peared that one of the robbers was addressed at the time of
the robbery, by another of the gang, as "Blacksmith." The
witness answered that he had heard the prisoner spoken of on
more than one occasion by that name. Held, that the evi-
dence was admissible. R. v. Connell
139
2. The question being whether, when a case containing the
goods had been placed upon the plaintiff's dray, the defendant
intended to part with the possession, Held, that the defendant
in his examination-in-chief could not be asked, what was his
intention in giving up the case, or whether, in putting the
case on the dray, he expected to be paid the carriage for it,
as the intention of the defendant in parting with the goods
could only be proved by circumstances (Stephen, C. J.,
dubitante).
The plaintiff was called in reply to contradict certain evi-
dence of the defendant, and, being asked in cross-examination,
denied that he had, when leaving the Court, told his son to
be sure and say what he had told him. Held, that the defen-
dant might call evidence in rejoinder to prove such conver-
sation. Gallimore v. Moore
of custom. Frazer v. Erans
of marriage in savage land. R. v. Byrne
EXECUTION against types, &c., of printer of libel.
EXTINGUISHMENT of right of way. Friend v. Luke
FELONS APPREHENSION ACT. 1. Under the Felons Appre-
hension Act the Judge who issues the bench warrant and
summons can issue a second summons upon the same infor-
mation. R. v. Connell
FEME COVERT. 1. If a married woman has property settled on
her, but in the hands of trustees, she has "means" within the
87th section of the District Courts Act, and a ca. sa. may
legally issue against her. Ex parte Harrey
See COVENANT, 2. Fitzgerald v. Fitzgerald
FENCING ACT. 1. In an action in a District Court, for money
paid and laid out for the defendant in fencing a side line be-
tween the plaintiff's and defendant's properties, of which
notice had been given under the 9 G. IV., No. 12, it appeared
that the plaintiff had written a letter to the defendant, as
follows:-"I wish to apprise you that it is my intention to
have, within six months time from this day, a new three-
railed fence completed between my land and your property,
now in the occupation of Mr. L., &c." Held, that the notice
was sufficient within the statute.
Held also, that the defendant was liable under the Act as
owner, although the land was, at the time of both of the
notice and the fencing, under lease.
Semble (per Stephen, C. J.), that the tenant is also liable
under the Act. Parker v. Bowman
See AWARD, 1. Ex parte Josephson
FIGI ISLANDS, evidence of marriage in R. v. Byrne
See TRUST, 1. Matthews v. Roberts
FREIGHT, in action for refusing, measure of damages.
GAMING. 1. To an action for £600, being money had and received,
the defendant pleaded that the money had been deposited by
the plaintiff in the defendant's hands as a stakeholder, under
an agreement between the plaintiff and one Robertson, to
abide the event of a race to be run between two horses, owned
by them respectively, Robertson depositing a still larger sum
with the defendant contingent on the same event-the total
on both sides being £1800; and it was also agreed that the
balance of their stakes should be similarly deposited on a
stated day; and that all deposits should be forfeited by either
party failing to comply with that provision or with any other
portion of the contract. The plea then alleged that the
plaintiff failed to make the last deposit, and refused to run
the race, in consequence of which the defendant paid over to
Robertson the moneys previously deposited, in pursuance of
the clause as to forfeiture. Replication, that whilst the de-
fendant held the deposit, the plaintiff repudiated the wager,
and required the return of his stakes. A second replication
also added that the repudiation took place before the plaintiff
failed to comply with any of the terms of the agreement.
Held, on demurrer, that the plea was good, and the replica-
tions were bad. Hogan v. Curtis
ILLEGAL CONTRACT.
See GAMING, 1.
IMPORTATION of coin
Queen
INDEMNITY.
See BOND, 1.
See BOND, 2.
INFORMATION.
into Mint, what is Blatchford v. The
See FELONS APPREHENSION ACT, 1. R. v. Connell 314
INSOLVENT ACT. 1. The obligees gave a bond conditioned for
the payment of £2000 to S. S., "at the expiration of nine
months after notice in writing to be given by the said S. S.,"
and became insolvent before any such demand had been
made. Held, that the £2000 was proveable by S. S. under
section 40 of the Insolvent Act, and that the assignee must
value the debt. In re Estate of Spyer
2. The Inspector of the Union Bank of Australia who, as the
nominal plaintiff for the bank has recovered judgment, can-
not petition as a creditor under the 13th section of the Insol-
vent Act. Ex parte Union Bank, In re Estate of Threlkeld 119
3. After judgment in an action of slander, the defendant became
insolvent. The District Court Judge having after the insol-
vency ordered a ca. sa. to issue against him, on the ground
that he had " means" whereby he could satisfy the judgment
with, in the 87th section of the District Courts Act, the Court
(Hargrave, J., dissentiente) granted a prohibition, on the
ground that there was no evidence before the District Court
Judge that the defendant had such means.
It is not necessary to make the Registrar of the Court a
party to the rule for a prohibition.
