in the determination of the Special Board. It was WILLIAMS, J. I agree with the judgment delivered by the Chief Justice, but I desire to add some observations, seeing the importance of the case. It was first of all argued that these three young men were not "improvers." I think that the definition clause, sec. 4, settles that point. These young men were under 21, they were not apprentices, and did not receive the piece-work price or rate or a wages price or rate fixed by the Special Board, and therefore I think, on those facts, that they were "improvers " under sec. 4. The next point is one of great importance-namely, that the appointment of the Special Board was bad. That point Mr. Cussen raised under the provisions of sec. 15, sub sec. (1), and he contended that there must be a separate Special Board appointed to determine the rate of wages for the trade or business of a butcher and another Special Board to determine the rate of wages for the trade or business of a seller of meat, and so on. Now, as the Chief Justice has said, it is not really necessary to decide this point, and anything I may say is to be taken as an obiter dictum, but I am inclined to think that the clause referred to in sec. 15 applies to the class of persons who are employed in that trade or that business, and that a Special Board may be appointed to fix the rate of wages for the class of persons who are employed in the trade or business, of a butcher, or in the trade or business of a seller of meat, and so on-that is, one Board may deal with the class of persons in all branches. I agree with the Chief Justice that we should require time for further consideration before definitely deciding this point. Then Mr. Cussen relied upon sec. 17 in aid of his construction of sub sec. (1) of section 15. I think that the object of sec. 17 is plain. Its object is to give power to appoint special Boards to deal with a class of persons engaged in making particular articles and not with the whole trade-e.g., makers of wardrobes in the furniture trade, and other particular branches of the furniture trade. That is the effect of sec. 17, and I do not think it helps us in the construction of sec. 15. Sub-sec. (2) of sec. 17 stands in the same position as sub-sec. (1)—that is, you may have a Special Board appointed, not to deal with all the hands employed in bread-making and pastry cooking, but with persons employed in one particular branch of such trades, and therefore I do not think, if that be the correct interpretation of these two sub-sections, that they help us in the construction of section 15. The third point was that no rate or price had been fixed for the work upon which the two sons were engaged, and an argument was founded upon sub-secs. (10) and (11) of sec. 15. Mr. Cussen contended that the fixing of these rates was a condition precedent, and no such rate having been fixed no such offence as that now charged could take place. My opinion as to those two subsections is that it is a question of jurisdiction. The Special Board can only fix the proportionate number of improvers at the time when they are engaged in determining the prices or rates of payment, and when engaged in that work the Act enjoins upon them and commands them, so to speak, to fix the number of apprentices and improvers. [His Honor read sub-sections (10) and (11).] Thus anyone who employs a larger number of improvers than the number allowed by the determination of the Board is guilty of an offence. There is no doubt as to this, and I agree with the argument to this extent, that the jurisdiction of the Special Board to fix the number of improvers is limited to the time when they are determining the prices or rates of payment pursuant to the section, and if they had not determined any price or rate of payment under the section, and had quite irrespectively of that fixed the number of improvers, the prosecution could not be maintained. However, the Special Board have fixed the price to be paid, and when doing that they determined upon the proportionate number of improvers. Then the charge is that the defendant broke through the determination as to the number of improvers so fixed, and I think, for the reasons stated by the Chief Justice, that the charge ought to have been sustained by the justices instead of being dismissed. A'BECKETT, J., concurred. Order absolute, without costs. Aug. 1901. It Then, counsel, and that the costs of doing so be costs in the appeal. I do not think it necessary to set out the whole of the originating summons; it would be sufficient to say that the following questions arose in the will of Thomas O'Connor, and then set them out. would be unnecessary to include the probate. again, as to the affidavit of Sullivan, the only matters material to the appeal would be the dates of deaths of certain persons, and perhaps one or two other matters, but I do not think it necessary to set the whole of it out. I think it would be