Brisbane Courier (Qld. : 1864 - 1933), Thursday 16 February 1888, page 3


SUPREME COURT.

Lxw Nonets.

Thursday, insular 10.

Fruit. CounT. - Before their honours Sir Charles Lilley, C.J., Mr. Justice Harding, and 3RD Justice Mein, at 10.30 a.m. : Paterson v. Kendrick and another, prohibition, rule absolute.

MONTHLY FULL COURT.

Before their Honours Sir Charles Lilley, C.J., Mr. Justice Harding, and Mr. Justice Mein.

atTEEIi V. CHIPPENHAM AND COWELL. PEO

KITION.

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

Mr. Lilley read the affidavits of Robert McFarlane, James G. Edgell, John H. Tonks, and James T. B. Price, and stated that on 6th July last one John Guthrie was the licensee of an hotel in subdivision No. 2, Widgee, and he applied for the removal of the license to an hotel within subdivision No. 1.

Mr. Justice Harding Which was devised

to got over the local option clauses ?

Mr. Lilley : Yes. The Justices refused this application on the ground that the hotel to which he proposed to remove this license had not been erected. In September, 1887, a local option poll was taken in subdivision No. under the 115th section of the Licensing Act of 1885. By a majority of six votes the third resolution stated in that section was married, and it was decided that no new licenses should be granted in No. 1 subdivision. As a consequence upon this resolution the 124 the lection was brought into effect, and under it any certificate granted under this section shall be null and void." Guthrie on the 10th of October made another application to the board, and this was also refused. Seven days later he again applied, and the chairman of the Licensing Board declined to sign the certificate, saying the local option clause was against it. After this the two respondents, who were members of the Licensing Board, signed the certificate, and Guthrie had since carried on the business of a licensed victualler. These two gentlemen altered what the chairman had done, although they were amongst the members of the board which had previously refused to grant the license. Mr. Lilley, therefore, on the facts,

asked that the rule should be made absolute, He stated that he was instructed not to apply

or costs.

The Chief Justice said the local option clauses of the Act clearly prohibited this action on the part of the members of the board and the rule would be made absolute. As costs were not asked for they would not be given, but it would be well for justices or members of boards who attempted to act in the same way again to know that the court would probably Jnnict costs upon them.

RAMPLING AND ANOTHER V. MAYOR AND omits.SPECIAL CASE. '

Mr. Lilley (instructed by Messrs. Roberts and Roberts) for the plaintiffs, Mr. Pain (instructed by Mr. Bernays), for the defendants.

Mr. LiLLEYstatedthatintliisaotionthoparties William Joseph Castling and Catherine Miller were the plaintiffs, and Clara Jane 'Major, Florence Emily Major, Bertha Major Frederick Johnson were the defendants, Plaintiffs were the trustees of the will of John um. Major, of Townsville, deceased, and doJeudants-Claru, Florence, and Bertha Majorwere the daughters of the testator, and Frederick Johnson was the guardian ml Httm. The action was commenced on 25th October, 1887, by a writ of summons, whereby plaintins claimed for a declaration that they were entitled to sell, lease, or mortgage the real estate under the will of John W. Major. The parties had then agreed upon the statement of the questions of law for the opinion of the 1' course. The deceased died in April, 1878, and left property which was valued at £33 000 To his wife Catherine Major (now Catherine 'Miller) and children. The property consisted of the Royal Hotel, Townsville, and two shops adjoining. It was not at present Saleable at the valuation, and the Licensing

Board had condemned the hotel and intimated that the license would not be renewed fables a new building was erected. If a. new house were built it might be

eased for £20 per week, and if now shops were constructed a rental of £30 per week could be obtained. If the new hotel were not erected the license would be lost, and this would ijoriouslyaffectthopkintiff's (Catherine Miller's) income. Mr. Lilley, having read the will of

the testator, submitted that in the interests of' all parties the court should rule that the

trustees had power to sell, lease, or mortgage (the estate, or to build or effect repairs upon it. Mr.

Paix made no opposition to the claim.

The following questions were submitted for the opinion of the court, to which the answers appended were returned 24. Whether the whole property of the said John Major is to Jramnin unconverted and undivided until the death of the plaintiff, Catherine Miller, or Whether the property is to be converted or divided upon the youngest or any child attain-ing the age of 21 years No ; but at to the

erection of the trustees. 2. Whether or not the

plaintiffs have the power to sell the real estate of the said John Major, or any part thereof it-Yes. 3. Whether or not the plaintiffs have power to lease the said estate, or any part thereof, and if so for what lunn No. i. Whether or not plaintiffs have power to raise money on mortgage on any part of the estate, or to build or effect 'repairs in connection with the said Royal Hotel and shops No, not under the will

Mr. Lilley said that these answers prevented an estate worth £33,00 from being used.

