no new Ucensos should bo granted in No. 1 subdivision. As a consequence upon this resolution tho 124 th lection waa brought into effect, and under it i'any certificate grantod under this section lhall bo null and void." Guthrio on the 10th of October made another application to tho board, and this was also refused. Boven days later he again applied, and the chairman of the Licensing Board declined to sign the certificate, saying tho local option clause was against it. After this the two respondents, who were members of tho Licensing Board, signed the oortificate, and Guthrie had since carriod on tlio business of a licensed victualler. These two gentlemen altered what tho chairman had done, although ¿ey were amongst the members of tho board whioh had previously rofusod to grant tho ¿censo. Mr. Lilloy, therefore, on the facts,

Îsked that the rule should bo made absoluto, mt stated that ho was instructed not to apply

or costs. i

' The Chief Justice said tho local option »lauses of the Act clearly prohibited this action pn tho part of tho members of tho boat d, and ¿e rule would bo mudo absolute. As costs were not asked for tlioy would not be gi von, bat it would be well for justices or members of boards who attempted to act in tho same way »gain to know that the court would probably Jnnict costs upon them.


Mr. Lilley (instructed bj' Messrs. Roberts <»nd Roberts) for the plaintiffs, Mr. Pain (in- structed by Mr. BornayB), for the defendants.

, Mr. LiLLEYstatedthatintliisaotionthoparties William Joseph Castling and Catherino Miller were tho plaintiffs, and Clara Jane 'Major, ïloronco Euiilyj Major, Berthu Major 'Frederick Johnson were tho defendants, ílaintiffs were tho trustees of tho will of John um. Major, of Townsville, deceased, and do Jeudants-Claru, Florenoe, und Bertha Major were the daughters of the testator, and 'Frederiok Johnson was tho guardian ml Httm. The action was commenced on 25th October, 1887, by a writ of summons, whereby plain jins olaimed for a declaration that they were entitled to sell, lease, or mortgage the real estate 'under the will of John W. Major. The barties bad then iigroed upqn the statement pf the questions of law for the opinion of tho 1' lourfc. Tho deceased died in April, 187S, and eft property whioh was valued at £33,000 lo . lis wife Oathoiiuo Major (now Catherine 'tfillor) and children. Tho property consisted Jif tho Royal Hotel, Townsville, and .two shops adjoining. It was not at present Saleable at the valuation, and tho Licensing

Board had condemned tho hotel and intimated that the licenso would not be renewed fahleas a now building was erected. If Î. new house were bnilt it might bo

eased for £20 per week, hud if now »hops wero constructed a rental of £30 per week could be obtained. If the new hotel wore not erected tho licenso would be lost, and this would ijoriouslyaffectthopkintiff's (CatherineMiller's) income. Mr. Lilley, having read' the will of

the testator, submitted that in the interests of' Î.U parties the court should rulo that tho

rustees had power to sell, lease, ' or mortgago (the estate, or to build or ofl'eot repairs upon it. '

Mr. Paix made no opposition to the claim.

. The following questions wore submitted for 'the opinion of the court, to which tho »nBwers appended were returned :-1. Whether the whole property of thojsaid John Major is lo Jramnin unconverted and undivided until tho ifleath of the plaintiff, Catherino Miller, or Whether the property is to be oonvertod or iivided upon tho youngest or any child attain Jng the ago of 21 years!'-No ; but at tho dis

»retion of tho trustees. 2. Whether or not tho

plaintiffs have the power to soil tho'real estato of the said John Major, or any part thereof ?--Yes. 3. Whether or not tho plaintiffs havo power to leaso the said estate, cr any part thereof, and if bo for what lunn ?-No. i. Whether or not plaintiffs havo power to raiso money on mortgage on '»ny part of the estate, or to build or effect '^repairs in connection with tho snid Royal Hotel »nd shops ?-No, not under the will.

. Mr. Lilley said that these answers prevented ,*n estato worth £33,1)00 from being used.

, Tho CitrEP Justice said, the plaintiffs had a remedy under the Sottled Lands Act, but the court could only interpret tho will as they had done. The costs would come out of the estato. ÍN THE MATTER OP THE LICESSIXO ACT OP 1885


The Attorney-General, with him Mr. V. ?Power and Mr. W. F. Wilson (instructed by the Crown Law officers), for tho responding justices ; Mr. Real, with .him Mr. Litley (in 'itructed by Mossrs. ThjTino and Góortz), for the appellant, Walter Macfarlane.

