F.C. LAVERS V. After that time the eldest child and the son remained with the father, and the second girl was in the custody of the mother. The defendant alleged, and the applicant denied, a failure to properly manage and keep the home and care for and tend the children on the wife's part, and read an affidavit of a medical practitioner who stated that during the time the boy was under the father's care he greatly improved in health. Lukin J. interviewed the applicant and the defendant separately and together. On the hearing of the summons, counsel for the applicant cross-examined the defendant, and from that cross-examination it appeared that the defendant was very intimate with M., a young girl of his congregation, and had written in indiscreet terms of his affection for her, which he explained as platonic and spiritual, and arising from their relationship in his congregation, and her assistance in his work in matters spiritual. There was no proof of impropriety of conduct, but the letters, although containing many pious expressions and references to his religious works and endeavours, did also contain expressions of which the following are instances :-"I was very indignant yesterday, as you know, for the words you told me your mother used regarding you." "True love is willing to make a sacrifice." Although it is dreadfully hard, I am willing to act differently." "My love to you is too great to continue in anything that is going to cause you to be spoken about or to be looked upon in a false light. I intend to draw the line outwardly, of course inwardly the feelings are there." "With fondest love, your true "I want you "Dear Mrs. and loving friend, till death do us part." me up." there was even a word between us." "Dear M., it is with a very heavy heart I am writing this letter to you, with my eyes brim-ful." upplement & The Queensland Law Reporter, October 6, 1922. my brain is almost in a whirl. M. is a dear, good girl, and I cannot praise her too highly-she deserves it. I was studying her kind, thoughtful face to-night, both at church and home. She is truly a gem, and I admire her." The cross-examination also disclosed that the defendant commenced proceedings for defamation against the mother of M., and that the defendant persuaded his wife to threaten proceedings for divorce on account of his relations with M., with the object of forcing M.'s mother to discontinue the utterances of disparaging statements concerning him. At the conclusion of the cross-examination the defendant tendered a statement by M. denying any impropriety between M. and the defendant. On appeal to the Full Court: Macrossan for the appellant: No reasons are given by the learned Judge; he merely says he has exercised his discretion; the Court will re-hear the whole matter, for the learned Judge has no unfettered discretion, and he must be guided by the settled principles of law; the right of the father to the custody of his children is superior, and unless sufficient reason is shown that it is for the welfare of the child, which is the ultimate guide of the Court, the Court cannot deprive him of his right of custody and control. Teppa v. Teppa (1), In re McGrath (infants), (2), Moule v. Moule (3), In re Watson (4), Morton v. Morton (5), In re W., W. v. M. (6), In re A. and B. (infants) (7), In re Flynn (8), In re Taylor, an infant (9), Goldsmith v. Sands (10), In re Newton (infant) (11), The Queen v. Gyngall (12), In re Goldsworthy (13). The Guardianship and Custody of Infants Act of 1891 does not interfere with the common law rights and the natural right of a father nor grant an unfettered discretion to a Judge to select one or other parent as the guardian, and the father cannot be deprived of the custody of an infant child-a boy of three years,which he has continuously enjoyed, in the absence of evidence of misconduct on his part showing that a continuance of his custody would be prejudicial to the interest of the child, or in the absence of evidence that the child's welfare would be promoted by giving the custody to the mother. The incident with a girl (1) 1898, 8 Q.L.J. N.C. 109. (2) [1893] 1 Ch. 143, at p. 148. (3) 1911, 13 C.L.R. 267. (4) 1907, 9 W.A.L.R. 62. (5) 1911, 31 N.Z.L.R. 77. (6) [1907] 2 Ch. 557. (7) [1897] 1 Ch. 786. (8) 1848, 2 De.G.