PURCELL AND OTHERS V. THE Lukin J. appointment or taking possession that is to say, not all the PUBLIC CURATOR Consequences that follow on the winding up of the company OF QUEENSLAND. under the Companies Act, inter alia, that the same rules shall prevail, and be observed for determining the respective priorities of creditors, and for determining where creditors are entitled to take or retain the property of the company as security, and for determining the validity of any security, as are in force for the time being under the law of insolvency (see supra), but only those relating to the payment of certain debts--that is to say, the debts which in every winding up are preferential debts payable in priority to all other debts out of the assets coming to the receiver. It so happens that by the joint effect of the other sections quoted above, the landlord would receive the amount of three months' rent independent of and apart from any distress, as a preferential payment. It does not, however, seem to me that the joint effect of such sections, either by plain implication or necessary intendment, affects prejudicially the landlord in any of his rights independently of such provision, because the necessary connecting language to bring about such a result is absent. Section 18 being the connecting link that, it is contended, brings into operation the other sections referred to, and failing, in my opinion, in that respect, the very basis of the arguments for the plaintiffs fails, and with it, the whole of the plaintiffs' case. The questions, then, in my opinion, should be answered (1) (a) No; (b) No. (2) Yes. (3) Judgment for the defendant, with costs. (4) By the plaintiffs. If any difficulty arises as to an order for the payment of damages pursuant to the undertaking, the matter may be brought on by motion under O. LVIII., r. 12, as to which I reserve liberty to apply. Questions answered accordingly; further consideration of action reserved. Solicitors for the plaintiffs: Boyce & Hunter, for Carey & Quigley, Rockhampton. Solicitor for the defendant: R. J. Barnett, Official Solicitor to the Public Curator. Illegitimate [IN THE FULL COURT.] child-Unborn WALDUCK v. MESSENGER, Ex parte MESSENGER. child-Maintenance-Confinement expenses-Paternity of child-Corroboration of evidence of the mother-The Deserted Wives and Children Act of 1840 as amended by the Act of 1858-Infant Life Protection Act of 1905 (5 Edw. VII., No. 19), s. 16. Held, on the facts, that there was corroborative evidence of the oath of the mother of an illegitimate child that the defendant was the child's father and that an order made by a Court of Petty Sessions that he pay confinement expenses and maintenance was justified. ORDER NISI FOR QUASHING Order On the complaint of the respondent, made in a Court of Petty Sessions, alleging that she was quick with an illegitimate child, and that the appellant was the father thereof, and praying that an order be made by the Court directing the appellant to pay confinement expenses, etc., and maintenance for the child, evidence was given by a medical practitioner that the respondent was pregnant, and that the pregnancy was of about six months. The respondent gave evidence that she was quick with child, and that the appellant was the father. The respondent was working at an hotel in Cloncurry during January and February, 1921, and in March was staying in that town with her married sister. She said that sexual connection had taken place between her and appellant on 24th March, 1921, at the house of her brother-in-law, while her sister was away from home, and on 16th August, 1921, along the Hospital Road. The evidence tendered to corroborate the respondent's statement was (1) Evidence of a housemaid who was working at the hotel while the respondent was there, who said: "Whilst I was working at the hotel I saw Messenger there. He asked me a couple of times for Martha. As far as I know, he was on friendly terms with Martha Walduck. He used to come every night for 1921. December 1, 13. Real J. Lukin J. F.C. WALDUCK . MESSENGER, Ex parte MESSENGER. her when he wasn't away. I saw them leave the hotel together. That was every night when he wasn't away." (2) The evidence of respondent's brother-in-law, who said, inter alia: "I am a carter residing in Cloncurry. I know Viv. Messenger and Martha Walduck, my sister-in-law. I remember months of January, February, and March this year. During that time complainant was working at Douglas' Hotel. She left the hotel in the latter end of March, and came up to my place. My wife and three children were there when she came. My wife went to Kuridala a few days after Martha Walduck came up. She took the children. She stayed up there a few days, inside a week. The complainant stopped at my place. She did all the cooking and everything that had to be done. Before she came to my place I had seen her out with Messenger several times near Douglas' Hotel and up along the Hospital Road. Complainant stayed at my place all the time my wife was away. My house is