that the contract sued upon was so entered into by them exclusively; (ii.) that the whole of the potatoes shipped by FORTH AND LOSE. Stenhouse & Co. were not of the kind known in the trade as red skin potatoes; (iii.) that there was a reasonable custom of produce merchants, known to all parties, of inspection at the Brisbane wharf of potatoes shipped under a f.o.b. contract in Tasmania, to see whether the class of goods ordered had duly arrived. He allowed the appeal, reversed the judgment of the Justices, and directed judgment to be entered for the defendant Forth. He, however, stated a special case for the opinion of the Supreme Court, in which, after setting out the evidence and the facts found by him, the following questions were submitted: Whether he was right in holding that there was not sufficient evidence before him, either that Forth had entered into a contract or that plaintiffs had performed their part of the contract; whether he was right in holding that, assuming Forth to have been a party to the contract, there was not sufficient evidence before him that Forth had failed to perform his part of the contract; whether evidence of custom was admissible for the purpose of ascertaining (importing a term) all the terms of the contract; and whether he was right in reversing the decision of the Justices.
Fowles, for the respondent, took the preliminary objection that no right of appeal existed. The proceedings in the District Court were a re-hearing of the case. O'Neil v. Bishop (1). The findings of the District Court Judge are to be regarded as the findings of a jury. Pilmer v. No. 1 South Oriental and Glanmire Gold Mining Co., Ltd. (2). As to the manner in which Courts of Appeal regard the findings of a jury, Lishman v. Christie & Co. (3), Allen v. Quebec Warehouse Co. (4), Colonial Securities Trust Co. Ltd. v. Massey (5), Coghlan v. Cumberland (6), Lodge Holes Colliery Co. v. Mayor of Wednesbury (7).
The decision on appeal when pronounced is a finding by the District Court Judge on the matters before him. O'Neil v. Bishop (1). And no appeal is competent, except on a question of law arising upon the facts of the case. The District Courts
(1) 1907, St. R. Qd. 204.
(2) 1900, 10 Q.L.J. 87, at p. 95.
(3) 1887, 19 Q.B.D. 333.
(4) 1886, 12 A. C. 101.
(5) [1896], 1 Q.B. 38.
(6) [1898], 1 Ch. 704.
(7) [1908], A.C. 323.
Act, 1891, s. 159 (1). With the exception of the last, the FORTH AND LOSE. questions here submitted are questions of fact concerning the sufficiency of the evidence given, and this Court cannot entertain them. As to the last question, it merely amounts to whether there was any evidence, and clearly there was.
[REAL J. Section 159 of the District Courts Act, which gives the right to appeal, seems explicit.]
E. A. Douglas, for the appellant: A distinction exists between cases where a District Court Judge is acting as a Judge of first instance, and cases where he is re-hearing a case from an inferior Court. It has been decided that the findings of fact of a District Court Judge sitting as a Judge of first instance, are to be accepted in the same way as findings of fact by a jury, but no case decides whether this rule is applicable also to cases where the District Court Judge is sitting as a Court of Appeal from Justices. The rule that in the former case his findings on matters of fact are to be treated as findings of a jury, does not apply in the latter case where he does not hear the evidence or see the witnesses. Cf. Paley on Summary Convictions, 8th Ed., p. 396. The District Court is in the same position as any other Court of hearing.
REAL J. In this case the learned District Court Judge entered certain findings of fact, and evidence undoubtedly was given on which he could have come to the conclusions embodied in those findings. The only appeal given to this Court from a decision by a District Court upon the hearing of an appeal from Justices is that given by s. 159 of the District Courts Act, 1891, which provides that the Judge may state in the form of a special case for the opinion of the Supreme Court any question of law arising on the facts of the case." This power of appeal applies only to questions of law. Unless a right of appeal is given by statute, no appeal can be entered, and consequently on questions of fact, the decision of the District Court Judge is final. The only question, then, which we can entertain is that asking, "Was I right in reversing the decision of the said
(1) 55 Vic., No. 33, s. 159.
Justices? If, by that, the learned Judge means whether
he had authority or power to do so, it seems to me that we can
come to no other conclusion than that, the facts having been
found as he has stated them, the learned Judge was justified
I therefore think
in reversing the decision of the Justices.
the appeal must be dismissed, with costs limited to one day.
CHUBB and POWER JJ. concurred.
Appeal dismissed, with costs limited to one day.
Solicitors for appellants: Wilson & Hemming.
