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THE QUEENSLAND LAW REPORTER.

SEPTEMBER 4, 1908.

Per Real J.: Befo re a conviction could be made, proof must be given that notice, containing the information required by s. 29 of The Liquor Act of 1886, had been given within the prescribed time.

Justices have power to recall a witness for the purpose of obtaining an explanation of evidence given by him, even after the case has been closed.

KELLY v. SWEENEY, Ex parte SWEENEY, 29th and 31st July, 1908, FULL COURT (COOPER C.J., REAL AND POWER JJ.) Counsel: Walsh; Stumm. Solicitors: A. H. Pace for W. J. Vowles, Dalby ; The Crown Solicitor.

48. Defamation-Privileged communication-Qualified privilege

Statement by medical practitioner to mother of patientGood
faith for protection of interest and for purpose of giving
information to person having interest -Oral defamation on
occasion and under circumstances when person defamed
not likely to be injured thereby-District CourtGeneral
verdict for defendant in action for defamation- Verdict
supported by evidence on some groundsThe Criminal Code,
8. 377, subsecs. 3, 4, 5The Defamation Law of Queensland

(33 Vic., No. 12), s. 20.
An action was brought in the District Court claiming damages for defamation.
The jury returned a general verdict for the defendant. There was evidence to
support their verdict.

Held, that as the direction given by the District Court judge to the jury was sufficient and proper, and as he did not refuse to give any proper direction requested by counsel for the plaintiff, the verdict could not be disturbed.

KNOWLES v. WYNNE, 23rd and 24th October, 1907, FULL COURT (REAL AND POWER JJ., NOEL A.J.). Counsel : Henchman ; Lilley. Solicitors : Foxton, Hobbs & Macnish, for MacDonnell, Henchman & Hannam, Cairns ; Nicol Robinson, Fox & Edwards, for C. B. Lilley, Cairns.

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49. Contract-Breach of contract-Non-delivery and conversion of

cattle--CostsTrial by jury-Verdict of jury in favour of
plainti 1,

for depriving plaintiff of costs----
Discretion-0. XCI., r. l.
By the pleadings in an action the plaintiff claimed for the non-delivery and
conversion of cattle, for damages for their detention, for specific damages for loss
of profits, and for a breach of warranty concerning the expenditure which
would necessarily be incurred for a certain purpose. At the trial the pleadings
were, to some extent, disregarded. The whole matter in dispute between the
parties was raised, which involved the issues, whether it was the intention of the
parties that specific cattle should pass to the plaintiff under an agreement between
the parties, whether there had been an accord and satisfaction of the agreement
by the plaintiff's acceptance of certain cattle delivered by the defendant, whether
there was any breach of warranty, and the amount of damage. The claim for
specific damages was abandoned. The jury found for the defendant on the
jesue of warranty, and he was allowed his costs of that issue. They found that
there was no accord and satisfaction, that the parties intended by the agreement
that specific cattle should pass to the plaintiff, and gave damages in a sum which
represented the difference in value between the property purchased by, and the
property actually delivered to, the plaintiff, and judgment was delivered in his
favour for this amount, but without costs.

Held, that under these circumstances, the plaintiff could not be deprived of the general costs of the action.

EVANS v. JOHNSTON, 9th and 10th June, 1908, FULL COURT (REAL, CHUBB AND POWER JJ.). Counsel : Feez, O'Rourke ; Walsh. Solicitors: Roberts & Roberts, for V. Drury, Dalby; A. H. Pace, for W. J. Vowles, Dalby.

OCTOBER 2, 1908.

THE QUEENSLAND LAW REPORTER.

50. Criminal law-Practice-Crown prosecutorTwo counsel for

the Crown-Right to reply-The Criminal Code, s. 619. CROWN CASE RESERVED.

