inference drawn from Rule 8 in Taylor v. Port. 6, A.L.T. 155), it is clear that the delivery of defence does not waive the right to particulars, see Sachs v. Spulman 37 ch. D. 295. As to requiring an affidavit from the defendant, I have referred to the case of Thompson v. Berkley 31, W.R. 230, an action for seduction in which the defendant was held not en titled to particulars without an affidavit denying the seduction. If an affidavit has been required because the court required the defendant to pledge his oath to the truth of his defence before he could get discovery, I should require an affidavit in this case; but I gather from Thompson v. Berkley and other cases that an affidavit is only wanted for the purpose of showing that the discovery asked for is as to matters of which the party applying is himself ignorant. Applying that principle to the present case, where the defendant denies that he promised to marry at any time, I think it would be a useless formality to require him to make an affidavit that he did not know when and where he promised. Sachs v. Spulman repeats with approval the observations of the earlier anthority that the giving of particulars should be encouraged as tending to narrow the issues. I order the particulars demanded in this case to be furnished within 14 days, costs of so doing to be costs in the cause; but no additional time for delivering defence to be allowed under Rule 8. Plaintiff's and defendant's costs of this summons to be costs in the cause and I certify for counsel. documents. He cited Australian Mortgage Land, Mr. Isaacs in reply. Southwark Water Company v. Quick is quite beside the question. No question has ever been raised as to the jurisdiction of a judge to hear an application ex parte. Order XXXI r. 14, gives a judge power to make an order at any time, therefore your Honor could have made the order ex parte as was done in this case. He also referred to Chitty's Practice, 14 Ed. pg. 1398. HIS HONOR Said, I will consider the matter. HIS HONOR, on a subsequent day, read the following judgment. In this case I have been referred to several authorities as to what is the English practice, and what is our own practice with regard to applications for discovery under Rule 12 of Order XXXI. I made an order for discovery of documents by the plaintiff on an ex parte application by the defendant and as part of the order directed that the costs of the application should be costs in the cause. This order has not been obeyed, and in answer to a summons to dismiss the action or stay proceedings, it is urged that the order was bad as made without jurisdiction. The cases of Watson v. Watson 7 A.L.T. 139, and Crispe v. Appleton 6, A.L.T. 265, decided by Williams, J., and Kepple v. Thornton 7, A.L.T. 95, decided by Holroyd J., show that this court has sanctioned the practice of applying ex parte and that the costs of the application may be made costs in the 31st Oct., 14th Nov. cause. The only case in our court conflicting with these decisions is Australian Mortgage Company v. London Chartered Bank 7 A.L.T. 65, which is Solicitors, for plaintiff, Wisewould, Gibbs & Wisewould; for defendant, Budd. REES V. DUNBAR. Rules of Supreme Court 1884, Order XXXI. rr. 12, apparently inconsistent with them as to costs and 14, 21.-Discovery of documents Application inclines in favour of a general summons for directions. Application for an order for discovery of documents can be made ex parte. Application on behalf of the defendant that the action should be dismissed or proceedings therein stayed on the ground that the plaintiff had not made discovery of documents in obedience to an order obtained by the defendant on an ex parte application. Mr. Isaacs, in support. The application is made under Order XXXI r. 21, which provides that if the plaintiff fails to comply with an order for discovery of documents he is liable to attachment and to have his action dismissed for want of prosecution. Mr. Hood to oppose. The plaintiff desires to have the order directing him to make discovery set aside. The application for the order was made ex parte and should have been made on summons, Chitty's Forms 12 Ed., pg. 139 It was also made before the defence was delivered. The judges attention was not called to the difference between Rules 1 and 12 of order XXXI. There is a material difference between discovery by interrogatories and discovery of I as sought by the summons directing all proceedings in the act on to be stayed until the plaintiff has obeyed the order or the defendant applies for a further order. The d fendant should be fully indemnified agains: costs caused by the attempt of the plaintiff's advisers to reverse the practice of the court. I therefore direct the plaintiff to pay the defendant L5 5s, costs of this summons, unless the plaintiff would prefer to have defendant's costs taxed, in which case I will direct taxation and certify for counsel. Petitioner tion of the amount of the allowance. Mr. Box (with him Mr. Hood) for the respondent. The petitioner's argument would read into section 22 the words shall be entitled to retire." Teachers can only retire on the same basis as a public servant. Solicitors, for plaintiff, Strongman & Crawford; Section 70 of 773 must be read literally. for defendant, Briggs & Snowball. SITTINGS IN BANCO. 