Trial-Right to a jury-Cause or matter within the cognizance of the Court in its equitable jurisdiction.-See PRACTICE, col. 358.

Action against husband and wife-Verdict of jury in favour of wife-Disagreement as to husband-New trial-Juries Act 1908, s. 15.See PRACTICE, col. 361.

Criminal charge-View of locus by jury— Witness questioned.-See CRIMINAL LAW, col. 107.

Criminal trial-Attempt improperly to influence jurymen-Summary jurisdiction to punish contempts.-See CONTEMPT OF COURT.

JUSTICES.

Transfer of action from Supreme Court to Magistrate's Court-Plaintiff desirous of having action tried by a judge with a jury.— Where application is made to the Supreme Court to transfer from that Court to the Magistrate's Court, an action commenced in the Supreme Court, the judge has a discretion as to whether he will make such order for transfer, and the fact that the plaintiff desires to have the action tried before a judge with a jury is a reason in a case where questions of fact for determination by a jury may obviously arise for exercising such discretion against the defendant's application for transfer. KIRKLAND v. G. R. RYDER & Co., LTD., 18 Q.J.P.R. 104; 1924 Q.W.N. 31. [Queensland.]

Justices-1902 No. 27, s. 56-Time limited for complaint-Recovery of wages-Payment in arrears-Refusal by magistrate to make order-Mandamus.-On a summons under the provisions of the Masters and Servants Act to recover wages due, it appeared that the employee was in the master's employ for two years at a wage of £2 per week and his keep. At the end of the first year the master became about £20 in arrears in his payments, but subsequently made regular payments, and when the service terminated, ten weeks were claimed to be owing. The magistrate after hearing complainant's evidence, made no order, on the ground that the wages had accrued due more than six months prior to the complaint made. Held, that the question whether the servant had any claim for wages in respect of services rendered during the period of six months preceding the taking out of the summons depended upon whether the antecedent arrears had been satisfied by an appropriation of subsequent payments; that, in order to determine this, it was necessary to look into the whole account, and that, by refusing to do so, and making no order, the magistrate had refused to exercise jurisdiction. A mandamus was, therefore, granted to compel him to hear and determine the claim. Ex parte Bateman (11 W.N. 143) followed; Ex parte Susan Austen (18 N.S. N.S.W.L.R. 216), and Ex parte Toomey (1 S. R. 24) distinguished. Ex parte BARCLAY;

Re BROGDON, 24 S. R. 416; 41 W. N. 90. [New South Wales.]

Justices Act, 1902 No. 27, ss. 65, 115-Information disclosing no offence-Conviction quashed on appeal to Quarter SessionsCertiorari. At the hearing of an information, which for lack of sufficient particulars disclosed no offence, the respondent was convicted, no question as to the form of the information being raised. On appeal to Quarter Sessions, after argument but without the depositions being read, the conviction was quashed on the ground that the information disclosed no offence. On an application to make absolute a rule nisi for certiorari, held, that lack of sufficient particulars was not vital to the proceedings, that the order of the chairman of Quarter Sessions should be reversed, and the rule nisi made absolute. v. DUFF, 41 W. N. 23. [New South Wales.]

R.

Form of information-Duplicity-Motor car driving- "Negligently in a manner dangerous to the public "-Amendment of information and conviction-Justices Act 1915, s.155.-Sect. 10 (1) of the Motor Car Act 1915 provides: "If any person drives a motor car on a public highway recklessly or negligently or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case... that person shall be guilty of an offence against this Act.' An information charged that the defendant did drive a motor car on a public highway negligently in a manner which was dangerous to the public, having regard to all the circumstances of the case. Held, on appeal from conviction, that the information was not bad for duplicity. Observations in Kane v. Durcan (1911 V.L.R. 293) applied. Observations in Chammen v. Gilmore (1914 V.L.R. 455) not followed. Semble, if it had become necessary, the Court could have amended the information and conviction so as to make them accord more accurately with the section. MACKAY V. MAY, 1924 V.L.R. 413; 30 A.L.R. 328. [Victoria.]

Plaint note-Place of atode not statedAction against mayor, etc., of borough.In an action for damages the plaint note described the defendant as "The Mayor, Councillors and Burgesses of Queenstown," no address or calling being mentioned. Held, on objection to the jurisdiction in that the plaint note was defective, that the description of defendant in the plaint note meant the corporation of the town of Queenstown and also showed that the corporation dwelt in Queenstown, and therefore fulfilled the requirement of the Magistrates' Courts Act 1908, s. 65 (3) that the plaint note shall give the place of abode of the parties. MCBRIDE v. MAYOR OF QUEENSTOWN, 19 M.C.R. 28. [New Zealand.]