in Seymour Street. I always sleep on the front verandah While my wife was away I remember returning home fairly late. I met Messenger. I said, "Good-night" to him. He said "Good-night" to me. I saw him come off my front steps. It was about 37 yards from my front steps where he spoke to me and I to him. That is the first time I ever saw him come away from my place. After I spoke to him, I went into the house. Martha Walduck was home. She had just lit up as I was coming along, and had gone into her room. There was no light there when I saw him coming off the steps. At this time my wife was not home. Since my sister-in-law came home I got a telephone call about the 16th August. I was lying on the bed about half-past six in the evening, and went and answered it. I recognized Messenger's voice. He asked me was Martha there. I went to her on the verandah and told her she was wanted on the 'phone. That night Martha Walduck went out. I saw her go out after the telephone conversation. I went out shortly after. She met Messenger just on the other side of the main crossing of the railway line. The defendant gave evidence (inter alia) he started keeping company with respondent about the beginning of March to the end of March; that he took her to the pictures several times and back home to the gate of the hotel; he never went inside the gates of her house, and never took her for a walk other than straight home to the hotel; he intended to marry the girl, he liked her; that he met her shortly after the 21st March (it might have been the 24th) at the railway crossing about half-past seven and eight, and had a quarrel with her about another man, and then walked up to the gate of her brother-in-law's house, left her, and went home. He said his friendship with her ceased on that night. He denied that he ever was on the verandah or had sexual connection or indecent intimacy with her at all. He said that on 16th August, 1921, he received a note from the respondent, and then rang her up, and made an appointment to see her at the crossing that night; that he met her at the crossing, went to the Post Office with her first, but did not go along the Hospital Road further than Seymour Street; that she asked him what he was going to do about her trouble, and he said, "I don't know anything about your trouble," and she said, "You'll know on Thursday." In cross-examination he admitted that he received a letter from the respondent dated 23rd August 1921, which, inter alia, contained the following:-"I want you to give me a decided answer of what you intend doing about my trouble, Viv. You know you have got me into this fix, and you will see me out of it. When I brought up the subject on Tuesday night you were very anxious to go home and you said you would see me Thursday night, as you couldn't see me Wednesday night as you had to go out on a train to Selwyn and you wouldn't get back until Thursday evening, and when you said you was going I said all right you will hear all Thursday night concerning the matter and you said all right. And you dident turn up. I waited at the railway crossing untill I give up hopes I went up to the train on Friday to see you and you wasent man enough to show out your face You know what happened on our verandah the last night you were there before I went to Mackinlay. The appellant did not answer this letter. However, after he received a letter from respondent's solicitor, dated 29th August, claiming confinement expenses and maintenance for the child, his solicitor wrote on 6th September denying any liability, and stating that his clent was astonished at receiving the letter. In rebuttal, a witness gave evidence that he saw the appellant and respondent one night on the Hospital Road at a place about 250 yards beyond Seymour Street. The appellant was ordered to pay confinement expenses, etc., and a maintenance order was made for the benefit of the child F.C. WALDUCK V. MESSENGER, Ex parte MESSENGER. F.C. WALDUCK V. MESSENGER, Ex parte MESSENGER. in the event of its birth on or before 3rd January, 1922. The appellant then applied for an order nisi for a quashing order, which was granted on the ground-That there was no corroboration of the testimony of the respondent concerning the paternity of her child. R. J. Douglas moved the order absolute. There is no corroboration of the evidence of the respondent that the appellant was the father of her child. Deserted Waves and Children's Act of 1840, s. 8. He dealt exhaustively with the evidence, and cited Dawson v. McKenzie (1), Matthews v. Colless (2). Real, for the respondent, was not called upon by the Court. PER CURIAM: There was sufficient evidence to corroborate the oath of the mother that the appellant was the father of her illegitimate child. The appeal is dismissed, with costs. Order nisi discharged, with costs Solicitors for appellant: Morris & Fletcher, for S. Newman Johnson, Cloncurry Solicitor for respondent: Bouchard & Holland, for H. C. R. Faithfull, Cloncurry. (1) 1908, S.C. 648 (Ct. of Sess.) (2) 1915, St. R. Qd. 159. |