THE QUEENSLAND LAW REPORTER

AUGUST 5, 1910.

R. Qd. 177). After the appellant had used the language he was ordered out of the shed by the stationmaster. He went out, and so did the respondent. In the station yard outside, the appellant again used offensive language and shook his fist at the respondent. The respondent thereupon picked up a stick, and the appellant immediately climbed the fence and went away. It seems to me that the appellant's actions, although he did use offensive language to the respondent, and shake his fist at him, showed clearly that he did not intend to provoke a breach of the peace, because the moment the respondent displayed a disposition to commit a breach of the peace in retaliation he ran away. I therefore think the rule should be made absolute.

REAL J. I am of the same opinion. Whatever is the proper interpretation of "public place in s. 6 of the Vagrant Act of 1851, the conviction ought to be quashed for the reasons given by Cooper C.J. But I think it difficult to distinguish the case of a goods shed from that of a coffee room in an hotel, which in Stede v. Lewis (1 Q.L.J. 137) was decided not to be a public place within the meaning of that section. That case was decided in 1883, and the Criminal Code did not by definition or otherwise make any alteration in the construction then given by the Court. (Cf. The Criminal Code, ss. 227 and 228). It is a construction which has been unchallenged for a long time, and whatever we might be inclined to think if the matter arose for the first time, it is now too late, I think, to alter the judicial interpretation then given. But I do not wish it to be considered that I decide this case on that ground. I agree with Cooper C.J. that this conviction should be quashed for the reasons he has given.

SHAND J. I also agree.

Conviction quashed with costs. CLARRISS V. LAMB, Ex parte LAMB, 22nd, 23rd February, 1910, FULL COURT (COOPER C. J., REAL AND SHAND JJ.). Counsel; Feez, K.C., and Lukin; Stumm. Solicitors: Atthow & McGregor, for Dyball, Roma; Bouchard & Holland, for Mayne, Roma.

29. Husband and wife-Judicial separation—Evidence of adultery— Admissibility of evidence of defendant against co-defendantCorroboration-Collusion-Evidence of collusion-Duty of Judge to explain privilege to witness-" Not liable to be asked or bound to answer "-Evidence Further Amendment Act of 1874 (37 Vic., No. 9), s. 3-The Matrimonial Causes Jurisdiction Act of 1864 (28 Vic., No. 29), s. 25.

By s. 3 of The Evidence Further Amendment Act of 1874, it is provided that no witness shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness shall have already given evidence in the same proceeding in disproof of his or her alleged adultery. Held, that this section is intended to be a protection to a witness, and that before any such question is allowed, the Judge at the trial should be satisfied that the witness has come voluntarily for the purpose of giving evidence, and is willing to answer questions on the subject of his or her adultery; and that it is not sufficient that the witness comes into Court, and is not prepared to refuse to give such evidence.

In a matrimonial action, the only evidence of adultery against the co-defendant was the uncorroborated evidence of the defendant, admitting adultery with the co-defendant.

Held, that there is no rule of law or practice which prevents the Judge on the trial of a matrimonial action from acting on such evidence.

To establish collusion in a matrimonial action, it must be shown that some concerted action was taken by the parties to the suit for the purpose of carrying on or connecting that suit. It is not necessary that the act done in concert should be an act done with the intention of deceiving the Court, or of putting the true facts and circumstances in a false light by withholding facts or by falsely representing facts. It is sufficient if the parties are acting together, and assisting each other to work up and present a true case for the Court.

FRENCH v. FRENCH AND KELLEHER, 20th and 21st October, 1909, FULL Court (REAL, CHUBB, POWER, SHAND JJ.). Counsel: Henchman; O'Rourke. Solicitors: Thynne & Macartney; O'Shea & O'Shea.

AUGUST 5, 1910.

THE QUEENSLAND LAW REPORTER

30. Probate-Practice-Limited grant-Appointment of one person as executor of will and of another person as executrix of codicil -Grant of probate limited to the purposes of the different dispositions.

EDWARD HORTON died on 17th November, 1909, having made a will, dated 7th July, 1903, by which he appointed A. executor thereof, and a codicil executed on 13th November, 1909, whereby he declared "this to be taken in conjunction with a codicil to my former will." By the codicil he appointed B. as executrix thereof.

Rees R. Jones (Solicitor), moved for a grant of probate of the will and codicil to A., limited to carrying into effect the dispositions of the will and referred to Tristram & Coote on Probate Practice, 12th Ed., p. 15; In the will and codicil of Graham ([1910] V.L.R. 16).