The CitrEP Justice said, the plaintiffs had a remedy under the Settled Lands Act, but the court could only interpret the will as they had done. The costs would come out of the estate. IN THE MATTER OF THE LICENSING ACT OF 1885

AND RE WALTER MACFARLANE.

The Attorney-General, with him Mr. V. Power and Mr. W. F. Wilson (instructed by the Crown Law officers), for the responding justices ; Mr. Real, with him Mr. Lilley (in'structed by Messrs. Thynne and Goertz), for the appellant, Walter Macfarlane.

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

to Messrs. Perkins and Co. the furniture, goodwill, stock-in-trade, and license of the Empire Hotel, in Brunswick-street, Fortitude Valley, of which he was the licensee. On 30th 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 bill-of-sale, they took possession, Leahy continued to remain in the hotel, and had the control of the servants. On the food of January Perkins and Co. appointed Walter Macfarlane to carry on the business of the Empire Hotel on behalf of John Leahy as under the bill-of-sale. By taking possession they stopped Leahy from carrying on the business although he was still remaining on the premises, but under the authority of their billof-iale they appointed a manager who was really acting for Leahy, the maker of the billof sale, and who took the receipts while Leahy Controlled the servants. On the nth of January Macfarlane sold to one Michael Toohey two glasses of beer, and on being asked what authority Macfarlane had to do so, Leahy replied that he sold drink without his consent or Authority. In consequence an information was laid, against Macfarlane charging him with *i?v*"^ disposed of intoxicating liquor when at the time he was not a licensed publican, nor the agent or servant of one. Upon this informa-Uou a conviction was sustained, and Macfarlane was fined £10. The question now for the

court to decide was whether within the meaning of the 109th section the appellant was a servant or agent of Leahy's. Mr. Real quoted the case of Garret v. the Justices of MaryJebone, 2 Q.B., div. 620, and argued that jt>eahyTiad no power to revoke the authority he had given by the mortgage, and that there was nothing to prevent a man from appointing another to manage his business while he was were in the way that had been done in this case. That appointment was really made in Leahy's interests, for what was done for the benefit of the mortgagee necessarily must in such a case be for the benefit of the moreyass- It was simply a question of consent on July s part, and he had given Perkins and u>-authority to appoint an agent for him.

The Chief Justice said the question was

whether that authority gave power to a person I to carry on that business, which according to the law he was incapacitated from carrying on

Mr. Real contended that the power might be exercised by any person to whom Leahy 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 certainly was, under the authority. "Was he deprived of that power by the statute ? If so, it was clear that the statute did away with much of the rights of the mortgagee by restraining him from the protection of his own interests. Mr. Real submitted that the mortgage was sufficient for the appointment of Macfarlane as Leahy's agent, and Leahy's subsequent repudiation of Macfarlane did not affect the question

at all.

Mr. Lilley, following on the same side, argued that the bench of magistrates when inquiring into the question as to whether Macfarlane was or was not Leahy's agents, had wandered off on a side issue, as they decided that he was not the keeper of the licensed premises, and fined him accordingly. The exact position of Macfarlane had never been inquired into. If Leahy had put him in, he would have been there legally, and he would not have been liable under Section 169.

The Chief Justice: But he was put in by somebody else under the power of a bill-of-sale and the question is as to the lawfulness or unlawfulness of this power.

Mr. Justice ILuiDixa': Suppose he 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 Justice The Licensing Board might object. '

Mr. Lilley: Why there's nothing to prevent him having a black barman.

The Chief Justice: Oh, but we don't speak of the dignified negro when we say blackfellow.

Mr. Lilley : But he is not prevented from putting in a blackfellow barman. The question is whether when Muofarlano went into the hotel he was defects the occupier of that hotel. J They could not convict Leahy of permitting an

unlicensed person to conduct his licensed pro-mises, for he was there himself all the time, and therefore they could not convict Macfarlane. They should have inquired what Macfarlane had done in order to find him guilty of a

breach of the Act.

Mr. Justice Hanmore, in delivering the judgment of the Court, said this was an appeal against the decision of the justices whereby Walter Macfarlane was convicted, under the 109th section of the Act, as not being a licensed victualler, he had sold two glasses of beer at the Empire Hotel, of which William John Leahy was the lessee. Leahy was asked if the sale had been made with his consent and authority, and he said it had not. Macfarlane, in order to justify himself, said he had sold the beer in consequence of having been appointed under the authority given to Messrs. Perkins and Co. by the mortgage of the premises. The conviction would be sustained as Macfaimno was not an agent or servant of Leahy's. He would have been if the power contained in the mortgage could be legally given by a licensed victualler to his mortgagee. The power to appoint a person to get as an agent in the place of a licensed victualler would be the power to insert in his place an unlicensed person that was to say, would be the power to permit an unlicensed person to be the keeper of licensed premises absolutely or in effect. To permit such a thing under the 25th section of the Act was illegal, and consequently any contract or document by which one person contracted with another to give him power to do that which, he could not do hiniHolt-to commit an illegal net would be an illegality and void, consequently the power ofattorney given under the mortgage purporting to enable the mortgagee to place a person in that position was an illegal power, and the person appointed thereunder did not become an agent or servant of the licensed publican.-,

Therefore Macfarlane committed an offence under section 169. The conviction was therefore affirmed, with costs.