sufficient to say that the testator devised his interest to certain persons. Of course, the notice of appeal would be necessary. In this case the documents are not particularly long, and perhaps much might not be saved by not setting the whole of them out. I speak, however, of what was contemplated, viz., that only so much as is material should be printed. In this matter the difference in cost would be slight, but I have expressed my views for the benefit of the profession. Counsel will settle the appeal book, and send it back to me. The originating summons and the affidavit wil! be in Court, and available if it be found necessary to refer to them. I do not think any particular form of making the application Solicitors For informant, Guinness, Crown Solic- was intended, and I think the statement sent to me itor; for defendant, Forlonge. IN CHAMBERS. Before A'Beckett, J. IN THE WILL of O'Connor; SULLIVAN V. SULLIVAN. July 25. Rules of Supreme Court 1900, Order LVIII., r. 7— Appeal-Submitting Note to Judge-Practice. Rule 7 of Order LVIII., was intended to prevent a wasteful setting out of documents in the appeal book, and only such materials as appear to be essential to the appeal should be directed to be inserted. HIS HONOR Said.—An application has been made to me with reference to an appeal in this matter. Order LVIII., r. 7, of the new Rules provides that:-"Every appellant from any judgment shall submit a note of what he proposes to insert in the appeal book to the judge from whose decision the appeal is made within fourteen days after the pronouncing of such decision, and the judge may alter, add to, or vary the same in such way as he may think fit, and may make such order as to the costs of such note, and the settling thereof as may be just." The intention of that rule is that only that which appears to be essential to the appeal should be directed to be inserted in the appeal book, and the judge who heard the case should be in the position to know what is necessary. Previously the practice was to put in almost every document. I do not say this was done improperly, for the parties were under an obligation to do it. This rule was intended to prevent a wasteful setting out of documents. This originating summons and the documents in the appeal book illustrate the course which was intended to be taken, and the advantage of shortening the matter. I direct that the appeal book be settled by was a very clear one of what was proposed to be put in the appeal book. I think, in the first instance, the appellant should say that he proposes to put so and so in the appeal book, and take the direction of the judge upon it; but I think no special form of application is necessary. When the matter is before the judge he can give his directions on it. Solicitor For appellant, R. W. Shellard. Before 'Beckett, J. PHILLIPS V. JOHNSTONE. July 26, 29. Rules of Supreme Court 1900, Order XVIII., A— Order XXXI.-Discovery of Documents. In actions for trial without pleadings, an application for discovery of documents should be made on summons, the applicant giving notice to the other side that it is unnecessary for him to attend unless he intends to offer an objection to the application. On the return to such summons an order will be made unless there is an objection. Application on behalf of the defendant for an order for discovery of documents. Mr. Hunt in support. HIS HONOR.-Is this made under a summons for directions? Mr. Hunt.-No. The writ is one endorsed for hearing without pleadings, and therefore a summons for directions is not applicable. Under such circumcumstances the old practice prevails, and the application is made ex parte. HIS HONOR said. I shall consider the matter. HIS HONOR, on a subsequent day, said.---I understand the practice, which has been adopted by one of the judges, is to serve a summons, giving notice that it is unnecessary for the other side to attend unless any objection is to be offered to the order sought, and then, on the return of the summons, an order will be made unless there is an objection. The costs will be costs in the cause. Solicitor For applicant, H. W. Hunt. [See Barnes v. James, 22 A.L.T., 138, and 22 A.L.T., 149-ED. A. L.T.] PRACTICE COURT. Before Hood, J. QUINANE V. BROWNE. V. May 31; June 17. Vermin Destruction Act 1890 (No. 1153), ss. 3, 15— Land Act 1890 (No. 1106), s. 123-Land Act 1898 (No. 1602), ss. 116, 117, 118-Holder of Grazing Licence Destruction of Rabbits Owner or Occupier. The holder of a grazing licence is not the " owner or occupier" within the meaning of the Vermin Destruction Act 1890, and, therefore, is not liable for failing to destroy vermin. Order nisi on behalf of the defendant to review the decision of the Court of Petty Sessions at Cobram on the ground that the defendant is not an owner or occupier within the meaning of the Vermin Destruction Act 1890. such holder is not an occupier under the Local Government Act 1890, he is not an occupier under the Vermin Destruction Act 1890. It is to the interest of the licensee that the vermin should be destroyed. He referred to The Shire of Wimmera v. Brimacombe, 19 A.L.T., 12; 23 V.L.R., 217. Mr. Duffy, K.C.