5th Nov., 188 (Before Higinbotham, C.J., Kerferd and MILLS V. THE QUEEN. HIGINBOTHAM C. J.-This is a special case stated by the parties, which raises the question of what are the rights of а teacher in the Department of Education to a retiring allowance under the circumstances of the present case. The petitioner became an officer employed in the Education Department on the 1st May, 1873, within the meaning of the 22nd section of the Act No. 447, the Education Act of 1872. After the petitioner had been 15 years in the service he retired from his position before he had attained the age of 60 years, and without having produced medical evidence satisfactory to the Governor in Council that he was Education Act No. 447, sec. 22; Civil Service Act incapable, from infirmity of body or mind, to disNo. 160, sec. 42; Public Service Act 773, sec. 70. charge the duties of his office, and that such infirmity An officer employed in the Education Department on was likely to be permanent, and without having rethe 1st May 1873 within the meaning of sectionceived permission from the Governor in Council to of Act No. 447 retired after 15 years' service from retire. The petitioner claims that he is entitled his position without having brought himself und under the 22nd section of the Act 447, and the 70th any of the provisions of section 42 of Act No. 160 and claimed to be entitled to a retiring allowance under the 22nd section of the Act No. 447 and the 70th section of Act No. 773, computed upon the amount provided by the Act No. 160 for a super-shall be employed in the Education department, or annuated officer. Held-He was not entitled to a retiring allowance. Special case stated for the opinion of the Court. The facts appear sufficiently from the judgment of Higinbotham, C.J. Mr. Hodges (Dr. Madden, Mr. Mitchell and Mr. Joske with him) for petitioner. The question in this case depends principally upon the construction of one section of each of two Acts of Parliament, section 22 of the Education Act No. 447, and sec. 70 of the Public Service Act No. 773. Taken together the only condition to be fulfilled by the petitioner is the 15 years' service of section 22, and the basis of computation is Act No. 160. [A'Beckett J.-l'o you say that sec. 22 of Act No. 447 gives you an absolute right to retire after 15 years' service ?] Yes, for the amount of retiring allowance will differ according to length of service; the words are simply "shall be entitled." [Higinbotham C.J.-Any other officer could not retire without bringing himself under the conditions and circumstances provided in sect on 42 of Act 160.] Word "basis" does not include the conditions on which the petitioner may retire but the mere calcula section of the Public Service Act 1883, to a retiring allowance computed upon the amount provided by the Act 160 for a superannuated officer. The 22nd section of the Act 447 provides that "any officer who It teacher who shall be employed in any state school, upon having served 15 years under this act, or partly under this act and partly under any law previously in force, shall be entitled to a retiring allowance on the same basis as may hereafter be provided for members of the public service." At the time that this act came into operation, the Act No. 160, relating to the Civil Service of Victoria, had been in operation for 10 years. The effect of this section was to put the teacher out of the existing act. It did not confer upon an officer or teacher in the Education department any rights under that Civil Service Act. merely gave a promise to the officers and teachers that upon serving for 15 years they would be entitled to a retiring allowance on the same basis as might be provided under a subsequent act for members of the Public Service. The next subsequent act was the Public Service Act of 1883, the 70th section of which related to officers and teachers in the Department of Education. Section 70 provided that "any officer employed in the Education department, or teacher in any state school, who at the time of the Act No. 710 coming into operation held the respective positions of officer or teacher in such department shall be entitled to a retiring allowance under the conditions of the officer or teacher retired, then a very plain meaning could be given to them by reference to those provisions of the Act No. 160 relating to the public service, and especially to the provisions contained in section 42 of that act. That section provided that "when any officer desires to retire from active service, and has not attained the full age of 60 years, if he produce medical evidence satisfactory to the Governor in Council that he is incapable from infirmity of mind or body to discharge the duties of his office, and that such infirmity is likely to be permanent, the Governor in Council may permit such officer to retire accordingly upon a superannuation allowance." That was a section which, if it were referred