Mr. Real stated that one William John Leahy, for £1500 and other advances, mort-

gaged to Messrs. Perkins and Co. the furui-, ture, goodwill, stock-in-trade, and licenso of tho Empire Hotel, in Brunswick-street, Forti- tude Valley, of which he was tho licensee. On 80th December the mortgagee, under the powers conferred upon him by the deed of mortgage, took possession for default made in certain money payments. When, under this bul-of-sale, they took possession, Leahy con- tinued to remain in the hotel, and had the control of tho servants. On tho fod of January Perkins and Co. appointed Walter Macfarlane to carry on the business of the Empire Hotel on behalf of John Leahy as tinder the bill-of-sale. By taking possession they stopped Leahy from carrying on tho business although ho was btill remaining on the premises, but under the authority of their bill of-iale they appointed a manager who was really acting for Leahy, the maker of the bill of-sale, and who took the receipts while Leahy Controlled the servants. On the nth of January Macfarlane sold to ono Michael Toohey two glasses of beer, and on being asked what au- thority Macfarlane had to do so, Leahy replied that he sold drink without his consent or Authority. In consequence an information was |aid_ againbt Macfarlane charging him -with *i?v*"^ disposed of intoxicating liquor when at the time ho was nota licensed publican, nor tho T-gent or servant of one. Upon this informa Uou a conviction was sustained, and Macfarlane . was fined £10. The question now for the

«ourt to decide was whether within the meaning °f the 109th section the appellant was a servant or agent of Leahy's. Mr. Real quoted the case of Garret v. the Justices of Mary Jebone, 2 Q.B., div. 620, and argued that jt>eahyTiad no power to revoke the authority ho ¡lad given by the mortgage, and that there was nothin<r to prevent a man from appointing another to manage his business while he was »ere in the way that had been done in this case. That appointment was really made in iieahy's interests, for what was done for tho benefit of the mortgagee necessarily must in »ach a case be for the benefit of the morfc ya8°r- It was simply a quextion of consent on J^ahy s part, and he had given Perkins and u>-authority to appoint an agent for him.

Tho Chief Justice said the question was

whether that authority gavo power to a person I to carry ou that business, whick according to the law ho wai incapacitated from carrying on.

Mr. Real contended that tho power might bo exeraieed by any person to whom Loahy.had delegated it. It was a question as to whether Macfarlane 'was Leahy's agent, and if there was no illegality in such appointment he cer- tainly was, under the authority. "Was ho de- prived of that power by .tho statute ? If so, it waB clear that tho statute did away with much of the rights of tho mortgagee hy restraining him from the protection ot his own interests. Mr. Real submitted that tho mortgage was sufficient for the appointmout of Macfarlane as Leahy's agont, and Leahy's subsequent repu- diation of Macfarlane did not affect the question

at all.

Mr. Lilley, following on the samo side, argued that tho bonch of magistrates when inquiring into the question as to whothor Macfarlane was or was not Leahy's ngenfc, had wandered off on a side issue, as they docidud that ho was not tho keeper of the licensed pre- mises, and fined him accordingly. The exact position of Macfarlane hadnover been inquired into. If Leahy had put him in, ho would havo beou thoro legally, and he would not havo been liable under, Section 109.

The Chief Justioe : But ho was put in by somebody oiso under the power of a bill-ot sale, and the question is as to the lawfulness or unlawfulness of this power.

Mr. Justice ILuiDixa': Suppose ho had put

in a Chinaman ? '

The Chief Justice : Or a blackfellow ?

Mr. Lilley : There's nothing to prevent him making a blackfellow his agent.

The Chief Justiou : The Licensing Board micfht object. '

Mr. Lilley: Why tliero's nothing to pre- vent him having a black barman.

The Chief Justice : Oh, but wq don't speak of tho dignified negro when wo say blackfellow.

Mr. Lilley : But ho is not pievontêd from putting in a blackfellow barman. Tho ques- tion is whother when Muofarlano went into the hotel he was defacto tho occupier of that hotel. J Thoy could not couvict Leahy of permitting nu

unlicensed person to conduct his licensod pro- mises, 'for ho was thcro himself all tho timo, and therefore they could not oouviot Macfarlane. They should have inquired what Macfarlane had done in order to find him guilty of a

breach of the Act.

