BILL OF LADING-See SHIPPING, 1.

BY-LAW-See MUNICIPALITIES ACTS, 2.
BETTING ACT-See CRIMINAL LAW, 2, 9.

2. Wagering contract-Illegality-Con-
tract collateral only.] The declaration stated
that the plaintiff and defendant were holders
of tickets in a sweepstakes on a horse-race then
about to be run; and by the defendant's
ticket, under the conditions of the sweep-
stakes, the defendant was entitled to be paid
out of the funds of the sweepstakes, by the
holder, a certain sum, in the event of a horse
ACT. See CUSTOMS named "M" winning the race.

CARRIER-See NEGLIGENCE, 1, 4.
CENSUS ACT-See CROWN Lands, 2.
CHALLENGE OF JURY-See CRIMINAL
LAW, 5.

CONSTITUTION
DUTIES, PARLIAMENT.

-

And by the

plaintiff's ticket he was entitled to be paid a
certain sum, in the event of a horse named “O”
CONTRACT OR AGREEMENT-Non-accept-
winning the race. And thereupon, in con-
ance of bills of exchange-Plea of cross-action sideration of the plaintiff undertaking to pay
that the plaintiffs sold the goods before maturity the defendant out of any moneys received by
of the bills Replication Demurrer.] Cross de- the plaintiff for the said sweepstakes, by virtue
murrers. Declaration stated that in considera- of his said ticket, £100 in the event of "O."
tion that the plaintiffs would buy for the winning, the defendant promised the plaintiff
defendant some oil, and would ship the same to
that he would, out of any moneys coming to
Melbourne, the defendant promised the plain him from the said sweepstakes, by virtue of
tiffs that he would accept all bills of exchange his ticket, pay the plaintiff £100, in the event
drawn upon him for the price of the oil, upon of the said "M." winning. Averment that
such bills being duly presented to him at
"M." won the race. Averment of performance
Sydney for acceptance. Averment that the of all conditions precedent. Breach, that the
plaintiffs purchased and shipped the oil, and defendant did not pay the plaintiff the said
drew two bills of exchange for the price at 90
sum of £100 out of the moneys received by
days after sight; that the bills were duly pre-him from the funds of the said sweepstakes by
sented, but that, although all conditions, &c., virtue of his ticket, nor any portion thereof.
were performed, the defendant refused to accept Demurrer and joinder. Held, that the contract
the bills. Whereby, &c. Plea, as a set-off by declared upon was not a wager; it was no
way of cross-action, that it was a term of the
more than an agreement between the plaintiff
said contract that the oil should be given up to and the defendant to share in the winnings to
the defendant in Melbourne, on payment of which either may become entitled. Judgment
the bills at the maturity thereof; that the de- for the plaintiff. BARRY v. HEGARTY 64
fendant was always ready and willing to pay
the bills at maturity, as the plaintiffs well COSTS-Costs in slander-21 Jac. I., c. 16, sec.
knew. Breach, that before the maturity of the 6-11 Vic. No. 13, sec. 1.] Sec. 6 of 21 Jac.
bills the plaintiffs delivered the oil to their I., c. 16, is impliedly repealed by sec. 1 of the
agents at Melbourne, and wholly neglected and Defamation Act (11 Vic. No. 13), the Legisla-
refused to deliver the same to the defendant, ture having by the latter Statute expressed
and caused the oil to be sold at a price below
an intention to place actions for words spoken
its value. Whereby, &c. Demurrer to the on the same footing, as regards costs and
plea. Replication that it was a term of the other matters, as actions for written slander.
contract that the defendant should accept the So held by the Privy Council, upholding the
bills, when duly presented to him for accept- judgment of the Supreme Court. DAVIES v.
46
ance. Demurrer to the replication. Held, HARRIS (NO. 1, P.C.)
that the conditions set out in the plea as to 2. Taxation-Five actions by different
the acceptance of the bills of exchange and the plaintiffs against the same defendant—Appor-
delivery of the oil, were separate and indepen- tionment of costs of instructions for brief.]
dent conditions of the contract, as stated in the Five actions of ejectment were brought by
declaration and plea; and that the subsequent different plaintiffs against the same defendant
averments as to the defendant being ready and in respect of different pieces of land. Verdicts
willing to pay the bills at maturity, and that for the defendant. On taxation of the de-
the plaintiffs so knew, showed that the defendant fendant's costs, the prothonotary allowed 1581.
did not intend, in refusing to accept the bills, for costs of instructions for brief, and appor
to repudiate or refuse to perform the contract. tioned the amount equally between the five
The promise to accept the bills does not, under cases, allowing an additional sum of 101. in one
the circumstances set out in the pleadings, so case for extra work done in it. Held, on
go to the root of the contract as to entitle the motion by the defendant to review taxation,
plaintiffs to treat the breach of that promise as that the prothonotary had power to make an
a repudiation of the entire contract. The plea, equal apportionment of the costs in question,
therefore, is good. Reading the plea and re- and that the Court would not interfere with
plication together, it does not appear that the his discretion in making such apportionment.
acceptance of the bills was a condition pre- BROWN v. WALKER (No. 2)

