Sydney Morning Herald (NSW : 1842 - 1954), Monday 30 May 1887, page 4


LAW REPORT.

SUPREME COURT-Saturday, May 28.

' In Raneo.-(Rtfort thñr Ronan the Chief Justice, Mr. Justice Faucett, and Mr. Justice Issues.)

THE OFFICE OF ATTOKXEY-OEKBKAL.

c '- Mr. B. R. Wise reported to the Court that he had

accepted the appointment to the office of Attorney-General.

The CmbfJubtioesaid that the Bench desired to offer their congratulations to Mr. Wise upon his appointment to the very high office he had been called upon to fill.

ADMISSION OF A BARRISTER.

Mr. O'Connor moved the admission of Mr. Frederick R. Barlee, M.A. of the Sydney University, to the Bar of the Supreme Court of New South Wales.

The application was granted.

ADMISSION OF ATTORNEYS.

The following gentlemen who had passed the necessary examinations were admitted to practise as attorneys of the Supreme Court John Alexander Cormack, Henry Oliver Heath, Thomas Hughes, Neville Wharncliffe Montagu, Walter George Parish, M.A., Charles William Schroder, James Campbell Thorn, and James Francis Thomas.

CONDITIONAL ADMISSIONS.

The following gentlemen were conditionally admitted for a period of 12 months, to practise as attorneys of the Supreme Court George Joseph Blackwell, a solicitor of the Supreme Court of Judicature, Ireland; William Davies Downing, solicitor of the Supreme Court of Judicature, Enchina: Alexander Matheson, writer to the Signet; Richard George Cameron Roberts, solicitor of the Supreme Court of Judicature, England; Michael Joseph Nugent Ryan, solicitor of the High Court of Judicature, Ireland ; James Cleeland Shaw, solicitor of the Supreme Court of Victoria; and Walter Wild, solicitor of the Supreme Court of Judicature, England. The conditional admission of John Dighton was extended to the last day of the

Term, after next.

CONFIRMATION.

On the motion of Mr. Gregory Walker the conditional admission of Archibald George Mackenzie Friend was confirmed.

RE WILLIAM B. DWYER.

Dr. Coghlan moved that William E. Dwyer be admitted to practise as an attorney of the Supreme Court. It appeared, however, that the applicant in question had not strictly complied with the rule of Court, which directed that notice of his intended application should be " three several times published " in two newspapers of Sydney, and that he had merely advertised twice in one newspaper and once in another, whereas according to the interpretation placed upon the rule by the Bench the notice should have been

published three times in each of two newspapers.

Dr. Coghlan said that the construction placed upon the rule by his client was the some as that adopted in the cases of Mr. Gillespie and other applications within his knows ledge, and it had not been challenged, although he himself

agreed with the opinion of the Bench.

The Chief Justice said that the Prothonotary knew of no such case as that alluded to, but the learned counsel was right about the case of Mr. Gillespie. The matter was not brought to the attention of the Court, or the chief clerk of the Supreme Court. The fact was that in that case there had been an inadvertence The chief clerk did not notice it. Counsel thought that it was right, and Mr. Gillespie had been admitted, although he did not conform to the rule in question.

Dr. Coghlan: That is not the only case.

The Chisjp Justice said that the attention of the Court had not been called to it. Mr. Dwyer might be admitted as a solicitor of the Court, but it must be announced distinctly that he had put a wrong construction upon the rule, and in no future instance would a compliance with the rule such as he had adopted be taken as a proper compliance. Under the circumstances, the Court thought that the rule might be departed from in this instance, but it must not be taken as a precedent. The rules of the Court must be strictly

conformed to.

Before their Honors the Chief Justice, Mr. Justice

Innes, and Mr. Justice Stephen.)

THE QUBBIT v. WHITE.

Mr. Salomons, Q.C., and Mr. Gordon, instructed by Mr. W. T. A. Shorter (for Hindmarsh and Mayne, of Inverell), appeared, on behalf of the prisoner, to move to make absolute the rule nisi to quash the conviction. Mr. Rogers, instructed by the Crown Solicitor, appeared to show cause in support of the conviction. The prisoner, George Edwin White, was tried at the last Armidale Circuit Court, before Mr. Justice Faucett and a jury of 12, on an indictment charging him with having stolen a bullock, the property of Thomas Cook, and upon a second count with having received the bullock knowing it to be stolen. The evidence of stealing was conclusive, but it was contended by Mr. Gordon, counsel for the prisoner, that there was no evidence of ownership to go to the jury, and the point was reserved for the consideration of the Full Court. Prisoner was found guilty of stealing; and was sentenced to three years' imprisonment with hard labour.