POWER J. ordered probate of the will and codicil to issue to A., limited to carrying into effect the dispositions of the the will, and reserved leave to B. to apply for a like grant limited to carrying into effect the dispositions of the said codicil. In re HORTON, 13th April, 1910, IN THE CENTRAL COURT (POWER J.). Solicitors: Messrs. Rees R. & Sydney Jones.

31. Criminal law-Illegally branding horse-Bona fide claim of right-The Criminal Cede, s. 447-Powers of Court of Appeal on appeal from Justices.

The Court has power to review the decision of Justices with reference to the facts on which the limits of their jurisdiction depend, and is not bound to uphold their decision because there is evidence upon which they could not unreasonably decide as they did. But the power is not exercised in practice where the decision is supported by evidence on which reasonable men might so decide.

Held, that the finding of a Magistrate that a claim of right raised by the defendant as a defence to a charge of illegally branding was not made bona fide, was a reasonable finding on the evidence, and that the conviction of the defendant should be affirmed.

DOYLE v. ANYON, Ex parte ANYON, 27th September and 1st October, 1909, IN THE NORTHERN COURT (SHAND J.). Counsel: Jameson; Douglas. Solicitors: Roberts, Leu & Barnett, for R. J. Barnett, Cairns; H. E. Harrington, for The Crown Solicitor.

32. Liquor-Application for second bar on licensed premisesDiscretion of licensing authority to grant or refuse-Objection to application need not be taken-Licensing authority need not state reasons for refusal—The Licensing Act of 1885 (49 Vic., No. 18), 88. 30, 48.

ORDER NISI FOR QUASHING ORDER.

The licensee of the Club House, Cairns, duly filed an application for a renewal of her license, and on the same day also made a separate application for a renewal of the license and the grant of a second bar. During the continuance of the expiring license there had been one bar only, which faced Abbot street, on the premises, except during the time when the hotel was being re-built, when a temporary bar, facing Lake street, was used. The applications came on for hearing on the same day. The licensing inspector objected to the grant of permission to keep open a second bar, on the ground stated in The Licensing Act of 1885, 8. 41 (5), and another person, Percy Pease, who was qualified to object under s. 40, objected on the ground, inter alia, that the conditions prescribed by the Act had not been complied with by the applicant, s. 41 (7).

The Licensing Authority granted the application for a renewal, and adjourned the other application to a later hour in the day, when they called on the solicitor for the applicant to call evidence in support of that application. The solicitor refused to do so, contending that the onus of proof lay upon the objectors. The Licensing Authority thereupon refused the application, but did not state any grounds for their refusal.

THE QUEENSLAND LAW REPORTER.

AUGUST 5, 1910.

An order nisi was granted on the application of the licensee calling on the Licensing Authority, the licensing inspector, and the objector, Percy Pease, to show cause why the Licensing Authority should not be ordered to hear and determine the application for permission to keep open a second bar.

Macnaughton moved the order absolute. The grounds of refusal must be stated. The Licensing Act of 1885, s. 48, Schedule II., r. 8; Re Range (1904, St. R. Qd 86), R. v. Sykes (11 Q.B.D. 52). The application for a second bar was part of the whole application, it was for the objectors to support their objections by evidence. and as no evidence was given the grant of a second bar should have been made with the grant of renewal. The Licensing Authority can act only on the evidence. Atkinson v. Pinnock (2 Q.L.J. 138), R. v. King, Ex parte King (9 Q.L.J. 99), Sharpe v. Wakefield ([1891] A.C. 173), Evans v. Justices of Conway ([1900] 2 K.B. 224. The discretion of the Justices must be exercised judicially, and on the evidence before them. He also referred to The Licensing Act of 1885, 8. 49. Raven v. Justices of Southampton ([1904] 1 Q.B. 430), R. v. Tilston (8 Q.L.J. 6), Civil Service Co-operative Society v. General Steam Navigation Co. ([1903], 2 K.B. 756).

Jameson: The applicant, on the question of the second bar, was in the position of a plaintiff who calls no evidence, and the only course for the justices was to dismiss the application. On the application for a second bar, the applicant, and not the objectors, was bound to commence : this application is distinct from that for a renewal. Oliver v. O'Connell (25 A.L.T. 76).

:

SHAND J. The application for a second bar is neither an application for a license nor for a renewal of a license, and the granting or refusal of such a license is by s. 30 of The Licensing Act of 1885 placed entirely in the discretion of the Licensing justices. In my opinion s. 48 of The Licensing Act of 1885, and the notes of procedure stated in the Second Schedule to that Act, do not apply to such an application. If an application for permission to keep open a second bar, whether contained in an application for a grant or renewal of a license could only be granted or refused on evidence given by some witness, it seems to me that the applicant for the license would be in the position of a plaintiff upon whom the onus of calling evidence rested, and in that case, as no evidence was called in support of the application, the justices were justified in refusing it on that ground. I do not think it was necessary that any objection should be taken or that the justices should have given any reason for their refusal. I think they had an absolute discretion to refuse the license whether evidence was or was not given, so long as they were honestly opposed to granting it, and that it was only necessary for them to say that they did refuse it.