Action against married woman-Plaint note-Whether necessary to allege therein that action against her separate estate.In 1923 the defendant B., G., the defendant wife (then Mrs. C., a widow) purchased goods

from plaintiff. Later in that year she married G. Plaintiff sued both husband and wife for the price of the goods. The husband confessed judgment for the full amount of the claim and it was now sought to recover judgment against the wife. On objection that the plaint note did not disclose that the action was against the wife's separate estate. Held, that the Married Women's Property Act 1893, had made it unnecessary to allege in the plaint-note that the action was against her separate estate or that she had separate estate, and that there must be judgment against her separate estate. Rae v. Crump (7 N.Z.L.R. 723) considered. EASSEY GUNDEF SON & WIFE, 19 M.C.R. 29. [New Zealand.]

V.

Adding parties in place of deceased partyCase adjourned owing to defendant's illnessSubsequent death-Motion to make executors defendants-Whether action abated.-A case had been adjourned, sine die, at the hearing owing to the illness of defendant who subsequently died while the proceedings remained so adjourned. On motion for the executors to be made defendants in place of deceased. Held, ordering that the executors be substitutd for deceased, that the matter was covered by s. 61 of the Magistrates' Courts Act 1908, and that the action had not abated as the cause of action survived and continued. NAHR V. O'BRIEN, 19 M.C.R. 65. Zealand.]

[New

Two complaints based on one transactionOne heard-Decision reserved-Second complaint heard-Conviction. On the hearing of two complaints against J. S. for being drunk and disorderly and for assaulting a policeman in the execution of his duty, the justices reserved their decision on the first, proceeded with the hearing of the second and then convicted him on both. The two complaints were founded on facts which might be taken to constitute a single transaction. that as the course taken by the justices would prevent the defendant from pleading a previous acquittal or conviction, the convictions must be quashed. SAUNDERS v. TAYLOR 1922, Tas. L.R. 3. [Tasmania.]

withdraws-Hearing concluded

Held,

Complaint-Hearing-Defendant's counsel and order made "The Justices Procedure Act 1919," s. 99. On the hearing of a complaint in the Court of Petty Sessions at Hobart, defendant's counsel withdrew and the defendant took no part in the subsequent proceedings. The presiding magistrate continued the hearing and eventually made an order against the defendant. Held, on order to review, that the magistrate was right in continuing the hearing, and that as it did not appear that any injustice had been done the order to review should be dismissed. SMITH V. EDWARDS, 1922 Tas. L.R. 24. [Tasmania.]

Default summons-Returnable on day when Court not sitting-Notice of intention to defend-Postponement of hearing by Clerk of Petty Sessions in absence of Justices

Further adjournment in absence of defendant -Order against defendant in his absence— Application by defendant to set aside order after twenty-one days-Validity of order.—A complainant issued a default summons under s. 99 of the Justices Act 1915 as amended by the Default Summonses Act 1915. Notice of intention to defend was given. The summons was made returnable on Tuesday the 22nd July, 1924, and both parties attended at the Court house on that date, but found that there was no magistrates to adjudicate, the sitting having been altered from Tuesdays to Thursdays. The Court sat on Thursday the 24th July, to which day the Clerk of Petty Sessions had, at the instance of the complainant, purported to postpone the hearing. The complainant did, but the defendant did not, attend on the 24th July, and the Court adjourned the summons to the 31st July. The parties then agreed that the complainant should cause an ordinary summons to be issued, but no such summons was in fact issued, the Clerk considering that the default summons must first be disposed of, but the defendant was not aware of this. On the 31st July, the defendant again being absent, the complainant proceeded under the default summons, and, obtained an order for the amount claimed, with costs. The defendant's solicitor did not become aware that this order had been made until some days later. On the 4th September (the hearing having been adjourned from the 21st August) the defendant applied that the order should be set aside under s. 66, but the Court held that it had no power to do so, inasmuch as the 21 days' time limit under s. 2 (1) (d) of the Default Summonses Act had expired. Held, (1) that s. 2 (1) (d) applies only in cases where an order has been made in default of notice of intention to defend, and that consequently the order of the 31st July should have been set aside under s. 66, which should not be given any limited meaning, and, semble, that the order should have been set aside under that section, even if no notice of intention had been given; (2) that s. 89 (5) of the Justices Act 1915, which deals with proceedings in a Court of Petty Sessions," did not apply in the circumstances, so as to give the Clerk of Petty Sessions power to postpone the hearing, and that therefore the case was not rightly before the Court of Petty Sessions, or in proper train for hearing before the Court, either on the 24th or on the 31st July. KHYAT . SCHMIDT, 1924 V.L.R. 499; 46 A.L.T. 72; 30 A.L.R. 352. [Victoria.]

interlocutory matters; there is no prescribed solicitor's fee for preparing for trial and no discretion is conferred on the Court to allow it. RAFFOL V. LEVVEY & PUBLIC TRUSTEE, 1924 G. L.R. 444. [New Zealand.]