to in conjunction with section 70 of the l'ublic Service Act of 1883, officer would be entitled to a retiring allowance, namely, that he was permitted to retire before he was 60 years of age, and produced medical evidence satisfactory to the Governor in Council that he was incapable from infirmity of mind or body to discharge the duties of his office, and that such infirmity was likely to be permanent. It was only in these circumstances that an officer or teacher who had served for 15 years had the right to retire before he had arrived at the age of superannuation. In this case the petitioner claims that he has a right to retire without permission, and without complying with the condition of the production of medical evidence as to permanent infirmity of mind or body, but that he has a right to retire after 15 years' service, and to claim a retiring allowance. That is not the legitimate, natural, or reasonable meaning to be given to these very ambiguous words in section 70. But by giving to them what seems a liberal and reasonable interpretation, the petitioner has not placed himself within the conditions and circumstances which entitle him to demand on hls voluntary retirement from the service the retiring allowance which he claims. We therefore answer the question that in our opinion judgment should be entered for the respondent; and according to the terms of the case judgment would be entered for the respondent with costs. Act No. 447, and to be computed under the Act No. 160." The Act No. 710 was an act passed in the interval between the Education Act No. 447 and the Public Service Act of 1883, and it had the general effect of abolishing pensions. The 70th section of the Public Service Act of 1883 provides that officers and teachers who were employed up to the time of the passing of the Act No. 710 should not be deprived of their rights to a retiring allowance. The words in that section, "Under the conditions of the Act No. 477," referred them back to the 221 d section of the Act 447. It is contended by the petitioner that the only condition in the 22nd section of the Act 447 is a condition of service for 15 years. But the 70th section related to "conditions," not to " condition," and appears to point, together with the sub-pointed to the circumstances under which a teacher or sequent words of the same section, not merely to services for 15 years, but also to the granting of a retiring allowance on a basis. The words "and to be computed under the provisions of the Act No. 160"| were ambiguous. If they should be interpreted in a strict sense they appeared to point to a mere calculation of the amount of the allowance. And it is the contention of the petitioner that that is their legal effect. But if they are to be understood in that sense then there are no provisions in the Act. 160 which necessarily and strictly point to the conclusion that the retiring allowance of an officer is to be calculated on the amount to be paid to a superannuated officer. The court think that it is necessary to give a larger and fuller meaning to these words than that which would be given to them by the petitioner, and which if given effect to would lead to the conclusion that section 70 of this act was virtually inoperative. We think the effects of the words "and to be computed under the provisions of the Act No. 160 must be taken to refer to the words in section 22 of 447, relating to the basis on which the retiring allowance should be calculated, and they must be held to include not merely the calculation of the amount, but the circumstances under which the retiring allowance would become payable, the time of retirement, the circumstances under which the retirement would be allowed, and the amount to be allowed under the circumstances of each case. If the strict meaning of the words were given to the section that had been contended for on behalf of the petitioner, then it must lead to the conclusion that the section is inoperative. If we do not give to the section the larger meaning in the sense I have indicated, the result would be, or seem to be, that it was the intention of Parliament that an officer or teacher in the Education Department, after serving for 15 years, and while still in the full possession of his trained capacity and powers as an officer and teacher, might retire from the public service and demand a pension while fully equal to the discharge of his duties. It would require very strict words indeed to justify them in placing that interpretation on the section. If, however, we place upon the words the meaning that they included the circumstances under which an KERFERD, J., I concur. The foundation of the rights of the teachers was given by section 22 of the Act 447. At that time the teachers, under the common school system, were paid partly by fees and partly by salary. Their position was by that act completely changed. They were placed in the position of being officers in the public service receiv ing salaries. Parliament by that time also, by section 22 of the Education Act 447, made a statutory promise that when they came to deal with the public