-

273

3. - Attachment for non-payment of costs- ant held a bag from which persons drew
See ATTACHMENT.

CREDITORS' REMEDIES ACT-See EXE-
CUTION, 2.

CRIMINAL INFORMATION-See CRIMINAL
LAW, 4.

tickets, for which they paid. Some of the
tickets represented prizes of various amounts,
which were paid to the holders of such tickets,
and some represented blanks. Held, on appeal
(Windeyer, J., dissenting), that the conviction
was right. It may be that the defendant was
conducting a lottery; but he was also playing
a game within the meaning of the Statute. R.
v. Li Chi (2 N.S.W. L.R., 189) questioned.
R. v. EAMES
118

4. -Criminal information Refusal of
Attorney-General to prosecute-Appeal to Full
Court.] Where a person has been committed
CRIMINAL LAW-Illegally using-46 Vic. for trial by a magistrate, and the Attorney-
No. 17, sec. 155-Evidence.] The defendant General has afterwards refused to prosecute,
was summarily convicted on an information the Full Court will not act as a Court of
which charged that he did unlawfully take, Appeal from his decision by directing a crimi-
for the purpose of working, two horɛes of R. nal information to be filed unless very special
and W., without the consent of the owners or circumstances are shown. REG. v. MCKAYE 123
the person in lawful possession thereof. From
5.
the evidence it appeared that the defendant
Challenge of jurors-Criminal Law
asked R. and W. for a change of horses at one
Amendment Act (46 Vic., No. 17), ss. 1, 2, 336
of their changing stations. R. and W. refused-Felony committed before the coming into opera-
to allow the defendant to have the horses, but, tion of Act.] The prisoner, on his trial for a
at his request, gave him an order for hay and felony committed by him before the coming
corn. On the defendant's arrival at the into operation of the Criminal Law Amendment
station the defendant saw the groom in charge, Act, peremptorily challenged eight jurors, and
and asked for some horses. The groom said claimed to further challenge jurors to the
that he could not give any horses without an
number of twenty. The presiding judge re-
order from his employers. The defendant fused to permit any further challenge, and the
thereupon presented the order from R. and prisoner was convicted. Held, that the judge
W., for the hay and corn, when the groom, acted erroneously. The right of a prisoner, on
who could only read print, seeing the names of his trial for felony, to challenge twenty jurors,
R. and W. on the order, and recognising their is one of the rights preserved by section 1:
signature, allowed the defendant to take the sections 2 and 336 do not apply so as to
limit the right of challenge in the case of a
horses and use them. Held, on motion for a
prohibition, that the facts were sufficient to felony committed before the coming into
support the conviction. The horses were not operation of the Act. Conviction set aside.
R. v. KEYS
135
obtained with the permission of the person
lawfully in charge thereof. Ex parte WAL-

TON

110

2.—Betting Suppression Act (39 Vic. No. 28),
secs. 1,3-" Place."] The defendant was con-
victed on an information charging that he did
use a certain place, to wit, the St. Leger Stand
enclosure, Randwick Racecourse, for the
purpose of receiving money as a consideration
for a promise to pay thereafter to a certain
person a sum of money on an event relating
to a horse-race. The evidence was that he was
standing in the St. Leger Reserve among other
people, calling out the odds on different horses,
and was afterwards standing and walking
about with others while the race was being run.
There was also evidence that the defendant
made cash bets. Held, on special case stated,
that the conviction was wrong. The defend-
ant was not using a "place' within the
meaning of the Act WATERS v. Cox