&S. at p. 457. (9) 1876, 4 Ch. D. 157. (10) 1907, 4 C.L.R. 1648. (11) [1896] 1 Ch. 740. (12) [1893] 2 Q.B. 232. F.C. LAVERS " LAVERS. F.C. LAVERS v. LAVERS. McCawley C J. of his congregation is a mere indiscretion and immaterial to the physical or other welfare of the children. McGill for the respondent was not called on. The judgment of the Court was delivered by MCCAWLEY, C.J. In this case an order was made by Lukin J., giving the custody of the infants to the mother. Against this order the father appeals. The order was made in pursuance of Section 6 of The Guardianship and Custody of Infants Act of 1891. The discretion conferred by this section must be exercised judicially, but we are all of opinion that there are no grounds for interfering with the order made by the learned Judge in the exercise of that discretion. The appeal is dismissed with costs. Appeal dismissed with costs. Solicitors for appellant: Nicol Robinson, Fox & Edwards. Solicitors for respondent: Crouch & Eden. [IN THE FULL COURT.] KENNEDY v. KUNDE. Practice Appeal from Magistrates Court-Re-hearing-The Magistrates Courts Acts of 1921 (12 Geo. V., No. 22), s. 11 (5)— An appeal from a Magistrates Court to the Supreme Court is not by way of rehearing, and the principles of law formerly applicable on an appeal to the Supreme Court from a decision of a District Court Judge, under The District Courts Act of 1891, are now applicable to an appeal from a Magistrates Court under The Magistrates Courts Acts of 1921. APPEAL. This was an appeal from a decision of a Magistrates Court, whereby the plaintiff was awarded damages for the negligence of the defendant in driving a motor car which caused injury to the plaintiff and to his horse. Of the facts it is sufficient to say that there was ample evidence to support the findings of the Magistrate. The notice of appeal gave the grounds of appeal as : 1. The findings of the Magistrate were contrary to the evidence and the weight of evidence. 2. On the evidence adduced-(a) the defendant was not guilty of negligence; (b) the alleged injury or damage (if any) was caused by the negligence and improper conduct of the plaintiff; and (c) in any event the damages awarded were excessive. 3. The judgment was contrary to law. Grove for the appellant: This is the first appeal from the Magistrates Court created under The Magistrates Courts Act of 1921. This Court should re-hear the case and consider the evidence and give the judgment which should have been given; the Court is in the same position as if the appeal had been brought from a decision of a Judge of the Supreme Court sitting without a jury. The Magistrates Courts Act of 1921, s. (5) (a) is extended in its application by rule 183 of The Magistrates Courts Rules, 1922. The joint effect of that section and rule is practically the 1922. July 18. McCauley C.J. Supplement to The Queensland Law Reporter, October 6, 1922. F.C. KENNEDY V. McCawley C.J. same as that of s. 156 of The District Courts Act, 1891 (now repealed). O'Neil v. Bishop (1). [LUKIN J. referred to Pilmer v. No. 1 South Oriental and Glanmire Gold Mining Co. Ltd.(2)]. On the facts, he contended that no reasonable person could find the defendant was guilty of negligence, and cited Cobton v. Wood (3), Galloway v. Anderson (4), Neenan v. Hosford (5), British Columbia Electric Railway Co. Ltd. v Loach (6). McGill for the respondent was not called on. MCCAWLEY C.J.: This is an appeal by the defendant Kennedy from a judgment given against him in May in the Magistrates Court at Kilcoy. The plaintiff in the action, Kunde, who is the respondent here, brought an action against Kennedy for negligence. The negligence alleged was that the defendant so negligently and unskilfully drove and managed a motor car in a public highway, to wit the main street of Kilcoy, on the first day of April, 1922, that the same was driven against the horse of the plaintiff (that the plaintiff was riding), whereby the said horse of the plaintiff was thrown down and injured, and the plaintiff was deprived of the use of the said horse and the plaintiff was also injured. Damages were fixed by the Magistrate at £30. The appeal is the first of its kind brought under The Magistrates Courts Act of 1921. The first point which has to be determined is the attitude which is to be adopted by this Court on the hearing of these appeals. Section 11 (5) of The Magistrates Courts Act of 1921 is practically identical with section 147 of the repealed District Courts Act of 1891. I am of opinion that the appeal is not by way of re-hearing, and that the principles which have hitherto been applied in an appeal from a decision of a District Court Judge apply to these appeals from Magistrates. In this connection I would refer to the remarks of Sir Samuel Griffith in the case of Pilmer v. No. 1 South Oriental and Glanmire Gold Mining Company Limited (7). "It makes no difference, so far as regards the functions of this Court on the hearing of appeals from District Courts whether the case was (1) 1907, St. R. Qd. 204. (2) 1900, 10 Q. L.J. 87. (3) 1860, 8 C.B.N.S. 568. (5) [1920] 2 Ir. R. 258. (6) [1916] 1 A.C. 719.. |