GALLOWAY V. ÏOltTETt,-ÍTULE ABSOLUTE FOR

ouster. L

Sir S. W. Griffith, Q.C., with him Mr. Real and Mr. Lilley (instructed by Messrs. Thynne and Goertz) in support of the rule, Mr. Power, with him Mr. T. J. Byrnes (instructed by Messrs. Macpherson, Miskin, and Feez), appeared for the respondent, Robert Porter, to

show cause.

Sir S.^V. GnirriTii stated that this case arose out of the election for a representative of the Eastward, in the municipality. of Brisbane, at which Messrs. Galloway and Porter were the candidates. The applicant's name was William Macnaughton Galloway, and eight voting

papers were found with the name " Robert' Potter" struck out, and with the names " William Macnaughton" erased, and the surname was left on. They were rejected by the returning-officer. The result was that Porter had a majority of five votes, but if these other eight votes had been counted Galloway would have had a majority of three. There were three other papers in the same form which were also rejected, but the voter had discovered his error in time, and had obtained other ballot-papers in lieu of them, and voted for Galloway. The section of the Act under which the case was brought was the 95th. In addition to these ballot-papers there were two on which the voter had signed his name, and had voted in favour of Galloway. Those papers were also rejected. These, Sir S. W. Griffith said, were also claimed by the appellant, in case he lost any of the other eight which they

claimed.

Mr. Power said the appellants had only filed affidavits in respect of four of these eight votes. In these four the surname ' ' Galloway" was only left standing on the form, and it was only in regard to those that any evidence of the intention of the voters was brought.

The CHIEF Justice said they could gather evidence of the intention only from the ballot papers themselves.

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

Sir S. W. Gramm paid these four persons said they intended to vote for Galloway, and it might be inferred that the other four who made the same mistake did the same.

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

election, had carefully Struck out the Christian

names.

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

Mr. Power: Well, I have not had much experience in electioneering, but I understand it is a very common thing for electors to strike out both the names and write on the ballot paper " both duffers." (Laughter.)

The Chief Justice : But the statute sayS the voter shall strike out the name of the candidate for whom he does not wish to vote.

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

'Galloway" and Robert Porter in full.

The Chief Justice said if the rule was right those papers were bad, because the voter had

voted for two men.

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

on the ballot-paper, and section 95 says the name of the candidate who is not voted for must be struck out.

The Chief Justice : Yes, it means to strike out the christian name and surname.

, Mr. Power : But I maintain that you must strike out the whole, because the candidate's name is not " Galloway," and no man of that name was nominated, for his name must mean the whole name. The person nominated was " William Macnaughton Galloway." If this is not so it will lead to a great deal of confusion. Cases may happen when there are two candidates of the same name. Suppose there were

two " John Smiths "

Mr. Justice Mein: Yes; and suppose the the two christian names were struck out and the surnames left.

Mr. Power : Then I would say it was no

vote.

The CitiES Justice : But as a general pro-sumption we must consider that a man who puts his ballot-paper in the box intends to vote. Of course there may be some tomfoolery when men jokingly writs bomb rubbish on their

papers.

Mr. Tower : But I submit the word "name", means the full name, christian and surname, for under the Smith clause the names have to be advertised, and it would be absurd if the returning-officer simply advertised the persons nominated by their surnames.

The Chief Justice said it mattered little, because if a voter did not want to vote for a candidate he must strike out both the christian and surname. '

Mr. Power said if the court was in favour of giving these votes to the applicant, he would ask for an inspection of the papers under section 47. There must have been some reason for striking out the " William Macnaughton," and they desired to see how far the erasing stroke had been carried. It might have struck out the " G" and left the name of " Allaway," and no such person was nominated, or it might have gone further and left such names as " Loway" or " Owaj-." This might save the expense of another election, as under section Vi if a councillor was ousted by the Supreme Court, the seat was declared vacant, and a

fresh election was to be held.

The CHIEF Justice said the court could call upon the returning-officer to make a fresh toturn. They might not be able to give relief to Galloway, but he could move by mandamus.

Mr. Bykn'ES, also for the respondent, urged that the only safe way in which the voters' intentions could be decided, was that if any letter or syllable of the name was struck out, the whole name must be regarded as gone, otherwise where was it possible to draw the line and determine how much of a man's name must be struck out before the vote was invalid ?