113

3.-Gaming-The Big Bonanza-Vagrancy
Act (15 Vic. No. 4), s. 3.] The defendant was
convicted before magistrates on an information
which charged him with playing in an open
and public place with an instrument of gaming
at a game of chance, to wit, the "Big
Bonanza." The evidence was that the defend-

6. -Misdemeanour committed on high seas
Jurisdiction of Court of Quarter Sessions-
12 & 13 Vic., c 96-Sentence.] The prisoner
was convicted at Quarter Sessions of attempt-
ing, on high seas, to steal from the person, and
sentenced to five years' penal servitude. Held,
that by section 1 of 12 & 13 Vic., c 96, the
Court had jurisdiction to try the prisoner.
Held, also, that as the special case did not state
the sentence imposed, the Court could not take
judicial notice of the sentence, which, semble,
was illegal. R. v. PRICE.

139

7. -Sentence of five years' penal servitude
-Common Law misdemeanour-Habeas Corpus
-46 Vic. No. 17, ss. 4, 379, 427.] The appli-
cant for a rule for a habeas corpus had been
convicted at Quarter Sessions of attempting,
on the high seas, to steal from the person, and
sentenced to five years' penal servitude. Held,
that such sentence was illegal. The latter part
of section 329 of the Criminal Law Amendment
Act (46 Vic. No. 17) does not apply to a person
convicted of a misdemeanour at Common Law,
for the punishment of which no provision is
made by the statute law. Held, also, that the
prisoner had pursued the proper remedy by
applying for a rule for a writ of habeas corpus;
and that such remedy was not taken away by

section 427 of the Act. Ordered that the
prisoner be discharged from custody. Re
PRICE

-

140
8. Criminal Law Amendment Act (46 Vic.
No. 17), s. 46-“ Fraudulently allures, takes
away or detains."] Section 46 of the Criminal
Law Amendment Act enacts that "Any person
who fraudulently allures, takes away, or detains
any female under the age of 21 years out of the
possession and against the will of any person
having lawful charge of her, with intent to
marry or carnally know her, shall be liable to
penal servitude." The prisoner, being charged
on an information following the words of this
section, with taking a girl from her parents
with intent, &c., the judge ordered the infor-
mation to be amended by striking out the
word "fraudulently." Held, that the judge
was right, inasmuch as the word "fraudu-
lently" in the section is unnecessary. Per
MARTIN, C.J., and WINDEYER, J. The word
"fraudulently" governs the word "allures,"
but not the words "takes away or detains."
Per FAUCETT, J. That word governs the rest
of the section. R. v. SPOONER
191

-

9. Information Duplicity Betting
Houses Act (39 Vic. No. 28), secs. 3 & 4.] The
appellants were convicted and fined under the
Betting Houses Act (39 Vic. No. 28), on an in-
formation which charged that they did use a
place for the purpose of money being received,
&c.; and that they did unlawfully receive in
the said place, on the said date and other
dates subsequent thereto, various sums of
money, &c. Held, that only one offence was
charged, namely, that constituted by section 4
of the Act. The information was therefore
held to be good. ANDERSON v. SPOFFORTH 286
10. -Plea of autrefois convict-Not avail-

able when former conviction quashed-Time for
pleading by Crown.] A plea of autrefois con-
vict is not supported by proof of a conviction,
which has been quashed. The Crown may at
any time join issue on such a plea. R. v.
MOWATT
289
CROWN LANDS ACTS-Selection under sec.
19 of the Alienation Act of 1861 of land in gold-
field-25 Vic. No. 1, sec. 19.] Special case.
Ejectment. Plaintiff took up the land in
question as a mineral C.P. under sec. 19 of the
Alienation Act of 1861. Defendant was an ap-
plicant under the Mining Act for a lease of the
same land. Held, that the plaintiff's selection
was bad. The words "Crown lands" in sec. 19
have the same meaning as those words in sec.
13, qualified as they are by the subsequent
words of the section. Therefore, Crown lands
within a proclaimed goldfield cannot be taken
up as a Mineral C.P. under sec. 19. Judgment
for the defendant. Wood v. SCOTT.