Court of Petty Sessions-JurisdictionFederal or State-Matters arising under a law of the Commonwealth ParliamentImprisonment of fraudulent debtors"Costs alone "Whether applicable to order for costs to be paid by an unsuccessful complainant -Order to review -Evidence.-Sect. 39 (2) of the Judiciary Act 1903-1920 (read with s. 76 of the Constitution) invests the several Courts of the States with Federal jurisdiction over (inter alia) any matters arising under any laws made by the Commonwealth Parliament, but it does not deprive the State Courts of their State jurisdiction over such matters. The Commonwealth Parliament cannot deprive the State Courts of their State jurisdiction over matters arising under the laws of that Parliament, except by conferring original jurisdiction over such matters upon a Federal Court and making that jurisdiction exclusive of the jurisdiction of the State Courts over such matters under s. 77 (2) of the Constitution, and this the Commonwealth Parliament had not done. A. laid a complaint in a Court of Petty Sessions against B., claiming payment of the difference between wages which were paid to him under and in accordance with the provisions of a deed of apprenticeship and an amount which he claimed to be entitled to by the application to the apprenticeship deed retrospectively of the provisions of an award of the Commonwealth Court of Conciliation and Arbitration. The Court dismissed the complaint, with £5 5s. costs. Held, that the subject matter of the complaint was a matter arising under a law made by the Commonwealth Parliament. The Court was constituted by a police magistrate and two honorary justices. By s. 39 (2) (d) of the Judiciary Act it is provided that the Federal jurisdiction of a State Court of summary jurisdiction shall not be judicially exercised except by (putting it shortly) a police magistrate. When the case was called on the police magistrate drew attention to the constitution of the Court and the solicitors for both parties consented to the Court, as constituted, hearing the case. Held, that the Court had both State jurisdiction and Federal jurisdiction over the subject matter of the complaint; that the proper inference to be drawn from the facts was that the Court was, at the instance of the parties, exercising its State jurisdiction, and that therefore it was properly constituted. Mallinson v. Scottish Australian Investment Co. Ltd. ([1920] 28 C.L.R. 66), and Lorenzo v. Carey ([1921] 29 C.L.R. 243) applied. A. did not pay the above mentioned costs, and B. subsequently took out a summons under s. 22 of the Imprisonment of Fraudulent Debtors Act 1915 to enforce the order, At the hearing the Court of Petty Seessions made an order that in default of payment A. be imprisoned for fourteen days. Held, that the Court had jurisdiction to make this order,

as the original order for the payment of costs was validily made, and s. 22 of the Act enables an order to be made, though the original order was "for costs alone," payable by an unsuccessful complainant. Upon an order nisi to review a decision of justices, the validity of which depends upon whether or not justices who made a previous order had jurisdiction to make such order, the Court will allow affidavits to be used as evidence of facts relied upon as showing want of jurisdiction. whether such facts were, or were not, proved when the subsequent order was made. Pritchard v. Jeva Singh (1915 V.L.R. 510) referred to. BOOTH V. SHELMERDINE BROS. PTY. LTD., 1924 V.L.R. 276. 46 A.L.T. 8; 30 A.L.R. 240. [Victoria.]

Jurisdiction-Sureties of the peace-Powers of justices-Common law-Recognizances ordered without jurisdiction-Prohibition or certiorari. With the exception of such powers ex officio as Justices may derive from their commission and the old Statutes, which include the power given by s. 21 of the Justices of the Peace Act, 1908, a magistrate or justice of the peace can require sureties of the peace only upon a complaint in writing and upon oath under s. 13 of the Act and after hearing the person from whom the surety is required. Upon the hearing of an information for assualt sworn against James B. the appellants John B. and John B. junior, had been examined as witnesses for informant and were then present in Court. The magistrate, being of opinion that the trouble between informant and defendant had been caused by appellants' interference with defendant's cattle, although there was no charge and no complaint against appellants and neither of them was given an opportunity of showing cause why an order should not be made, ordered each of them to enter into recognizances to keep the peace. Held, that there was no jurisdiction to bind over the appellants to the peace, that the whole of the proceedings was coram non judice and that the orders were null and void; held also that the proceedings should have been by application for prohibition or certiorari and as that objection was taken by respondent to appeal must be dismissed. BOURKE v. BOURKE, 1924 G.L R. 622. [New Zealand.]