R. v. THE LICENSING AUTHORITY OF CAIRNS, Ex parte DUNWOODIE, 17th May, 1909, IN THE NORTHERN COURT (SHAND J.). Counsel: Macnaughton; Jameson. Solicitors: MacDonnell, Henchman & Hannam; Hobbs, Wilson & Co., for A. R. Hartley, Cairns.

33. Voluntary settlement-Agreement to give land contained in a letter written by illiterate person-Specific performance-Meaning of agreement doubtful.

The plaintiff was the owner of a farm in Bundaberg, on which a cottage was erected. On visiting his step-daughter and her husband, the defendants, in Sydney, he found them in poor circumstances, and on his return to Bundaberg wrote to his step-daughter, saying that she would do better if she came to Bundaberg, and that he would give her the farm of 10 acres, which would be a nice home for her; that he would give it to her free of cost, and no rent. Acting on this promise, the defendants broke up their home in Sydney, removed to Bundaberg, and took up their residence on the farm.

Held (per Cooper C.J. and Shand J.), that this was only a promise to confer upon the defendants, or either of them, a tenancy of the farm at the will of the plaintiff.

Held (per Real J.), that the promise ought to receive as wide a construction as possible, and that it conferred an estate on the step-daughter for her life, if she so long continued to reside on the premises.

SCHLIEMANN v. THOMSEN AND THOMSEN, 9th and 20th December, 1909, FULL COURT (COOPER C.J., REAL AND CHUBB JJ.). Counsel: Lilley; Hart. Solicitors: Nicol Robinson, Fox & Edwards, for H. N. Thorburn, Bundaberg; Morris & Fletcher, for Hamilton & Nielson, Bundaberg.

SEPTEMBER 2, 1910.

THE QUEENSLAND LAW REPORTER

34. Income Tax-Foreign company-Money invested on security of pastoral property in Queensland-Mortgages under the Real Property Acts-Interest on mortgages-Paid to the company in Melbourne-Liability to pay income tax-Deduction of interest paid to shareholders on calls paid in advance to the company-The Income Tax Acts of 1902 (2 Edw. VII., No. 10), s. 13, subsec. 3.

A limited English company had power to make advances on real estate in Australia, and on the security of station runs, wool, cattle, sheep, by taking a preferable lien thereon. They conducted their business in Australia in Melbourne, and although they were registered in Queensland, had no representative here. The securities for all advances were prepared and kept in Melbourne, and those relating to property in Queensland were sent to that State only for the purpose of being registered. All advances were made in Melbourne, and interest was paid there, and the company did not care from what source the principal or interest was derived. The company made advances on station runs, stock, and wool in Queensland, and the securities for these advances were registered in Queensland.

Held, the company was liable to pay income tax on the amount of interest they received on these securities.

Certain shareholders in the company paid up capital subscribed by them beyond the amount actually called up on their shares. Under the articles of association, the company paid interest to them on the prepayments.

Held, that these payments to shareholders were payments of interest on borrowed money within s. 13 (iii.) of the Income Tax Acts, and the company was therefore entitled to deduct them from its otherwise taxable income.

In re THE INCOME TAX ACTS AND THE TRUST AND AGENCY COY. OF AUSTRALSIA, LTD., 8th and 9th December, 1909, and 25th February, 1910, FULL COURT (COOPER C.J., REAL AND CHUBB JJ.). Counsel: O'Sullivan, A.G. and Stumm; Feez, K.C. and Woolcock. Solicitors; The Crown Solicitor; Flower & Hart.

35. Justices-Vagrants-Using threatening language with intent to provoke a breach of the peace-Vagrant Act of 1851 (15 Vic., No. 6), 8. 4.

ORDER NISI TO QUASH A CONVICTION.