Three prisoners were tried together before Miller D.C.J. at Hughenden, on a charge of killing two wethers, the property of Edmund Jowett, of Kynuna Station, with intent to steal the carcasses thereof. The Crown Prosecutor, Mr. Ross, after presenting the information, stated that Mr. Macnaughton, of counsel, with the permission of the Crown, would assist the prosecution. He then opened the facts of the case, and at the conclusion of this opening stated that Mr. Macnaughton would reply. The three prisoners were defended by Mr. Ryan, who called evidence for the defence of all three, and at the conclusion of the evidence, he addressed the jury. Three witnesses were called for the prosecution, one of whom was examined by Mr. Ross and two by Mr. Macnaughton; five were called for the defence. Mr. Ross cross-examined two of them, and Mr. Macnaughton cross-examined three of them. No objection was taken to Mr. Macnaughton examining or cross-examining any of these witnesses. Mr. Macnaughton then rose to reply, and thereupon Mr. Ryan drew the Judge's. attention to the provisions of s. 619 of The Criminal Code, and objected to Mr. Macnaughton replying, on the ground that he was not counsel for the Crown. The objections were overruled, and Mr. Macnaughton allowed to reply.

The jury found all three prisoners guilty, and they were sentenced.

The learned District Court Judge, at the request of counsel for the prisoners, reserved the following question for the consideration of the Supreme Court :Whether, under s. 619 of The Criminal Code of Queensland, in the event of more than one counsel appearing for the Crown, the right of reply is limited to the Crown Prosecutor only ?

Kingsbury, for the Crown, referred to The Criminal Code, s. 619; The Evidence and Discovery Act of 1867, s. 44.

There was no appearance on behalf of the prisoners.

Per Curiam : The procedure adopted in this case has frequently been employed in past years.

The right of reply is not limited to the Crown Prosecutor in cases where another counsel appears with him, and the conviction must be affirmed.

R. v. LESTER, 1st September, 1908, Full COURT (COOPER C.J., REAL, CHUBB. AND POWER JJ.). Counsel : Kingsbury. Solicitor : The Crown Solicitor.

51. Local Government-Prosecution on behalf of Local Authority

-Authority to prosecute-Ratification of institution of proceedingsThe Local Authorities Act of 1902 (2 Edw, VII.,

No. 19), s. 369. In 1905 and 1906, S., an officer of a Local Authority, was authorized generally, in writing under the hand of the chairman of the Local Authority, to lay complaints and information, and take all necessary legal proceedings under the Health Act, Local Government Act, and the by-laws made under those Acts, upon the alleged breach of the provisions of such Acts or by-laws. These authorities were never countermanded. A similar authority was given to S. in 1908, but not until a few hours after the complaint in this case had been laid.

Held, that S. had authority to institute and carry on proceedings for breach of a by-law against the defendant under the written authorities given in 1905 and 1906.

Held, also [following Municipality of Sandgate v. McLeod (6 Q L.). 66)], that the action of S. in instituting the proceedings had been ratified by the authority given in 1908.

Quære, whether an appeal lies to the Full Court from a decision of a Judge given on a case stated under s. 226 of The Justices Act of 1886.

SEATON v. Chen Fong YAN, 29th July, 1908, FULL Court (COOPER C..J., REAL AND POWER JJ.). Counsel : Henchman ; Lilley. Solicitors : Nicol Robinson, Fox & Edwards, for Lilley & Murray, Cairns; Foxton, Hobbs & Macnish, for Mac. donnell, Henchman & Hannam, Cairns.

THE QUEENSLAND LAW REPORTER.

OCTOBER 2, 1907.

52. Probate and administration-Probate granted by High Court

in EnglandApplication for re-sealCertified extract under
seal of High Court-The British Probates Act, 1898 (62 Vic.,

No. 10), 88. 2, 4.
RETERINCE BY REGISTRAR.

M., a domiciled Frenchman, who was possessed of property in Queensland, died, having made a will by which, inter alia, L. was appointed sole executor. Probate of this will was granted by the High Court of Justice in England to L. An application was made to the Registrar, under 0. LXXI., 1. 66, for the reseal of a certified extract of the probate under the seal of the High Court. A translation of the will, which was in French, was appended to this extract. The Registrar referred the matter to a Judge in Chambers, In support of the

lication, the following cited : In re Levi (1908 Q.W.N. 30); The Court of Probates Act (20 and 21 Vic., c. 77), s. 22; The British Probates Act, 1898, ss. 2 and 4.

REAL J. held that the document fell within the definition of "probate "in 8. 2 of The British Probates Act, 1898, and directed that it be re-sealed.