Sir S. W. GiuFrrnt, for the appellant, cited the case of Hutton ex parte Smith, Victorian Digest, Waterhouse and Hutchins, col. 32-1. The court could only review what the returning-officer could have seen on the ballot paper. In Hutton's case, the voter had written on the paper "Hutton only," and it was held that his intention was apparent, and in this case what would any person infer from looking at the ballot paper except that the voter meant to vote for Galloway. Jlo went there, intending to vote, and he struck out Porter's name If. the court hold the opinion that granting the ouster declared the election void and necessitated a new election, Sir S. W. Griffith said he would ask that the rule should be modified and made similar to the granting of a quo warranto, so that the applicant could afterwards obtain a mandamus on the returning-officer to declare

him elected.

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

Sir S. W. Gmrrrni said it would be a manifest injustice it' there was to be a subsequent election, but if the rule was modified to a quo warranto the marble man could follow.

Mr. Justice Harding said if the rule was made absolute the returning-officer would be requested to declare the applicant elected, and if he declined to do so a mandamus to compel

him could be maintained.

The Chief Justice in delivering the judgment of the Court, said this was a rule under the Local Government Act, part 5, section -in, calling upon Robert Porter, who had been declared elected for the East Ward of the Municipality of Brisbane, to show cause why he should not be ousted from his office of councillor on several grounds. First, that at the election for the said ward a majority of votes was polled in favour of William Macnaughton Galloway ; second, that certain votes lawfully recorded in favour of GuUowuy were wrong-fully rejected by the returning-officer, and if they had been admitted Galloway would have been elected to the office of councillor for the East Ward, and there was also an application for the costs of the rule. The question of the validity of this election and Porter's return as councillor, depended upon the effect which ought to be given to certain voting papers set out in the affidavits on behalf of the applicant. They were the usual ballot papers, containing the names of two candidates and nothing more. The voters in eight instances struck out completely the name of Robert Porter, but in respect of Galloway they struck out only the two christian names, leaving his surname untouched. On behalf of Galloway it was contended that these eight votes should have been counted in his favour, although they were rejected by the returning-officer. it was clear that in regard to these eight papers no vote could be claimed for Porter, as his name was completely struck out, The " effect of these papers depended upon the 25th section of Act and upon the manner in which the voter was to record his vote. The voter received as many ballot-papers as he was entitled to, and without leaving the room he was to strike from the papers the name of the candidate for whom he did not desire to vote) and the ballot-paper was then folded up so that its contents could not be seen and put into the box. The judgment of the court therefore would rest upon what construction they put upon the words "strike out the name of each or every candidate." As he had said Porter could have no vote in any of those eight ballot papers, and Galloway had part of his name left in. In order to deprive a candidate of a vote his Honour thought that the whole of his Christian name and surname must be struck out. If that was not done it must be recorded as the intention of the voter to vote

for the man of whose name he had left a part in the paper. In these cases the voters said what was equivalent to " I vote for Galloway, I don't vote for Robert Porter.'" Therefore, his Honour thought those eight votes should be retained by the returning-officer, and he also thought no difficulty could arise if the returning-officer followed the words of the statute. Mr. Power had argued that to make a vote of effect the whole name should be left on the paper ; but his Honour did not think that necessary, as the intention of the voter was indicated by him permitting a substantial portion of the name to remain. The rule was made absolute, with costs.

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

IN INSOLVENCY.

Before his Honour Mr. Justice Mein.

in Tin: mattee or war. heavily.

Mr. W. F. Wilson appeared for the insolvent, and applied that he should pass his last examination. There being no objection on the part of the trustee the examination was accordingly passed.

Before his Honour Mr. Justice Harding.

IN THE MATTER OF JOHN IGNATIUS STEWART.

Mr. W. F. Wilson, on behalf of John Ignatius Stewart, timber-getter, of Cairns, an insolvent, applied for a certificate of discharge under section 168, subsection 2, of the Insolvency Act. The affidavits read showed that the insolvent had been adjudicated as such in 1886, and the insolvency was attributed to floods having carried away a quantity of timber he had stacked ready for the mill. The motion was not opposed by the official trustee, and the certificate was accordingly granted.

IS CHAMBERS.

Before Mr. Justice Harding yesterday the following matters were dealt with Dempsey and another v. Riley. Mr. Bernays for the plaintiff, Mr. Brown for the defendant. Mr. Bebxays applied for leave to sign final judgment as per summons. Order : Leave to defendant to defend, statement

of defence eight days' after statement of claim, ' costs to be costs in the cause. Howes and another v. Rich. Mr. Armstrong (Messrs. Hart and Flower) for the plaintiffs applied for leave to proceed as if the defendant had been within the jurisdiction. Order accordingly. The Curator in Intestacy obtained orders to administer in the intestate estates of Thomas Doman and Philip Princeps.