The 30th section of the Insolvent Act, 5 Vic., No. 17,
enacts that the further execution of any judgment or process
against the person or estate of any insolvent shall, "after the
lodging of the order for sequestration, be stayed." The 14th
section of the Defamation Act, 11 Vic., No. 13, enacts that no
law for the relief of insolvent debtors shall extend or be con-
strued to extend to affect or discharge from his liability any
person who shall be indebted for any penalty, damages, or
costs, for the printing or publishing of any blasphemous,
seditious, or defamatory words or libel.
Semble (per Stephen, C. J.), that the latter section does not
repeal the former, and that under the above circumstances
the defendant could not be arrested. Ex parte Gee
upon insolvency of libeller, types, &c., pass to assignee under
Webb v. Humphrey
under the 32nd section of, a defendant in an action of libel,
who has been arrested under a ca. sa. after his sequestration,
is not entitled to his discharge. Webb v. Wilton
proof of promissory note against estate of maker under the
Ex parte The Bank of New South Wales-In re Culter's
Estate
INSOLVENT, purchase from mortgagee in trust for, and in fraud of
creditors. Humphrey v. Roberts
uncertificated, may be elected and hold office as councillor of
municipality. Ex parte Mossman
INTENTION, eviden :e of witness as t Gallimore v. Moore
See EVIDENCE, 1.
JUDGMENT. 1. A. being sued upon an administration bond,
sequestrated his estate. The plaintiff went to trial without
giving any notice to the assignee of A. to come in and defend
the action, under section 31 of the Insolvent Act; and on
proving a breach of the condition, got a verdict for the
amount of the penalty, on which he entered up judgment with
costs. The Chief Commissioner, on the plaintiff tendering
proof of his claim on the judgment, rejected such proof, and
the Court on appel sustained his decision. The plaintiff
having now moved to set aside his own judgment in the
action, and the verdict on which it was founded, the Court
(Hargrave, J., dissentiente) granted the application. Attorney
General v. Buckland
146
2. An action will not lie on a judgment recovered in a District
Court. Greville v. Bird
253
by two justices under Small Debt's Act, action will not lie
upon Simpson v. Rodd
1
LANDLORD AND TENANT. 1. The twenty-first section of the
Landlord and Tenants Act, 11 G. II., c. 19, enabling the de-
fendant to plead the general issue, and give the special matter
in evidence, is in force in this colony. Glasson v. Egan 85
See FENCING ACT, 1. Parker v. Bowman
See TENANTS ACT, 1. Ex parte Harris
LARCENY. 1. A woman, a native of the Figi Islands, living and
carrying on business in Sydney, as a feme sole, was married to
a half-caste native in one of the Islands, by the British consul
there, by words of mutual consent, to live together as man
and wife. The prisoner was convicted of stealing goods
described in the information as her property. It appears that
the half-caste, being still at the Figi's, has married again.
There was no evidence as to the laws there prevailing on the
subject of marriage, or the rights or incidents thence arising.
Held, that there was not sufficient evidence of a valid and
still subsisting marriage cognisable by English law, and that
the property was rightly laid. R. v. Byrne
2. A. was tried on an information charging him with stealing
£300, the property of a bank. The jury returned a verdict of
guilty, but with the intention of returning the amount.
Held, that the verdict was a verdict of guilty; and the con-
viction was sustained. R. v. Johnson
201
LIBEL. 1. Declaration for publishing a telegram reporting that the
plaintiff had been charged with receiving and attempting to
negotiate a note for £50, stolen from the Mudgee mail, and
that he alleged that he got it from one D., a man not resident
in the district, and not to be heard of anywhere. Held, on
demurrer, to disclose a good cause of action. Ashworth v.
Fairfax
2. A defendant in an action of libel, who has been arrested
under a ca, sa, after his sequestration, is not entitled to his
discharge under the 32nd section of the Insolvent Act. Webb
v. Wilton
374
execution against types &c., of printer of Webb v. Hum-
phrey
LIEN. 1. The plaintiff ordered goods from his agent to be forwarded
to him at B. The agent directed the goods as requested, and
instructed a certain carrying agent to forward them. The
carrying agent agreed with a carrier to take the goods if he
could find a mate going that road, and a way-bill having
been signed by the carrier undertaking to deliver at B., was
forwarded to the plaintiff. The carrier, not being able to
find a mate, agreed with the carrying agent to take the goods to
W. The carrier having del vered the goods at W., the plain,
tiff refused to pay th freight. In an action for the con-
version of the goods, plea setting up a lien for carriage, Held,
that even although the carrying agent was not authorised to
make a second contract so as to bind the plaintiff, yet the
carrier was still bound to take the goods under the new con-
tract, they being tendered to him by the agent to be carried,
and that therefore he had a lien for the carriage.
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The question being whether, when a case containing the
goods had been placed upon the plaintiff's dray, the defen-
dant intended to part with the possession. Held, that the
defendant in his examination-in-chief, could not be asked
what was his intent on in giving up the case, or whether, in
putting the case on the dray, he expected to be paid the
carriage for it, as the intention of the defendant in parting
with the goods could only be proved by circumstances
(Stephen, C. J., dubitante).