Mr. Salomons contended that even admitting that the bullock was stolen there must also be proof that the bullock was stolen from the person whose name was mentioned in the information, namely, Thomas Cook, and if the property was not proved to be Cook's, then, although it be stolen, the conviction could not stand. There was no evidence

that the animal ever belonged to Cook, and supposing that that that point had not been raised at all there was no positive evidence that the animal was notions of a numerous herd which Cook had sold. He cited Queen v. Isaacs, 6 Supreme Court Reports, page 371 ; Queen v. Walker, 4th edition Wilkinson's Magistrates' Cases," page 708: Queen v. Law, 9 Supreme Court Reports, page 310: and Queen v. Kennedy, 3 Supreme Court Reports, page 165.

Mr. Rogers submitted that there was ample evidence of ownership to go to the jury, and all the cases which had been cited depended upon their particular circumstances. In the case of the Queen P. Law, the case turned upon the point whether the animal was stolen at all. The case of the Queen v. Kennedy he considered to be in his favour, and the case of the Queen v. Walker had really no bearing upon the case.

The Chief Justice said that, although the evidence was very slight as to the question of ownership, there was sufficient to go before the jury. The history of these cattle seemed to be that four years ago the prosecutor Cook bought 400 from the Bank of New South Wales, upon which he fixed his own brand. He did not think that it could be contended that the bullock which was stolen did not form one of the lot which had been originally bought by Cook, but it was said, in order to destroy the evidence of identity, that Cook had sold some of these cattle under two different qualifiestion, some being fat and others store cattle, and that inas-much as it was not possible to say that this beast was not old by Cook, it might have been one of the cattle so sold, and the prisoner ought to have had the benefit of the doubt. Cook, however, stated, that he never sold any fat or store cattle but those he sent to Melbourne, and the only fair interpretation upon that was that both the fat and store cattle were sent to Melbourne, and that being so, taken in connection with the evidence given by Cook in crossexamination, that he did not think it was possible that the beast could have been sold, he thought there was evidence for the jury to base the conclusion they had come to upon. It seemed to him that it would have been impossible for his Honor to have taken the case from the jury on that evidence, and the conviction must be sustained.

Mr. Justice Innes thought that there was quite sufficient prima facie evidence for the purposes of this case that the animal once was Cook's, and there was no evidence to show that it might not have been one of those sold. The strong point in the evidence was contained in the passage read by his Honor from Cook's evidence, namely, that all the

cattle he sold went to Melbourne.

Mr. Justice Stephen also thought that there was sufficient evidence of ownership to justify the conviction.

The rule was discharged and the conviction uphold.

(Before their Honors Mr. Justice Faucett, Mr. Justice

Innes, and Mr Justice Stbpubk.)

RE CARL PAUL V. O'DONNELL AND BUSCH.

Mr. Salomons, Q.C., and Mr. O'Connor, instructed by Messrs. Creagh and Williams, appeared to move to make absolute a rule nisi to set aside an award in the above matter and Mr. C. B. Stephen, instructed by Messrs. Norton and Co., appeared to show cause. The facts out of which the dispute between the parties arose were that the applicant, Carl Wahl, trading as Rabone, Feez, and Co., sold to M'Donnell and Busch about 2000 casks cement, which, however, the latter refused to accept on the ground that the cement was not merchantable. The whole question was then referred to the arbitration of Messrs. A. W. Gillies, T. A. Strickland, and R. C. Webster, who made an award in favour of M'Donnell and Busch. That award was subsequently referred back to the arbitrators to fill up certain omissions, and these having been supplied the award was again forwarded by the arbitrators. It was now sought to set aside the award as finally made on several grounds, but mainly on the ground that it had not been executed by the arbitrators at the same time, in the presence of each

other.

The matter was partly argued, and adjourned until the first day of next term, and in the meantime execution of

the award was stayed.

The Registrar's report, published in Friday's issue in reference to suits Nos. 26 and 27 against the Tyburnia, in Admiralty, should read " Debt and costs of suit to be taxed and paid in full." The words paid in full were accidentally omitted when the report was drawn up.