-In this case the justices have decided that the defendant was the occupier; but if Your Honor were to hold that there was evidence that he was the owner- HIS HONOR.-The justices fined the defendant because he was the occupier, but their decision can be supported on any ground. Mr. Duffy. The scope of the Vermin Destruction Act 1890 is that the owner or occupier is to be responsible for destroying the rabbits, but, if neither an owner nor an occupier can be found, the Board of Land and Works is to be considered to be the owner and occupier. He referred to sections 15, 43 and 44 of the Vermin Destruction Act 1890. The Crown may get back any money it for a licensee, who may have his licence put an end but there is no provision pays, to, doing so. A licensee might spend money and the rabbits were destroyed, and the licensee would not be then a person might come and select the land after recouped. Section 118 of the Land Act 1898 provides that the holder of a grazing licence shall be liable to be rated under the Local Government Acts, and that shows that such a person would not have been rateable The defendant was informed against by an inspector as an occupier if it were not for that section. Section under the Vermin Destruction Act 1890 for having 123 of the Land Act 1890 does not give any rights failed, as the owner or occupier of certain land, to whatever. Vaughan v. Shire of Benalla, 12 A.L.T., take all necessary means to destroy all vermin upon 176; 17 V.L.R., 129. A licensee has a mere right to the land so owned or occupied by him, and upon the go in, and the Crown might put other sheep on the half width of all roads bounding or adjoining the same land, without the licensee having any right to turn after having received notice so to do. At the hearing them out; his only remedy would be an action for of the information it was proved that the land in damages. A licensee has merely the right to use the question was infested with rabbits, but it was sub-grass, if he can get it, and is not an occupier within mitted on behalf the defendant that, as he was merely the holder of a grazing licence, he was neither the owner nor occupier of the land. The Court decided that a licensee was an occupier, and made an order fining the defendant £2 with £1 1s. costs. Mr. Duffy, K.C., moved the order absolute. Mr. Cussen to show cause.-The defendant is the holder of a grazing licence under section 123 of the Land Act 1890. Under section 3 of the Vermin Destruction Act 1890 the word owner is defined as including any person holding any land under any lease or licence from the Crown, and the defendant comes under that section, for he is the holder of a licence from the Crown. There is a general intention shown to bring in people to destroy vermin. Taking sections 3, 4 and 5 of the Vermin Destruction Act 1890 together, it is manifest that it was intended that the person who had the benefit of the pasture should be under the liability of destroying the vermin. Section 13 empowers the inspector to enter any land with a dog to search for vermin after giving notice; but if it was the Board of Land and Works who had to destroy the vermin, no notice would be necessary. It does not follow that, because it has been decided that the meaning of the Act. He cited Mayor of Port Melbourne v. Loach, 21 A. L.T., 243; 25 V.L.R., 619. HIS HONOR Said.--I shall consider the matter. HIS HONOR, on a subsequent day, read the following the Vermin Destruction Act 1890, the magistrates judgment. The defendant in this case was fined under holding that he was an occupier of land within that Act. In the face of the authorities that have been cited, this view is erroneous. By section 118 of the Land Act of 1898 (No. 1602) licensees of Crown land, such as the defendant, are declared to be occupiers of that land for the purpose only of the Local Government Acts, so as to make them rateable. But the decisions show that a person having merely the right to depasture sheep and cattle on land, under licence from the Crown, is not the occupier of such land in the ordinary sense, and there is nothing in the Vermin Destruction Act 1890 to extend that ordinary meaning. It was, however, urged that the magistrates' decision could be upheld owing to the definition clause of the Act, whereby "owner" is made to include "any person holding any land under any lease or licence from the Crown." The defendant's licence was granted In con If The SITTINGS IN BANCO. Before Madden, C.J., and Holroyd and Hood JJ. 1901, August 1. Crimes Act 1890 (No. 1079), s. 142-EmbezzlementPublic Servant-Money received "by Virtue of his Employment." In order to constitute an offence under section 142 of the Crimes Act 1890, the accused must