In re MONTEFIORE, 8th June, 1908, REAL J., IN CHAMBERS. Solicitors : Flower & Hart

53. 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, 1897
(61 Vic., No. 11), ss. 21 and 22The Sale and Use of Poisons

Act, 1891 (35 Vic., No. 31).
The defendant, a Chinaman, who had been for many years addicted to the
smoking of opium, was suffering from dyspnea, and consulted 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 & chemist. He was prosecuted for unlawfully having opium in his possession under The dboriginals Protection and Restriction of the Sale of Opium Act, 1897.

Held, that he had not committed an offence against that Act.

MORONEY v. Quok YEN, 4th September, 1908, FULL COURT (COOPER C.J., CHUBB AND POWER JJ.). Counsel : O'Rourke; Douglas. Solicitors : The Crown Solicitor : Morris & Fletcher.

54. Probate and administration--Joint grant of administration

Special circumstances to be shown-The Probate Act of 1867

(31 Vic., No. 9), 8. 32. This was an application for a grant of letters of administration of the estate of S. to three persons, who were the daughters of S. The remaining next-of-kin of the deceased consented to the grant.

COOPER C.J. : It has not been the practice of the Court to grant administration to three persons, but if the special circumstances show that it is desirable, and would be beneficial to the estate, a joint grant may be made. In the present case circumstances have not been shown to justify the making of such an order. [Cf. In re Corbett (5 Q.L.J. 93).]

Subsequently, on 11th September, 1908, administration was granted to two of the original applicants, the consent of the third thereto having been filed.

In re SæWELL, DECEASED, 26th June, 1908, COOPER C.J., IN CHAMBERS, Solicitors : Morris & Fletcher, for Wonderley & Hall, Toowoomba.

erORYR 2, 1908.

THE QUEENSLAND LAW REPORTER.

55. Practice-Stay of proceedings on judgment pending appeal to the

Full Court-Application to Full Court after refusal of Judge

to grant stay-0. LXX., r. 28. In an action brought by the plaintiff against M. and I., judgment was given for the plaintiff against M. for £155, and against I. for the same sum or any balance anpaid by M., with costs. Application was made by M., on summons to the Judge who tried the action, asking for a stay of proceedings pending an appeal to the Full Court. This application was refused. M. gave notice of appeal in the action, and on the following day gave notice of motion to the Full Court for a stay of proceedings under the judgment so far as it affected him, and alternatively gave notice of motion of appeal from the order of the Judge refusing to stay proceedings. The application was supported by an affidavit tending to show that the plaintiff had practically no means, and that there would be difficulty in recovering any money paid to him under the judgment, if that judgment was reversed on appeal. Held, under the circumstances,

the were sufficient grounds for the interference of the Court, and a stay of proceedings was granted on terms

A motion for a stay of proceedings may be made to the Full Court under 0. LXX., r. 28, as an original motion, even though an application has previously been refused by a Judge.

Cox v. MOSMAN AND ANOTHER (No. 2), 8th, 9th September, 1908, FULL COURT (CHUBB AND POWER JJ., Noel A.J.). Counsel : Stumm; Lukin and Wassell. Solicitors : Chambers, McNab & McSab: Morris & Fletcher.

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56. Justices--Conviction--- Formal order of conviction drawn

up after order nisi to quash conviction had been obtained

-The Justices Act of 1886 (50 Vic., No. 17) ss. 152, 224. ORDER NISI FOR A QUASHING ORDER UNDER The Justices Act of 1886.

In a case tried before Justices, no written complaint was laid, but at the hearing the defendant was verbally charged. The charge so made was entered on the depositions as “ obscene language.” The evidence showed that the defendant had used obscene language in the presence and hearing of people in a certain street, and also that he had used obscene language while standing on the edge of a verandah abutting on the street. | The hearing before the Justices occupied two days. On the first, the defendant was not represented by any solicitor. On the second day, however, a solicitor appeared for him, and, in answer to an inquiry, was told by the Justices that the charge against the defendant was “ obscene language.” The defendant was convicted, as it appeared on the depositions, of obscene language,” and was fined.

An order nisi for a quashing order was granted by Real J., on the grounds that the act charged did not constitute an offence ; that the act of which the defendant was convicted did not constitute an offence ; and that there was no evidence to support a conviction for any offence known to the law.