Solicitors for respondent: Atthow & McGregor.
STENHOUSE V.
FORTH AND LOSE.
ADMINISTRATION—
See PROBATE AND.
COMPANY--Proof of incorporation-Carrying
on business as such-Admissions prima facie
evidence-Contract by company---The Companies
Act of 1863 (27 l'ic., No. 4), s. 47.
The defendants were sued in the District
Court as an incorporated company, in the
of Goombungee Co-operative Dairy
Company, Limited. They accepted service
of the summons, gave notice of intention to
defend in the name of the company, and ap-
peared by counsel, instructed by the company's
solicitors. The above name of the company
was placed over the door of their offices, and
was used on their correspondence paper, and
business was carried on by the company at
Goombungee through a manager. Judgment
of non-suit was given by Noel D.C.J., on the
ground that plaintiff had not proved the in-
corporation or registration of the Company.
On appeal,
Held, that sufficient evidence of the incorpor-
tion of the defendant company had been given.
LIPKE v. GOOMBUNGEE CO-OPERATIVE DAIRY
Co., LTD.
F.C. 103
And see PRACTICE--Service.
1. Agreement for sale of mining tenement
--Reservation to vendor of one-fifteenth share
therein--Subsequent declaration that the fifteenth
share was held in trust-Sale of the mining
tenement by the purchaser thereof to a company
Claim by original vendor for one-j
e-fifteenth of the
share capital of the company as representing his
reservation--Interpretation of agreement.
By a memorandum of agreement, dated
April, 1899, H. sold a mining tenement to M.
The conditions of sale were that H. should
receive a certain sum of money, and also should
retain one-fifteenth fully paid-up share in this
mining claim. M. was given the sole manage-
ment and control, and he agreed to develop
the tenement. It was understood that M. had
power to sell the mining claim to a company
for the purpose of having it worked and
developed. In March, 1900, M. executed and
registered a declaration of trust, stating that
one-fifteenth interest in the mining claim was
held by him in trust for H., Ithe said one-
fifteenth share being a fully paid-up share or
interest in the said claim and any company
formed or associated to work the said claim."
In April, 1900, H. sold one-sixth of his interest
![[ocr errors]](https://books.google.co.kr/books/content?id=PwoxAAAAIAAJ&hl=ko&output=html_text&pg=PA230&img=1&zoom=3&q=editions:UOM39015065586706&cds=1&sig=ACfU3U2_33F-N3PUj4iP8YSHUq32-7ycGg&edge=0&edge=stretch&ci=352,1422,11,8)
CONTRACT-Continued.
in the claim to A., and in April, 1903, he sold
the remainder of his interest to B. During this
time M. worked the claim. In September,
1905, M. entered into an agreement with L.,
and in pursuance of that agreement, L. floated
a company to take over the mining claim, and
paid to M. £5000 and 8800 fully paid-up shares
as the purchase price thereof. The shares in-
creased in value. In an action brought by A.
and B. to recover one-fifteenth of the capital
of the company in paid-up shares-
Held, that the declaration of trust could not
be used for the purpose of construing the agree
ment of April, 1899, and that it was in itself
incapable of being enforced.
Held, that on the proper interpretation of
that agreement, M. was a trustee for sale of
the joint interests of H.'s assigns and himself,
and was only liable to pay to A. and B. one-
from the sale of the mining claim.
fifteenth of the money and shares he received
BRENNAN AND ANOTHER V. MORPHETT.
2. -Sale of goods-Implied warranty——
Witness for particular purpose" Good order and
condition "Merchantable condition "-Mis-
representation-Broker-Mutuality-Sale notice
-Admissibility of evidence to add a verbal
warranty or condition to a broker's sale note-
The Sale of Goods Act of 1896 (60 Vic., No. 6),
s. 17.
![[ocr errors]](https://books.google.co.kr/books/content?id=PwoxAAAAIAAJ&hl=ko&output=html_text&pg=PA230&img=1&zoom=3&q=editions:UOM39015065586706&cds=1&sig=ACfU3U2_33F-N3PUj4iP8YSHUq32-7ycGg&edge=0&edge=stretch&ci=748,1159,12,8)
A baker purchased certain flour through a
broker from R. and directed the broker to draw
up a sale note of the agreement. The broker
made a note in writing which in form purported
only to be an agreement to sell flour of a certain
brand and manufacture in good order and
condition." The flour was delivered to H.,
who, discovering that it was unfit to use by
itself for making first-class bread, repudiated
the contract, on the ground of a breach of a
condition that the flour was to be of first-class
quality and suitable for making first-class bread.