Mr. 'Justice II.tnm:ra, in delivering the judgment of the Court, said this wns an appeal against the dcoision of the justioes whereby Walter Macfailane was convicted, under the 109th beotion of the Act, as, not being a licensed victualler, he had sold two glasses of beer at the Empire Hotel, of which William John Lsahy was the lessee. Leahy was asked if the sale had boon made with his consent and authority, and ho said it had not. Muofarlano, in order lo justify himself, said ho had sold the beer in consequence of having been ap- pointed under tho authority given to Messrs. Perkins and Co. by the mortgago of tho piemisos. Tho conviction would bo sustained as Macfaimno whs not an agent or servant of Leahy's. Ho would hilve been if tho power contained in tho mortgage could be logally given by a liceiibcd victualler to his moitgngee. Tho power to appoint a porbon to Ret as an agent in the place oí a licensed victualler would be the power to insert in his ' place an un- licensed perron-that was to say, would bo tim power to permit an unlicensed person to bo the keeper of licensed premises absolutely or in effect. To permit such a thing under tho Suth section of tho Act was illegal, und con- sequently any contract or document by which ouo perhon contracted with anothor to give liiui power to do that which, ho could not do hiniHolt-to commit an illegal net, would be au illegality mid void, consequently tho power-of attornoy given under the mottgago purporting to enable the mortgagee to place a person in that position was an illegal power, and tho perron appointed thereunder did not becomo an agent or servant of tho liconsed publican.-,

Thoroforo Macfarlane committed an oilbneo under section 109. Tho conviction was there- fore affirmed, with costs.


ouster. L

Sir S. "W. Griffith, Q.C., with him Mr. Ronl and Mr. Lilley (instructed by Messrs. Thyuno and Goertz) in nupport of the- xulo. Mr. Power, with him Mr. T. J. Byrnes (instruotod by Messrs. Macpherson, Mibkin, and Fee/), ap- peared for the respondent, Robert Porter, to

show causo.

Sir S.^V. GnirriTii staled that this caso arose out of the election for a representative of tho Eastward, in tho muni oipnlity of Brisbano, nt which Mosflrs. Galloway and Porter wore the candidates. The applicant's namo was, William Macnaughton Galloway, and eight voting

papors wero found with thó name " Robert' Potter" struck dut, and with tho names " Wil- liam Macnaughton" orasod, andjtho surnamo was left on. They wero rejected by the ro turiiing-ofncer. The result was that Porter had a majority ol' fivo votes, but if theso other eight votes had boon counted Galloway "would havo had a majority of three. ?There were threo other papers in the saino form which wero also rejected, but tho voter had discovered his orror in time, and had obtained other ballot-papers in lieu of them, and voted for Galloway. The section of the Act under which'tho caso was brought was the 95th. In addition to theso' ballot-papers thoro were two on which tho voter had Bigned his name, and had voted in favour of Galloway. Those papers wera also rejected. Theso, Sir S. W. Griffith said, wero also claiinod by tho appellant, in case ho lost any of tho other eight which thoy


Mr. Powek said the appollants had only filed affidavits in respect ot four of .theso eight votes. In theso lour the surnamo ' ' Galloway" was only left standing on the form, and it was only in regard to those that any evidence of tho intention of the voters was brought.

The CnrEF Justice said they could gather evidence ot tho intention only from tho ballot pirpers themselves.

Sir. Power said that the other side had put in affidavits to show tho intention of four of thcFO eight' persons, and ovidently attached soino importance to it.

Sir S. W. Gramm paid theso four persons said they intended to voto for Galloway, and it might be inferred that the othor four who made the f-arno mistake did the same.

Mr. Power read the affidavit of Blakiston Robinson, presiding-offiecr at tho polling booth at Hunter's Buildings, Elizabeth-street. Mr. Galloway had brought to him a voter named E. Diezman, who stated that ho had intended to vote for Galloway, but had struck out the two first names. Galloway buid Diezman waa willing to make a declaration of his intention, and that ho (the presiding-offiecr) was bound to give him thiee fresh papers if he found tho three which wero in orror in the ballot boxes. He gavo Diezman threo fresh papers, and when tho voter had lecoidcd his vote, he put the papers in an envelope. On counting the papers in the boxes several wore found in which the names " William Macnaughton" wero btruck out, and the name "Galloway" left, while tho name "Robert Porter" was struck out. At tho commencement oí tho voting ho heard Galloway say that if anyone struck out his sui namo and left his Christian name, ho would claim tho voto, as they wero his baptismal and therefore only names. Mr. Power argued that it was quite possible some ignorant persons might have heard Galloway say this, lind as they did! not wish their votes to aipist in his

election, had carefully btruok out the Christian


The Chief Justice: Yes, but they struck out the name of Robert Porter, too.