Magistrate's Court-Action for £50 damages -Judgment for £10 Appeal by defendant— Amount involved less than £20-Leave to appeal. The plaintiff in an action for damages for trespass instituted under the Magistrate's Courts Act of 1921, claimed £50 and recovered £10. Held, that as the amount involved in the present case was less than twenty pounds the appellant had no right of appeal under the Magistrates' Courts Act of 1921, s. 11 (3) (i) and as no important principle of law or justice was involved, leave to appeal should not be given. BROWN v. BRISKEY, 18 Q. J. P. R. 69. [Queensland.]

Jurisdiction of Magistrate's Court-Action by guarantors for contribution against co

guarantors-Taking of accounts involvedJoinder of plaintiffs to enforce their several claims Nonsuit. These were two separate actions by fifteen plaintiffs against the two defendants, to recover the balance of contribution of each defendant under a guarantee executed by plaintiffs, and nine others and the two defendants, which had been paid by the plaintiffs, and also to recover costs incurred by plaintiffs in compelling or endeavouring to compel payment of contributions by other guarantors and interest thereon. Held, non-suiting the plaintiffs (1) that, as the right to contribution from defendants vested severally in each plaintiff and there being no evidence to show how much each plaintiff contributed, judgment could not be given without the taking of accounts, a function which belonged to a Court possessed of equitable jurisdiction and therefore outside the jurisdiction of the Magistrate's Court; (2) that the rights of action, if any, possessed by plaintiffs being several, the joinder of plaintiffs for the purpose of enforcing these several claims was the constitution of a suit not authorised by the Magistrates' Courts Act 1908. Smurthwaite v. Hannay ([1894] A. C. 494) referred to. HONORE v. EASY, 19 M.C.R. 49. [New Zealand.]

Motor Traffic Act, 1915 No. 11, s. 4-1909 No. 5, s. 10-Justices Act, 1902 No. 27, s. 132Driving a motor car while under the influence of liquor-Conviction-Cancellation of license -Prohibition.-The appellant was convicted before a magistrate of driving a motor vehicle while under the influence of intoxicating liquor. The magistrate imposed a fine and ordered that his license should be cancelled, although under the Act he was only empowered to fine and to suspend the license for such time as he thought fit. Held, that a prohibition would not lie, but that the case should be remitted to the magistrate to amend the order. Ex parte ANDREAE; Re FORAN AND ANOR., 41 W. N. 53. [New South Wales.]

Erroneous dismissal of complaint on ground that complaint disclosed no offence-Mandamus.-Where a complaint is erroneously dismissed on the ground that it discloses no offence, a mandamus may issue to compel the magistrate to hear and determine the complaint according to law. THE KING v. THE POLICE MAGISTRATE AT BRISBANE AND BLOCKSIDGE & FERGUSON LTD.; Ex parte HENRY NORMAN KNOTT, 1924 S. R. (Q.) 223; 18 Q.J.P. R. 116. [Queensland.]

Same case on another point, COMPANY, col. 53.

Special case-Statement of case-Duty of justices-Statements of ground of decisionFinding of facts.—A special case, under s. 101 of the Justices Act 1902, should state the whole of the material facts as found by the magistrate for the purpose of his conclusion and shortly the grounds on which on such determined facts, he had arrived at his conclusion. The magistrate's verdict must be preceded by certain definite conclusions either

of law or of fact or of both law and fact. KEITH v. BOURNE, 41 W. N. 21. [New South Wales.]