have been authorised by the Crown to receive the money alleged to have been embezzled by him. Crown case reserved. The following is the case stated :— The second count was in the same form, except that the words "feloniously and fraudulently did apply and dispose of for his own use and benefit" were substituted for the words "feloniously did embezzle.” The evidence was as follows: .under section 123 of the Land Act 1890. sideration of the payment of £29 16s. 3d., it gives him, for one year, licence and liberty to enter with cattle sheep, and other animals upon specified Crown lands, and depasture the same. The licence is not to prevent the land from being alienated in any way without compensation, except under the same section 123. It confers no right to build or cultivate or, without permission of the Minister, to fence. By section 116 of the Land Act 1898 (No. 1602), the Minister has power, at the request of the licensee, to permit -the construction of dams and erection of fences. the land is required for public purposes, there is to be no compensation for any improvements, but the fences may be removed. Upon the expiration of the term, if a new tenant takes the land, he is to pay the value The accused was tried before me on the 24th June, of such improvements. It does not appear whether 1901, on a presentment charging "that at Melbourne, this defendant has made any improvements. In on the 17th day of September, 1900, he being then these circumstances, can the defendant be properly employed in the Public Service of Her Majesty in said to "hold" this land under this licence? Sections Victoria, and entrusted by virtue of such employment 2 and 3 of the Land Act 1890 apparently refer to land with the receipt, custody, management, and control under licence as being "held," and section 117 of Act of money, feloniously did embezzle £134 4s., which No. 1602 speaks of a licensee as an "incoming tenant." had been entrusted to and received and taken into It was also pointed out, that unless the defendant is possession by him by virtue of his employment." an owner or occupier, the inspector might enter the lands and interfere with the defendant's right without giving him any notice. But still I think that full force must be given to the words in the definition. The expression used is "holder of any land." defendant does not hold this land in any proper sense. He is not the occupier, and he has no title to the land. If it had been intended to include such bare licensees as those under section 123 of the Land Act it would have been easy to say, "holder of any licence," or "any licensee." The contention for the informant would make holders of licences to remove dead timber, &c., liable for the destruction of the rabbits on the Crown lands comprised in their licences, and I think that it is probable the language used was adopted expressly to avoid including persons having such a temporary use of the land. And if the defendant were to be taken as being the owner of this land, a strange perversion would follow. Practically, his landlord is the Board of Land and Works. But according to the definition clause, there being no other occupier, the Board of Land and Works is to be deemed the occupier. So that, if complainant's view were correct, we would have the licensee parading as owner of land occupied by his landlord, which would be a curious result. Moreover, the provisions of section 8 of the Vermin Destruction Act 1890 as to burning off, and of sections 53 and 54 as to wire fencing and the cost thereof being a charge upon the land, are inconsistent with the idea of the defendant being either an owner or occupier. In my opinion, therefore, the defendant should not have been convicted, and this order nisi will be made absolute, with costs, the decision below set aside, and the summons dismissed, with £1 1s. costs. Solicitors: For informant, Wettenhall & Parkinson for Tunnock, Numurkah; for defendant, Duffy & King for Hassett, Yarrawonga. Alfred Henry Ryan, miner, of Dargo, said.-Have known accused eight years. Head of Leasing Branch, Mining Department. I owed rent for leases. Went to see him in his office, Mines Department, 17th September. Had a list with me (Exhibit "A"). I said "I have come according to promise to pay rents"; produced list. Asked is this all right? Are you going to pay money in to-night? "Yes. It will keep me till six o'clock if I'm to make out receipts for these amounts." He said there were two leases of Taylor's on which money was due, some £6-was I going to pay that? I said "Yes." He added that amount to the total, making £131 4s. I had before said to him-"Well, if you give me a general receipt for this, it will do. You can send the official receipts to Peacock's office." He said “All right." I paid money over in notes and cash, counted over by prisoner and McDermott; total £131 4s. Before he took the money finally Houston asked me couldn't I come in the morning. I said "No, I had to go to Gippsland." Never received either general or special receipt. I heard no more until November. Sent this telegram (Exhibit "B"). Next day received telegram purporting to be from Houston (Exhibit "C"). I've heard nothing more about it. I Cross-examined.