Mr. Power: Well, I havo not liad much ex- perience in electioneering, but I understand it is a very common thing for electors to strike out both the nnrne.H and writo on the ballot paper " both duffers." (Laughter.)

The Chief Justice : But the statute sayS tho voter shall strike out the name of the eandidato for whom ho docs not wish to vote.

Mr. Power said there were threo votes given by A. Martin in favour of Porter, which, wero rejected because the paper waa signed, and three others were rejected which bore the names

'Galloway" and "Robert Porter" in full.

The Chief Justice said if tho rule was right thoBe papers wero bad, because tho voter had

voted for two men.

Mr. Power: Yes, but thoy clearly showed the man's intention. The question is tho meaning you give to section 70, which states that the christian name and larnamo must be

on tlie ballot-pupor, and section 95 says tho name of the candidato who is not voted for must bo struck out.

Tho Chief Justice : Yes, it means to Btriko out tho ohrislian name and surname.

, Mr. Power : But I maintain that you must striko out the whole, becauso tho candidate's «anio is not " Galloway," and no man of that name was nominated, for his name must mean the whole name. Tho porson nominated waa " William Maonaughton Galloway." If this is not so it will lead to a great deal of confusion. Oases may happen when there are two candi- dates of the same name. Sunposo tliero wore

two " John Smiths "

Mr. Justice Meiîî: Yes; and suppose tho tho two christian names wero struok out and the surnames left.

Mr. Power : Then I would say it was no


The CitiEP Justice : But as a general pro sumption wo must considor that a man who puts his ballot-paper in the bo± intends to voto. Of courso there may bo somo tomfoolory whon men jokingly writ» boiub rubbish on their


Mr. Tower : But I submit tho word "namo", means the full namo, christian and surname, for undor tho Stith olauso the names havo to bo advertised, mid it would be absurd if ' the roturniug-oflioer simply advertised tho persons nominated by their surnames.

The Chief Justioe said it mattered little, because if a voter did not want to vote for a candidato ho must strike out both tho christian and surmimo. '

Mr. Poweb said if the court was in favour of giving theso votos to the applicant, he would ask for au inspection of tho papers under sec- tion 47. Tliero must havo boen some reason for striking out tho " William Maonaughton," and they desired to seo how far tho erasing stroku had boen carried. It might have struok out tho " G" and left the name of " Allaway," and no such person was nominated, or it might huvo gone further and left suoh names as " Loway" or " Owaj-." This might save tho expense of anothor oleotion, as under seotiou Vi if a councillor was ousted by the Supremo Court, tho seat was doolared vacant, and a

fresh oleotion was to bo held.

Tho CniKF Justice said tho court oould call upon the rutiirning-oflicor to mako n fresh ro tuin. Thoy might not bo able to givo relief to Galloway, but ho could movo by mandamus.

Mr. Bykn'ES, also for tho respondent, urged that the only safe way in which tho voters' in- tentions could bo decided, was that if any letter or syllablo of the namo waa btruck out, tho wholo namo must bo regarded as gone, other- wise where was it posbiblo to draw the line and determine how much of a man's name tmiBt bo struok out before the vote was invalid ?

Sir S. W. GiuFrrnt, for tho appellant, oitod the case of Huttou ex parte Smith, Victorian Digest, Wnteihouse and Hutchins, col. 32-1. The court could onlj' review what the roturn ing-officer could havo seen on tho ballot paper. In Hutton'« case, the voter had writton on the paper "Hutton only," and it was hold that his intention was apparent, and in thin caso what would any person infer from looking at tho ballot paper except that tho votor mcaul to volo for Galloway. Jlo went there, intending to vote, and he struck out Porter's name If. the court hold the opinion thut granting the ouster declared tho election void and necessitated a now oleotion, Sir S. AV. Griffith said ho would auk that tho rule should bo modiiiod and made similar to the granting of a quo warranto, so that the applicant could nftorwards obtain a mandamus on the roturning-oilioer to declare

him olectod.

The Chief Justice said there was no doubt that a matter such as this wns a great public fuuotion, and the court should endeavour to do justice on this poiut.

Sir S. W. Gmrrrni said it would bo a manifest injustice it' thore was to bo a sub- sequent election, but if the rulo wore modified to a quo warranto tho marnte mus could follow.