2.

July, 1884. The defence, as to both portions,
was that the selections were on a reserve from
sale on 2nd January, 1874, "pending selection
of railway line and other public purposes,"
made under sec. 4 of the Crown Lands Aliena-
tion Act of 1861. The area reserved was de-
shed of Port Hacking Creek and Port Hacking,
scribed as
"The Crown lands within the water-
from its source downwards to the sea." A
that the land was within two miles of the
further defence as to one of the portions was
village of Clifton, containing 100 inhabitants
according to the last census, which was a village
within the meaning of sec. 13 of the Crown
Lands Alienation Act of 1861. To prove this
part of his case, the defendant put in evidence
the census returns laid before Parliament in
pursuance of sec. 11 of the Census Act (44 Vic.
Clifton"
No. 2), in which the population of “
was put down as 385. He further proved that
the land in question was within two miles of a
collection of about 100 houses and public build-
ings, known as Clifton. Verdict for the defend-
Held, that the purpose for which the re-
serve was notified, namely, "pending selection
of a railway line and other public purposes,"
was a purpose which came within the meaning
of sec. 4 of the Crown Lands Alienation Act.
Held also, that the description of the area re-
served was sufficient; there being a statement of
facts from which the metes and bounds of the
proposed reserve could be easily ascertained.
Held further, that one portion was proved to be
within the population areas as defined by sec. 13
of the Crown Lands Alienation Act of 1861.
It is not necessary that a village in contempla-
tion of that section must be one recognised and
laid out by the Government. The evidence
having shown that the selection was within two
miles of the centre of the village, the fact that
no defined boundaries of the village were

ant.

proved was immaterial. The proper mode of
proving the population was to put in evi-
dence the return made to Parliament in pur-
suance of sec. 11 of the Census Act; and the
word "Clifton" in the return meant the village
of Clifton. Rule for a new trial refused.
BROWN v. WALKER (No. 1)
- 160

3. -Selection of measured portion partly on
reserve-Proof that at time of selection land was
Crown lands-Partial rescission of reserre—
Evidence that land was a measured portion.]
Where a conditional purchase is made of a
measured portion, part of which is within a
reserve, the conditional purchase is bad.
Quare, whether it is necessary for a person
claiming under a conditional purchase to show
that the land at the time of selection was Crown
lands. Circumstances considered, which will
amount to primâ facie evidence of the fact.
The Crown has power to make a partial res-
cission of a reserve. What evidence considered
sufficient to show that land selected was a

Reserve pending selection of railway measured portion. HEINZ V. WALKER. - 166

4.

line and other public purposes-Description of
area reserved-Population area.] Ejectment to
-Pastoral tenant Apportionment of
recover possession of two measured portions, rent of land selected on run-25 Vic. No. 2, sec.
conditionally purchased by the plaintiff on 17th | 13, sub-sec. 5, & sec. 18-39 Vic. No. 13, sec.

was defended by his solicitor, and convicted.
Held, that the Court could not interfere with
the discretion vested in the judges of the
District as well as Supreme Courts, in order
to enable them to preserve order, and that
even if they could, the prisoner having been
defended by his attorney, who was a counsel
within the meaning of the Criminal Law Con-
solidation Act, had not been deprived of any
43
legal right. R. v. O'NEILL

35.] A pastoral tenant under the Crown | the prisoner refused to accept a postponement,
Lands Occupation Act of 1861 (25 Vic. No. 2) of
land in the second class settled districts, is
entitled to an apportionment of rent in respect
of land taken out of his lease by conditional
purchase or prelease. MCCULLOCH V. ABBOTT
212
CUSTOMS DUTIES-Power to impose duty
on substitute for dutiable article-42 Vic. No.
19, s. 133-18 & 19 Fic. c. 54, ss. 1, 45.] Secs.
1 and 45 of the Constitution Act (18 & 19 Vic.
c. 54) confer on the Legislature of the colony
plenary power of legislation, comprising within
their scope the enactments contained in sec.
133 of the Customs Regulation Act (42 Vic. No.
19). The Governor was, therefore, authorised
by the latter section in imposing a duty of ld.
per lb. on stearine, as being, in the opinion of

the collector of customs, a substitute for
candles. So held by the Privy Council, revers-
ing the decision of the Supreme Court.
APOLLO CANDLE Co. v. POWELL (P.C.)