He alleged this condition was embraced by the
words " good order and condition," and that
at the time of making the contract the broker
verbally made this stipulation as to quality.
Held (per Cooper C.J. and Power J.), that the
above words did not import a warranty or con-
dtion, that evidence was inadmissible to add
a verbal warranty or condition to the written
contract, and that there was no evidence which
would render s. 17 of The Sale of Goods Act of
1896 applicable to the case,
On the trial of the master and the mate of
a British vessel for the wilful murder of a
sailor on the vessel, an application was made
for an order to compel the accused to produce
the ship's articles.
Held, that the rules for compelling discovery
of documents do not apply to criminal trials,
and that the application must be refused.
R. 2. NARAMATSU HAMIGUCHI AND ANOTHER.
Chubb J. 224
3. -Evidence--Confession Circumstances
when confession admissible--Confession in
answer to questions by constable---The Criminal
Law Amendment Act of 1894 (58 Vic., No. 23),
to writing, read over to R., and signed by him.
The constable stated he used no threat and
made no promise to induce these confessions;
but he did not caution R. On being charged at
the Police Court this statement was produced,
and the prisoner said he had read every word
of it and signed it.
At the trial of R. for wilful murder the state-
ment first made was admitted in evidence with-
out objection. The conversations which took
place after the making of the first statement
and the subsequent statement were also ad-
mitted, but objection to their admission was
taken by counsel for the prisoner. On a Crown
case reserved:
R. went to a constable in New South Wales,
saying he wished to give himself up to justice,
and alleging that he had committed arson
and homicide in Queensland. The constable
reduced R.'s statement to writing, and after
it had been read over to him R. signed it.
The constable, thinking R. was troubled
mentally, and being doubtful of his veracity,
asked certain questions of R. He used no
threat or inducement, but he administered no
caution. R. was remanded to Queensland, and
on the morning after his arrival a constable
visited him, and after inquiring about his
personal welfare asked at what particular
place the murder was committed. R. told
him, and then a conversation ensued, in which
many questions dealing with particulars of
the murder and the place where committed
were asked by the constable and answered by
R. Inquiries based on the information thus
given were made, and about a month later the
constable said to R., "You have not told the
truth about the murder," to which R. replied,
"Get a sheet of paper and I will tell you all."
He then made a statement. While this was
being done many questions were asked by the
constable for the purpose of obtaining informa-
tion on which investigations concerning the
alleged murder could be made, and answers
were given by R. The whole statement, in-
cluding the questions and answers, was reduced
Held, the evidence was properly admitted.
R. v. RILEY
Manslaughter--Neglect of parents to
procure medical aid--Neglect of child ending in
death-The Criminal Code, ss. 286, 303.
R. v. SMITH AND SMITH 1908, Q.W.N. 13
--Perjury--Judicial proceeding---Crim-
inal Code, ss. 119, 123, 193, 194--Inquests on
Fires Act of 1863 (27 Vic., No. 12)----The In-
quests of Death Act of 1866 (30 Vic., No. 3).
An inquest held by a Police Magistrate into
the cause or origin of a fire is insufficient to
ground an indictment for perjury or making a
false statement thereat, unless the inquest has
been held at the written request of two persons.
Quære, if with such request it is valid.
Semble, that such an inquest is not a judicial
proceeding.
Chubb J. 83
---Poisons-Opium-Possession of opium
by a person to whom a medical practitioner had
prescribed its use-The Aboriginals Protection
and Restriction of the Sale of Opium Act
and Use of Poisons Act, 1891 (35 Vic., No. 31).
1897 (61 Vic., No. 11), ss. 21 and 22-The Sale
The defendant, a Chinaman, who had been
for many years addicted to the smoking of
opium, was suffering from dyspnoea, and con-
sulted a medical practitioner, who prescribed
"Ext. opii, 2ozs. liquid, for smoking purposes."
By virtue of this prescription, the defendant
obtained two ounces of opium from a chemist.
Protection and Restriction of the Sale of Opium
He was prosecuted under The Aboriginals'
Act, 1897, for unlawfully having opium in his
possession.
Held, that he had not committed an offence
against that Act.
MORONEY V. QUOK YEN.
8. -And see KING v. AH LIN.
|