service as a whole, as distinguished from the civil service, the teachers would be placed on the same basis as the other public servants. No act dealing with the public service was passed till the act No. 773 was passed in 1883. Eleven years had then elapsed from the time the statutory promise was made in the act 447. The preamble of the act No. 773 recited what was the real state of affairs when that act was passed. It stated:"Whereas a large number of person are employed in the service of the state who are not subject to, nor included within, the provisions of the act No. 160, intitled An Act to Regulate the Civil Service; and whereas it is desirable to repeal that act, and to make better and general provisions which shall apply to and include all departments of the publie service not heretofore provided for by an act of Parliament," &c. The act then instead of having a system of superannuation or pension, adopted a new policy, with which we are not now concerned in considering this case, except as it affects the members of the public service who were in the service when the act was passed. They were dealt with by provisions of the act, which dealt as a whole with the classified and unclassified officers. The unclass fied officers were in the proportion of three to one of the classified officers; but they were given a statutory right as to retiring allowances, and gratuities, that the classified officers had under the Act No. 160. In the 22nd section of the act 447 no provision was made as to when the teachers should be allowed to retire. A contract between the state and an individual in the public service had, like all other contracts of the same character, the condition of mutual obligations. In the absence of the enactment of section 70 of the Public Service Act there was no provision as to when a teacher might retire. But section 70 gave a teacher the same rights as to retiring which were possessed by other members of the public service under the act 160. In section 39 of the act 160 it was provided that when any officer, after the passing of this act, has attained the full age of 60 years he shall thereupon retire from active service upon a superannuation allowance." So that a public servant when he attained the age of 60 years was, by operation of law, out of the service, and he then took his pension. I concur with the view that on a strict construction of section 70 of the Public Service Act 1883 it would be inoperative, as there was no provision made for the time when a person who was entitled to a pension after 15 years of service should retire. But if we read it that a teacher might retire on the same basis as a public servant might do, then it was intelligible. A'BECKETT, J., I concur in the opinion that section 22 of the act 447 does not give a teacher the right to retire. It merely provides for a retiring allowance; but he is not to get that retiring allowance until the conditions on which he might retire were provided. If that is the correct view, then the section is inoperative, as it does not provide when a person might retire. The plaintiff would not be entitled to retire at all unless section 70 of the Public Service Act of 1883 were read as incorporating the provisions of the Act No. 160 in reference to superannuation of officers. I adopt the more liberal construction of the act, and am of opinion that the provisions as to superannuation in the act 160 were incorporated in section 70 of the act of 1883, and unless the petitioner complied with those provisions he was not entitled to retire. Judgment for the respondent with costs. Solicitors for the petitioner, Brahe and Gair; for the respondent, Crown Solicitor. 5th Nov., 1888. ACTON V. CRAWFORD. Licensing Act 1885 Amendment Act, No. 949, section 48. Proof of first conviction. Justices of the Peace Act 953, s.8. 67 (2) 155. Where no evidence of a fact has been given before Justices the Supreme Court will not grant an application under section 155 to receive the evidence on the review either oral or by affidavit. Order nisi to review a decision of the justices at South Melbourne by which the defendant, G. H. second offence of Sunday trading. It was sought to Crawford, a licensed victualler, was fined L10 for a review the decision of the justices on the ground that show that the defendant had been previously conno legal evidence had been adduced before them to victed. From the affidavit it appeared that at the hearing of the case the justices decided to convict the defendant of the alleged offence. The chairman then said to the Inspector of Police "I see by the books before me (i. e. the register) this is the second offence?” The solicitor for the defendant objected that this was and it was irregular to leave such a statement in the not the proper way to prove a previous conviction, book. The atidavit of the solicitor proceeded to state "I was ordered by the said chairman not to interfere or he would deal with me in another way," and he then said to the Inspector "Is this the second offence?" The Inspector said, Yes, Your Worships, I can prove it." The solicitor again objected that there was no evidence of a first conviction, but the justices overruled the objection and fined the defen dant L10. 