4

1.

2. Finding of judge.-See NEGLIGENCE,

Appeal

3.
PRACTICE, 1.

4.

-

Security for costs. - See

Adjournment of appeal to judge in
Chambers.—See PRACTICE, 2, 3.

EASEMENT-Flowing water.-See MINING

Аст, 2

ESTOPPEL-By matter of record. See
DEFAMATION.

EVIDENCE-Sale of Poisons Act (40 Vic. No.
9), sec. 16-Burden of proving registration lies
on defendant.] The applicant was convicted,
under sec. 16 of the Sale of Poisons Act, of
having sold opium without due authority. The
prosecutor put in evidence a copy of the
Gazette, published in February, containing a
list of the persons registered for the sale of
poisons. That list did not contain the de-
fendant's name. This evidence having been
objected to, on the ground that the section
directed that the list should be published in
the month of January: Held, on motion for a
prohibition, that, whether or not the Gazette
was rightly admitted in evidence, the burden
of showing that he was duly registered lay on
the defendant, and that the conviction was
therefore right. Rule discharged, without

DAMAGES-See NEGLIGENCE 2, SHIPPING.
DEFAMATION Estoppel-Declaration in
libel-Plea, former action for libel in different
terms, but conveying same imputations, and plea
of truth of same and verdict for defendants.]
Το a declaration in libel the defendants
pleaded, by way of estoppel, that the plaintiff
had brought a former action against the
defendants in respect of a libel relating to the
same subject matter and conveying the same
imputations, although in language altogether
different; that in answer to that former action
the defendant pleaded that the alleged libel
was true, and that its publication was for the
public benefit; that the jury in the action
returned a verdict for the defendants; and
that the judgment of the Court was that the
plaintiff should take nothing by his writ.
Demurrer and joinder. Held, that the plea was
bad. The jury might find one publication
justifiable, but might not approve of the other.
Semble, per MARTIN, C.J.: That if the defend-fees.-See
ants at the trial were to give evidence of
the judgment in the former action, the plaintiff
would be estopped from denying the truth of
such of the findings of the jury in that
action as were material in the present action.
MCELHONE v. BENNETT -

2. Costs in slander-See COSTS.
DISCONTINUANCE-See ARBITRATION, 1.

-

262

A bar-

costs.

2.

R. v. AH JONG

3.
Law, 1.
4.
LANDS, 2.

Of contract to pay arbitrators their
ARBITRATION, 1.

Of illegally using.-See CRIMINAL

Of population area.-See CROWN

DISTRICT COURT-Right of judge to EXECUTION-Execution issued after pay-
exclude counsel Discretion Criminal Lawment, but before entry of same on record of
Amendment Act, s. 347.] The prisoner was Small Debts Court-Trespass.] Action of
tried at Goulburn Quarter Sessions.
trespas. The defendant obtained a judgment
rister, who was a Crown prosecutor for the against the plaintiff in the Small Debts Court.
colony, appeared for prisoner, whereupon the The plaintiff on the same day paid the judg-
judge refused to allow him to conduct the ment and costs, but such payment was not
defence, although he had obtained leave to do entered in the record-book. Afterwards the
so from the Attorney-General, but offered to defendant, on making inquiries, was told at
postpone the trial to enable the prisoner to the office of the Court that the amount of the
instruct other counsel. After consultation, | judgment had not been paid: and he there-

upon signed a præcipe for a writ of fi. fa. He
was not aware until after the writ had been
executed that the plaintiff had paid the
amount of the judgment. The writ having

sec. 6 of Lord Tenterden's Act.-CHRISTIAN v.
WOODS

been executed by the bailiff of the Court, the GAME-See Criminal Law, 3.

plaintiff brought the present action of trespass

in the District Court. Verdict for the de-

fendant. Held, on motion for a new trial, HABEAS CORPUS-See CRIMINAL LAW, 7.
that the action would not lie. The defendant
obtained a regular judgment, which was in

24

force at the time of the issuing of the writ | ILLEGALITY—See CONTRACT, 2.
and the delivery of it over to the bailiff. He
took the proper steps before obtaining the
writ of fi. fa In the absence of notice and
the want of reasonable and probable cause,
no action would lie against him for what
he had done. Rule discharged. DUCY v.
STEVENS
100

ILLEGALLY USING-See CRIMINAL LAW, 1.
INSOLVENCY-Stays proceedings on attach-

2.

ment.-See ATTACHMENT.