66

The Court of Petty Sessions convicted the defendant of using threatening language with intent to provoke a breach of the peace, and from this conviction the defendant appealed under s. 209 of the The Justices Act of 1886, on the grounds that the conviction was contrary to the evidence, that on the evidence the complaint should have been dismissed, and that there was no evidence of any intention to provoke a breach of the peace. The complainant gave evidence that he met the defendant on a public road. Just before this meeting the complainant's son had driven some cattle belonging to the defendant, which were on the road, away from the vicinity of the complainant's cultivation paddock. After a few casual remarks were passed, the defendant said, "What are you dogging my cattle for, you b— to which the complainant replied, Don't extend any of your cursing to me.' The defendant said, "I'll fight you, you b--," and it's nothing but your b―― spite, you b--." The complainant answered, “I want to live in peace and quietness; I do not want any of your rows, neither fighting; keep your place as you ought, and try to keep your cattle out of my cultivation and things will be alright.” The defendant then assumed a pugilistic attitude, and jumped in front of the complainant at a distance of about two yards. The complainant said, Keep your place, I told you before that I want none of your rows, neither fighting. If you do not stop I will see you somewhere else." The defendant, still retaining his aggressive attitude, said, Call yourself a b― man, I am not afraid of you, you b——, and here's into you." Shortly afterwards these two persons separated, bidding each other "good night.' Other witnesses gave evidence in support of the complain.

66

THE QUEENSLAND LAW REPORTER. SEPTEMBER 2, 1916.

ant which did not exactly coincide with the above account, and the defendant denied most of the complainant's story.

Stumm moved the order absolute. The defendant was not the aggressor; the altercation which took place arose from the fact that the complainant's dog was chasing cattle belonging to defendant's father; the Act does not apply. The defendant was not near enough to strike the complainant; there was no intent to provoke a breach of the peace on one side, and no comprehension of an intent on the other; nothing was done to induce fear of assault or even to show an intention of carrying out the threat. He cited Clarris v. Lamb, Ex parte Lamb (1910 Q.W.N. 28), Bundy v. Clegg (1910 Q.W.N. 2), R. v. Justices of Clifton, Ex parte McGovern (1903, St. R. Qd. 177).

Walsh, who appeared to show cause, was not called on.

COOPER C.J.: In this case I am of opinion that there was evidence, which if believed by the Police Magistrate and acted upon, was sufficient to justify the conclusion at which he arrived. I think it is not possible for this Court to hold that he was unreasonable in coming to that conclusion. The evidence clearly establishes that the defendant used the most offensive language, offered to fight the complainant, and remained in front of him for some time in an aggressive attitude. The defendant could plainly have fought the complainant, and the complainant could have committed a breach of the peace. On the facts I am of opinion that we cannot interfere with the decision of the Police Magistrate. REAL J.: I am of the same opinion. I do not say that any one circumstance taken by itself is sufficient to support the Magistrate's finding, but I think, on the whole of the circumstances, this Court would not be justified in coming to the conclusion that the finding of the Magistrate was unreasonable. If he had found otherwise we could not have interfered with the decision.

POWER J. I agree.

:

Order nisi discharged with costs.

BEUTAL v. TURNER, Ex parte TURNER, 16th May, 1910. IN THE FULL Court (COOPER C.J., REAL AND POWER JJ.). Counsel: Stumm; Walsh. Solicitors : Bouchard & Holland, for W. G. Mayne, Roma: Stephens & Tozer, for R. Mowbray, Chinchilla.

36. Licensing law-Liquor-Licensed victualler's license-Married woman-Objection to grant-Validity of objection-Sufficiency of grounds for decision-The Licensing Act of 1885 (49 Vic., No. 18), ss. 41, 47, 48, 57-Second Schedule.

A married woman applied for the transfer of a licensed victualler's license from her husband to herself. The Licensing Inspector objected, on the ground that it was undesirable that such transfer be granted as long as the husband lived at the same place as the applicant. At the hearing of the application, the Inspector stated that he had no objection to the applicant, morally or otherwise No evidence was given, but a deed of separation, which was to operate when the license was transferred, was tendered, and counsel for the applicant admitted that the licensee was a drunkard, and would leave the premises if the license was transferred to his wife. The Licensing Authority refused the application, and on the record entered as the ground of refusal, that the applicant is otherwise unfit to hold a license." By affidavit of the Chairman of the Licensing Authority, it was stated that the license was, in fact, refused because the applicant was a married woman living with her husband.

Held, per Curiam, that a married woman is competent to hold a licensed victualler's license under The Licensing Act of 1885.

Held, per Real and Chubb JJ., that the Licensing Authority had not taken all the evidence into consideration, and that the case should be remitted to them to be further heard and determined.

Held, per Cooper C.J., that the decision of the Licensing Authority was reasonable under all the circumstances, and ought not to be disturbed.

R. v. LICENSING AUTHORITY AT IPSWICH, Ex parte CONWAY, 25th February and 18th March, 1910, FULL COURT (COOPER C.J., REAL AND CHUBB JJ.). Counsel: Real; O'Sullivan, A.G. and Walsh. Solicitors: J. Ambrose Born; The Crown Solicitor.