-He was on one side of the counter and I the other. This was the last I saw of him. did not know whether he had or had not authority to receive. I thought up to five was the hour for the public to do business. I was there about five. Percy Whitton, Accountant, Mines and Water Supply.-Accused is 30 years in service. Last year he was employed as head of Leasing Branch in Mining Office. It was my duty to receive rent if tendered in working hours, or clerk in pay office. I never received this sum. Cross-examined. It was no part of Houston's duty to receive money. It was against instructions to receive money given on the request of the Commissioners of Audit-given without any suggestion of previous irregularity. He was a valuable officer, and managed branch well. Whitton, re-called.-The telegram put in (Exhibit "D") is in handwriting of accused. Mr. Gaggin, Acting Accountant, Treasury, proved that he did not receive any of the money, or give any receipt for it. Mr. Kerr, cashier, gave evidence to like effect. A List of rents due. B. Telegram-29th November, 1900—A. H. Ryan to accused "Why your Department inquiring re lease rents Peacock's, when paid? Please explain." C. Telegram-30th November, 1900.-Accused to A. H. Ryan-" Rents paid. Suspension granted. Will see Peacock & Co." D. Telegram-Original of Exhibit "C" in handwriting of accused. On this evidence, Mr. McCay, who defended the accused, submitted that as it was apparent that the accused was not entrusted within the meaning of the Act, I should direct jury to acquit. He cited The Queen v. O'Ferrall, 1 V.L.R. (L.), 81. Mr. Finlayson, for the Crown, submitted that as the accused was entrusted by Ryan by virtue of his appointment, that was sufficient. I said that I should state a case for the opinion of the Court, but declined to direct jury as asked. I told the jury that if they thought accused had dishonestly applied to his own use the money received from Ryan, and that Ryan had paid him, because he was an officer in the Mines Department, they should convict on the first count as to embezzlement. That there was no evidence of the money having become the money of the Crown to support the second count. I also asked them to answer two written questions. They returned a verdict of guilty on the first count, and not guilty on the second count. They also answered the questions as below: Was it part of the duties of the accused, as a public servant, to receive money on behalf of the Crown? Answer.-No. Was the accused expressly forbidden to receive money on behalf of the Crown? 1 Dear., 344; R. v. O'Ferrall, 1 V.L.R. (L.), 81, at p. 97; R. v. Hawtin, 7 C. & P., 281; R. v. Goodbody, & C. & P., 665; R. v. Thorley, 1 Moo. C.C., 343; R. v. Cullum, 12 Cox, 4€9. it. Mr. Leon for the Crown. MADDEN, C.J., in delivering the judgment of the Court, said.-Upon the only charge of which the prisoner could have been rightly convicted, a jury of his country has let him go. As to every other charge this Court is bound also to let him go. He was charged for that being employed in the Public Service, and having been entrusted, by virtue of such employment, with the receipt, custody, management or control of money, he feloniously did embezzle a certain sum of money which had been entrusted to or received and taken into possession by him by virtue of his employment. The evidence shows distinctly that he had not been entrusted by his employer with the money, but had been positively forbidden to receive Nevertheless he did receive it. The words at the beginning of section 142 of the Crimes Act 1890, operate on the whole section. These words are:"Whosoever being employed in the Public Service of Her Majesty in Victoria and entrusted, by virtue of such employment, with the receipt, custody, management or control of any chattel, money or valuable security." Apparently the intention of the Legislature was that only where a man is entrusted, i.e., authorised to receive or take into custody money, and does receive it from some person outside the service, is he to be guilty of embezzlement. The section then goes on [His Honor read it and continued]. But in every case he is to receive the money because he is employed to receive it. If he chooses to represent that he is authorised when in fact he is not so authorised, and does receive money, then he is guilty either of larceny by trick, or of obtaining money under false pretences. In this case the prisoner was charged with receiving the money by virtue of this employment. He did not so receive it, and consequently the conviction is bad, and should be quashed. Attornies: For the Crown, Guinness, Crown Solicitor; for prisoner, McCay & Thwaites. |