2. Leave to issue execution on foreign
judgment.-See EXECUTION, 2.

JEOFAILS-Statute of.-See ARBITRATION, 1.
JUDGE-Discretion of-See DISTRICT COUrt.

Under sec. 91 of C.L.P. Act.-See

:- 2.
PRACTICE, 4.

3.

Payment of-See EXECUTION, 1.

-

JURISDICTION
See CRIMINAL LAW, 6.

Of Quarter Sessions

Creditors' Remedies Act (19 Vic. No.
12)-N.Zealand judgment—Bankruptcy of defen-
dant after judgment - Memorial not written in
words at length.] Motion to set aside order of
judge in Chambers with costs, giving leave to the
plaintiffs to issue execution on a memorial of a JUDGMENT-Foreign-See EXECUTION, 2.
New Zealand judgment, on the grounds
1. That since judgment the defendant had
been made bankrupt in New Zealand. 2. That
the particulars of the amount recovered were
not written in the memorial in words at
length. 3. That the judge in Chambers had
no jurisdiction to award costs to the plaintiffs.
Held, that in exercising the powers conferred
by the Creditors' Remedies Act, the Court
should be guided by the same principles as
would guide an English Court in an action
upon a foreign judgment; and that as a plea
of bankruptcy would be a bad plea to an action
on such a judgment, the mere fact of the
defendant's bankruptcy would not be a reason
for the Court interfering with the order of the
judge in Chambers.
But held, that as in the

memorial the amount recovered was not set
out in words at length, but was merely stated
in figures, the order should be set aside. This
requirement of section 2 of the Act is im-
perative, and must be fulfilled by the person
seeking to take advantage of its provisions,

BANK OF NEW ZEALAND v. PROUDFOOT

177

FLOWING WATER-See MINING ACTs, 2.
FRAUD-False representation-Purchase of
shares-Lord Tenterden's Act (9 Geo. IV. c. 14),
s. 6.] The defendant being instructed by a
company to sell on commission certain new
shares which the company intended issuing,
falsely represented to the plaintiff that the
company was under no liabilities whatever,
and that the property of the company was
unencumbered; and by means of such mis-
representation he induced the plaintiff to
purchase certain of the said shares. Held,
that such representation was not as to the
"character, conduct, credit, ability, trade, or
dealings of any other person, to the intent
that such other person may obtain credit,
money or goods upon" within the meaning of

JURY-Challenge of - See CRIMINAL LAW, 5

LANDLORD & TENANT-Apportionment of
rent.-See CROWN LANDS, 4.

MEASURED PORTION- Evidence of-See
CROWN Lands, 3.

MINING ACTS-Intending applicant for a
mineral lease-Entry on Crown lands for the
purpose of marking boundaries-Mining Act (37
plaintiff's land. Plea, that the said land was
Vic. No. 13), sec. 56, sub-sec. 3.] Trespass to
Crown lands, and that the defendant was the
intending applicant for a mineral lease of the
said land, and that he marked the corners of
the said land, and cut trenches to indicate the
general directions of the boundary lines, in
accordance with the provisions of the Mining
Act and regulations thereunder, which are the
the plea was good. A person has a right to
alleged trespasses. Demurrer. Held, that
enter Crown lands for the purpose of marking
the boundaries prior to making an application
for a mineral lease of the same.

HORN

GREEN V.

87

2. -Flowing water-Rights of riparian
owners-Mining Act (37 Vic. No. 13), sec. 15.]
Declaration-1. That the defendant wrongfully
erected a dam and other obstructions on a
creek flowing through the plaintiff's run, and
thereby interrupted and obstructed the flow
of water of the said creek, and diverted the
stream from its natural course, and prevented
the water thereof from flowing into or through