Mr. Justico Hahding said if the rule was mudo absolute the retiuning-oflicor would bo requostod to doclaro the applicant elected, and if ho declined to do éo a mandamus to compol

him could bo muiutaincd.

Tho Ciirnr Justice in delivoiing tho judg- ment of tho Court, said this was a rule undor tho Locul Government Act, part 5, BecHon -lti, calling upon Robert Porter, who had been deolared olootod for the East Ward of the Municipality of Brisbane, to show cause why ho uhould not bo ousted from his office of coun- cillor on Bcvcral grounds. First, that at tho election for tho «aid ward a majority of votos wau polled in favour of William Maouaughton Galloway ; second, that certain votes lawfully rooorded in favour of GuUowuy wera wrong- fully rejectod by the returning-ollicer, and if thby had boon admitted Galloway would havo been elected to tho office of councillor for'tho East Ward, and thore was alöo an application for tho costs of -the rule. Tho question of the validity of thte eleotion and Porter's return as councillor, doponded upon tho offect which ought to bo givcu to certain voting papers sot out in the affidavits ou behalf of the applicant. They wero the usual ballot papers, ooutuiuing tho names of two candidates and nothing more. Tho voters in eight instances struck out completely tho namo of Robert Porter, but in respect of Galloway they struok out onlj' tho two christian names, leaving his surname untouohod. On behalf of Galloway it ,wus contended that these eight votes should have been counted in Ids favour, although thoy wero rejectod by tho returuing-officor. it was clear that in regard to theso eight papers no vote could be cluimed for Porter, as Ids namo was completely btruck out, The " effect of these papers depended upon tho 05th section of Act and upon the manner in which tho voter was to record his vote. The voter received as many ballot-papers na ho wuh entitled to, and without leaving tho room ho was to strikeout from the papers tho name of the candidato for whom ho did not desiró to vote) and tho ballot-paper was then folded up so that ita oontents could not be Boen and put into the box. The judgment of the court there- fore would rest upon what construction they put upon the words "strikeout tho name of each or overy candidate." As ho had said Porter could havo no vote in any of those eight ballot papers, and Galloway had part of his namo loft in. In ordor to deprive a candidato of a vote his Honour thought that tho wholo of his Christian namo and surname must bo struck out. If that was not done it must be recorded as the intention of tho voter to voto

for the man of whose name ho had left a part in the paper. In theso cases the voters said what was equivalent lo " I voto for ' Galloway,' I don't vote for 'Robert Porter.'" Therefore, his Honour thought those eight votes should be retained by the returning-oflicer, and ho also thought no difficulty could ariso if tho rcturuing-ofl'icer followed tho words of the statute. Mr. Power had urgued that to malro a vote of effect tho wholo name should bo loft on the paper ; but his Honour did not think that necessary, as the intention of the voter was indicated by him permitting a substantial por- tion of tho namo to remain. The rule was mude absolute, with costs.

The court then adjourned till 10 a.m. to-day (Thursday).


Before his Honour Mr. Justice Mein.

in Tin: mattee or war.

Mr. W. F. Wilson appeared for the insol- vent, and applied that he should pass his, last examination. There being uo objection on the part of the trusteo tho examination wl» accordingly passed.

Befóte his Honour Mr. Justice Harding.


Mr. W. F. Wilson, on behalf of John Igna- tius Stowart, timber-getter, of Cairns, an in- solvent, applied for a certificate of discharge under section 168, subsection 2, of tho Insol- vency Act. Tho affidavits read showed that the insolvent had been adjudicated as such in 1S80, and the insolvency was attributed to floods having carried away a quantity of timber he had stacked read}» tor the mill. The motion was not opposed by the official trusteo, and the certificate was accordingly granted.


Beforo Mr. Jnstice Harding yesterday the following matters wore dealt with :-Dempsey and another v. Riloy. Mr. Bernays fur the plaintiff, Mr. Brown for the defondant. Mr. Bebxays applied for leave to sign final judgment as per summons. Order : Leave to defendant to defend, statement

of defouco eight days' after statomont of olaim, ' costs to be oosta in the cause. Howes and another v. Rioh. Mr. Armstrong (Messrs. Hart and Flower) for the plaintiffs applied for leave to proceed as if the defendant had boon within tho jurisdiction. Order accordingly. The Curator in Iutostaoy obtnined orders to administer in tho intestate ostates of Thotnaa Doman and Philip Princeps.