The plaintiff was called in reply to contradict certain evi-
dence of the defendant, and, being asked in cross-examination,
denied that he had, when leaving the Court, told his son to
be sure and say what he had told him. Held, that the defen-
dant might call evidence in rejoinder to prove such conver-
sation. Gallimore v. Moore
388
LOSS OF SERVICE in an action of seduction, what is Potter v.
Linden
351
LUNACY. 1. The sixth section of the 22 Vic., No. 14, enacts that
the Supreme Court may be holden before and by the Primary
Judge in Equity for the granting of probates, &c., and for
the exercise of the jurisdiction of the Court in cases of lunacy,
and over the persons and property of such as are of unsound
mind, and for the disposal of all motions and matters in
relation thereto." Held that, in lunacy cases, the jurisdiction
of the full Court had not been taken away by this section, but
that a right of appeal to the full Court from the decision of
the Primary Judge existed. In re Bowman
MALICIOUS PROSECUTION. 1. In an action for malicious prose-
cution, in charging the plaintiff with perjury, it appeared that
the false swearing was committed on the trial of an action by
the plaintiff against the defendant, in the District Court, on a
promissory note. The defendant had not in due time pleaded.
But the District Court Judge allowed the defendant to cross-
examine the plaintiff as to whether the instrument had not
been given on certain conditions. In the plaintiff's answers
to these questions the perjury was alleged to have been com-
mitted, and the defendant accordingly prosecuted him. But
the justices dismissed the charge, because the cross-exami-
nation was immaterial to the issue. The plaintiff having
been nonsuited, on the ground that there was reasonable and
probable cause for the prosecution, Held (Faucett, J., dissen-
tiente), that the nonsuit was right. Bardwell v. Galvin 91
MANDAMUS. 1. By the 9th section of the Appropriation Act of
1866, a sum not exceeding £107,060 8s. 10d. was appropriated
"for the supplimentary service of the year 1865, and previous
years," and among the items was £1000 mentioned as "com-
pensation to J. M. K., for losses of health and property sus-
tained by her, &c." The 10th section enacts that the
Treasurer shall pay the several sums "to such persons in such
manner and in such proportion as the Governor, by any war-
rant or order in writing, shall direct." It appearing that no
such warrant or order had been issued by the Governor, and
that the practice was not, in the first instance, to issue any
warrant for the payment of money so voted, but that every
month a general warrant was issued by the Governor for a
sum which, it was supposed, would be required during the
month, and that the specific payments eventually made out of
that sum were afterwards included in another warrant, the
Court discharged a rule for a mandamus to the Colonial
Treasurer, ordering him to pay to the official assignee of
J. M. K. the amount so voted as compensation. Ex parte
Mackenzie
MARRIAGE, evidence of, in savage countries. R. v. Byrne
See LARCENY, 1.
MARRIED WOMAN.
See FEME COVERT, 1.
MINT. 1. The Mint Regulations of the 25th September, 1855, state
that "(1) Importations of gold for coinage, from 1000
ounces standard upwards, will be received subject to a charge
of three quarters per cent. for converting the same into coin;
(2) importations below this amount will be coined at a charge
of one per cent." A. had, between January 1863 and April
1865, imported gold for coinage in about thirty-six deposits,
each of which weighed more than 1000 ounces, but was
packed in several bags, no one of which weighed 1000
ounces. On all such deposits A. had been charged one per
cent. for coinage; and various documents had been issued by
the Mint and received by A., on the face of which it appeared
that each separate bag had been dealt with by the Mint as a
separate importation. A., contending that each of the deposits
was a separate importation, brought an action for the over-
charge of one quarter per cent. Held, that the plaintiff had
no cause of action. Blatchford v. The Queen
See BOND, 2. The Joint Stock Bank v. Mortimer
MORTGAGEE, purchase by, under his power of sale.
Kemp
See COVENANT, 1.
MUNICIPALITIES ACT OF 1858 (22 Vic., No. 13.) 1. The town
of B. was duly declared a municipality in 1862, and there were
nine councillors duly elected for the whole municipality. In
1865 the municipality was, on the petition of fifty electors
thereof, duly divided into three wards by the Governor, with
the advice of the Executive Council. At the ensuing election
in February 1866, the three oldest councillors who had been
elected for the whole town retired, and one councillor was
elected for each of the three wards by the electors thereof re-
spectively. Afterwards, and during the year 1866, one other
of the councillors who had been elected for the whole town
resigned, and his successor was elected by the whole body of
the electors. The Council thus constituted imposed a rate,
and brought an action to recover the same. Held, entitled to
recover, as by section 26 of the Municipalities Act of 1858 no
advantage could be taken of any such invalidity.
Semble, that the proper course had been pursued in such
election, and that the Council was properly constituted. The
Municipality of Bathurst v. Ashworth
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