The motion for the order absolute first came before the Full Court on 15th May, 1908, when counsel, who appeared to show cause, obtained leave to read an affidavit of the Acting Clerk of Petty Sessions, stating that the defendant was arrested on a charge of obscene language at Brisbane Terrace Street, Goodna,” and that that charg was duly entered in the charge book, and when the case was called, that charge was read over to the defendant, who pleaded not guilty.

On the application of O'Rourke, the Court adjourned the hearing to enable an inspection of the charge book to be made. The adjourned motion came on for hearing on 11th June, when, by leave of the Court, an affidavit was read to the effect that since the adjournment, a formal conviction had been drawn np and signed by the Justices, and filed in the records of the Court of Petty Sessions at Goodna, which stated that the defendant was convicted for “ that he used obscene language in a public street, namely, Brisbane Terrace Street, Goodna.'

Macrossan showed cause. Any defect in the minute of conviction in the depositions has now been remedied by the formal conviction. The Justices Act of 1886, B. 152; Chaney v. Payne (1 Q.B. 712). And the defendant was convicted of an offence against The Vagrant Act, 1851, 8. 5. The charge was also

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THE QUEENSLAND LAW REPORTER.

OCTOBER 2, 1908.

sufficient, although it might have been made with greater particularity. * Deevy v. Abrahams (7 Q.L.J. 30). The justices took judicial notice that Brisbane Terrace Street was a public street (Simpson v. Fraser, 5 Q.L.J. 89.)

O'Rourke moved the order absolute. The case now made on the affidavits is entirely different from that appearing on the depositions taken at the hearing, and precludes argument on the first two grounds. On the third ground, he argued that the evidence was insufficient to support the charge.

COOPER C.J.: The defendant was charged before Justices at Goodna with “ obscene language in Brisbane Terrace Street, Goodna,” and he was convicted of using obscene language in a public street. The evidence, in my opinion, supports the conviction, and I see no reason why it should be disturbed. The Justices, however, should have read the charge to the solicitor in full when he asked to be informed what it was.

REAL and Power JJ. concurred, and the order nisi was discharged without costs.

KEAN v. BURROWS, Ex parte BURROW3, 15th May and 11th June, 1908, FULL Court (COOPER C.J., REAL AND POWER JJ.). Counsel : Macrossan ; O'Rourke. Solicitors: The Crown Solicitor ; W. H. Summerville.

57. Licensing law- Leaving licensed premises with liquor in

possession during prohibited hoursThe Licensing Act of

1885 (49 Vic., No. 18), s. 75, subsec. 3. A person having purchased liquor at a time not prohibited for the sale of liquor entered licensed premises at a time during which the sale of liquor was prohibited, and obtained the liquor he had purchased from a place where it had been deposited for him by the licensed victualler. He was found leaving the premises with the liquor in his possession during prohibited hours.

Held, he was rightly convicted of an offence against s. 75, subsec. 3 of The Licensing Act of 1885.

DEANE v. POPE, July 29, 30, 1908, FULL COURT (COOPER C.J., REAL AND POWER JJ.) Counsel : Stumm ; Jameson. Solicitors : O'Shea & O'Shea for W. S. Buchanan, Townsville ; The Crown Solicitor.

58. Practice-Pleading -- Striking out paragraphs of defence

Demurrer-0. XXII., rr. 27, 32-0. XXIX., r. 2.

To a claim for arrears of salary and damages for wrongful dismissal, the defendant pleaded that the plaintiff had, in 1907, been connected with a grave racing scandal at a certain place, and also stated in the defence what action had been taken by certain racing clubs against the plaintiff in regard to this racing scandal.

On an application to strike out thes, pleadings,

Held, that the first allegation, as having reference to discreditable conduct on the plaintiff's part, might constitute a defence to the action, but that the other allegation, as referring to the manner in which that conduct was regarded by other persons, should be struck out.

Bulmer v. THE OAKEY CO-OPERATIVE Dairy Co., LTD., 1st September, 1908, FULL COURT (REAL, CHUBB, AND POWER JJ ). Counsel: O'Rourke; Hart. Solicitors : Crouch & Darvall, for Eden & Groom, Toowoomba; O'Sullivan & Scott, for W. J. Vowles, Dalby.

The attention of the profession is directed to the following direction which was posted in the Registry on 24th August, 1908.

In future all orders must be endorsed with a short description of the nature of the contents, as, for example, “ Order passing accounts and allowing commission.” The word order alone is not sufficient.

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