66 information functions of justices as it is asked to do by allowing proof now to be given. The first conviction was a matter of fact to be proved as strictly as the selling of the beer on Sunday. Here only one half of the offence was proved, and no evidence at all of a previous conviction was given. He referred to Oke's Magisterial Synopsis, 13th Ed. p. 187. HIGINBOTHAM, C. J., This is an laid under section 48 of the Licensing Act 1885 Amendment Act, which provides that "every licensed person on whose licensed premises any sale or barter of, or traffic in, liquor takes place, or on which any liquor is drunk on Sunday, except by lodgers in such house, or by bona fide travellers, shall be for a first offence liable to a penalty of not less than £2 nor exceeding £10; for a second offence shall be liable to a penalty of not less than £10, nor exceeding £20." The information was for a second offence under this section. At the hearing of the case the justices decided to convict the defend ant of the alleged offence. This, then, occurred as stated in the affidavit of the defendant's solicitor. The chairman said to the inspector of police, "I see from the books before me this is the second offence." The solicitor for the defendant objected that this was not the proper way to prove a previous conviction, and it was irregular to leave such a statement in the book. The affidavit of the solicitor proceeded to state "I was ordered by the said chairman not to interfere, or he would deal with me in another way," and then said to the inspector "Is this the second offence. The inspector said, "Yes, your worships; I can prove it." The solicitor again objected that there was no evidence of a first conviction, and until there was legal proof he insisted on behalf of the defendant, who did not admit it that there should be such proof before cognisance could be taken of it. The justices overruled the objection, and fined the defendant £10. The objection taken by the order nisi to review is that the justices were in error in convicting the defendant as and for a second offence under the act, inasmuch as there was no evidence or proof of a first conviction. The court think that objection is a good one, but an application was made on behalf of the respondent that this Court should allow further evidence, either oral or by affidavit, to be given. The power to allow such evidence is given by section 155 of the Justices of the Peace Act, No. 953, which provides that the court may, if it think fit, receive any further evidence, either oral or by affidavit. The provisions of that section were wholesome and salutary. and would materially assist the Court in dealing according to natural justice with the cases that came before it. The material part was that the Court might allow further evidence. But here there was no evidence at all. The magistrates, apparently misled by looking at the register, which, taken by itself, and without proof of the identity of the person named as defendant, was no evidence at all, resisted the objection taken by the solicitor for the defendant, and very 24th Nov. 1888. properly taken, that before convicting of a second offence the justices should have legal proof of the previous conviction. It was expressly directed by the second sub-section of section 67, which allowed a register to be prima facie evidence of the matters entered therein, that nothing in the section shall dispense with legal proof of a previous conviction for an offence when required to be proved against a The Justices person charged with another offence. overruled the objection in a way that indicated some disposition to give no audience to the objection taken by the solicitor. Still it does not appear that the course taken by the justices was anything more than by closer attention and reasonable willingness to an error or mistake, which might have been corrected listen to the objection. The provision which enabled the Court to allow further evidence to be given before it ought not to be extended any further, and in a case where no evidence at all had been given, we ought not, under circumstances like those that appeared in section giving power to remit the case for hearing or this case, to grant the application. But the same rehearing, and we propose to take that course in the present instance. It will be remitted to the justices to rehear the entire case. heard the prosecutor would be in a position to adduce When it was relegal evidence if he could to prove the previous conviction, and the defendant would be in a position to prove if he could that there was no previous conviction, or that there was a mistake in the entry in the register, on which the magistrates appeared to have hastily acted. The order to review will be made absolute without costs, and the case remitted to the justices to be reheard. O'CONNOR V. PRICE. Nov. 5. "Person occu Licensing Act 1885, secs. 4 and 134- A club called the Buffalo Club held premises occupied Held that as such officer he ought to have known |