Local Court-Jurisdiction-Power to state special case on objection to jurisdiction-Power to call party as witness-Acquiescence in this course " Carrying on business "-" Dwelt '' -Local Courts Act 1886, s. 69; Amendment Act 1888, s. 4.-Notwithstanding the provision of s. 4 of the Local Courts Amendment Act 1888, that the Local Court in which an action is commenced shall finally determine any objection to its jurisdiction, such Local Court is not deprived of the power to obtain the opinion of the Supreme Court by way of special case on points of law relating to the objection to jurisdiction. The Local Court has no power, on its own motion, to call a party as a witness to give evidence of facts to establish its jurisdiction or want of jurisdiction, but, held, that the advocates of both parties, by examining the party called and not protesting, had consented to the Court's action in calling and examining the party. The plaintiff at the time when the contract which was in dispute was made was employed as a wage-earner near Moorook. He also had an interest" with his brother in a farm at Stockwell. At the time of action brought he deposed that he was a partner in this farm with his brother. Held, that he was not carrying on business at Moorook, and no inference could be drawn that at the time the contract was made he was carrying on business with his brother. The word" dwelt " in the Local Courts Amendment Act 1888 imports the permanent place of abode of the person concerned if he had one at the material time, but if he had no permanent place of abode at that time it is satisfied by the place where he resided temporarily. Mac Dougall v. Paterson ([1851] 11 C.B. 755) and Alexander v. ([1866] L.R. 1 Ex. 133) applied. SEIDEL v. STEICKE, 1923 S. A.S. R. 214. [South Australia.]

Jones

Appeal-Special case-Recognizance before case stated and delivered-Delay.-An appellant, through want of means, delayed for a considerable time after the stating of a case, before entering into recognizance. He entered into a recognizance, and paid all necessary fees before the case was delivered to him. Held, that there was a sufficient compliancé with s. 102 of the Justices Act 1902, and, further, that under the circumstances of the case, the Court would not refuse to hear the appeal because there had been some degree of delay. TRICKETT v. MEATHERINGHAM, 24 S. R. 379; 41 W.N. 94. [New South Wales.]

Supreme Court (N.S.W.)-JurisdictionCase stated by Court of Petty Sessions— Point of law not raised in Court below-Justices Act 1902 (N.S.W.) ss. 101, 106.-Upon a case stated under s. 101 of the Justices Act 1902 (N.S. W.), the Supreme Court may entertain an objection of law which was not raised before the Court of Petty Sessions if it cannot be cured by evidence. Knight v. Halliwell (L.R. 9 Q.B. 412); Ex parte Anderson (20

S.R. (N.S.W.) 207) followed. GEORGE HUDSON LIMITED V. AUSTRALIAN TIMBER WORKERS' UNION, 32 C.L.R. 413. [High Court.]

Same case on other points, FEDERAL LAW -INDUSTRIAL ARBITRATION.

Appeal from Court of summary jurisdiction -Institution of appeal-Error in setting down. An appellant having properly instituted his appeal set it down for next sitting of the appellate Court, which was less than ten days from the institution of the appeal. He discovered this mistake and informed the respondent's solicitor that he had set it down for the following sittings. Owing to an oversight of a clerk the appeal was not so set down. Held, that the Justices Act 1921, unlike Ordinance No. 6 of 1850, gives a right of appeal, and that the appeal having been properly instituted must be heard. The only conditions precedent to an appeal under the Justices Act 1921 are the performance of the matters prescribed by ss. 171 and 172 of that Act. PHILLIPS v. PHILCOX, 1923 S. A. S. R. 550. [South Australia.]

See this case on another point, DESERTED WIVES AND CHILDREN, col. 139.

Right of appeal from justices-Complaint for offences under Motor Vehicles Act 1921-Disagreement of justices-Refusal to make order of dismissal Order-Justices Act 1921, s. 163.On the hearing of a complaint for an offence under the Motor Vehicles Act 1921, the two justices were unable to agree, and endorse the complaint with the words Justices do not agree." Later, at the request of the defendant, they signed a document setting out that they had heard the complaint, and, being unable to agree, refused to dismiss it, but ordered that it should be heard before a reconstituted Court of summary jurisdiction Held, on appeal, that neither by the Justices Act 1921 nor by the combined effect of that Act, the Motor Vehicles Act 1921 and the Acts Interpretation Act 1915 is any right of appeal given from an order of justices deciding matters of procedure which are merely incidental when the substantive matter of the complaint is not determined. Held, further, that when two justices hearing a complaint are disagreed as to whether the offence charged has been committed, they are not bound to dismiss the complaint, but may adjourn the hearing. Held, therefore, that there was no appeal from the refusal to dismiss the complaint or from the order directing a rehearing, which was in effect an order for adjournment of the hearing. STUART ALLCHURCH, 1923 S.A.S.R. 333. [South Australia.]

ย.

Justices Act, 1902 No. 27, s. 117-Prohibition Costs against the magistrate. In prohibition proceedings, against a magistrate, the Court, on being satisfied that the magistrate had disregarded his judicial position and given a decision contrary to natural justice, granted the order, and awarded costs against the magistrate. Ex parte TAYLOR; Re BUTLER, 41 W. N. 81. [New South Wales.]