It is pointed out in these cases that the phrase mens rea is a misleading one, and all that it really means is the mental element necessary in most cases to constitute a crime- a state of mind which arises solely on questions of fact. In R. v. Prince, Brett, J., said--" It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe and does believe to be the facts, would, if true, make his acts no criminal offence at all" (u). And Sir Richard Couch, in the Privy Council, says "The absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent" (v). This principle has been applied by our Court in the case of bigamy: see R. v. McMahon (w); R. v. Adams (x). Now, in the present instance, the defendant was under no mistake as to the existence of any facts. All the facts of the case were exactly as he believed them to be. He knew that the captain had given an order. He knew that the order was a usual one. But he wilfully disobeyed that order under the honest belief that he was justified in doing so as a matter of law. His mistake therefore was not of fact, but of law; and this neither shows any absence of mens rea nor does it afford any defence (see Stephen's Com., vol. iv., p. 103), except of course where otherwise provided by statute; and even the absence of mens rea is not always an answer to a statutory charge. Great reliance was placed, on behalf of the defendant, upon the case of R. v. Mollison (y). This case is binding upon me if in point, and in consequence of it I have gone more fully into this matter than I otherwise would have done. It decides that a servant who absents himself from his employment in the bond fide belief that he has a right to do so is not liable to a conviction for unlawfully absenting himself, though he be mistaken in his belief. If this mistaken belief is on facts so as to bring the case within the principles to which I have referred, then the (u) L.R. 2 C.C.R., at p. 169. (x) [1892] 18 V.L.R. 566. (y) 2 V.L.R. (L.) 144. 1898 MARSHALL v. FOSTER. Hood, J. 1898 MARSHALL V. FOSTER. Hood, J. decision does not assist the defendant. But in the judgment are remarks which have been cited as showing that a bonâ fide mistake as to the law would excuse the defendant. If I thought that such a point was really decided, I should have referred this case to the Full Court, to have the matter reconsidered. But I think that the last paragraph of the judgment shows that the mistake which the defendant was held to have made in that case was in believing that an English trade custom had been adopted here. This would be a question of evidence, and therefore one of fact. This also appears from the cases cited in the judgment, which would not support the view that ignorance of the law constitutes a defence. One of these is Reg. v. Prince (z), where the contrary is distinctly laid down, and where the only mistake in question was one of fact. Another case referred to in that judgment was Nicholls v. Hall (a), which decides that knowledge of the facts is an essential ingredient of the particular offence therein dealt with. A third authority was Turner's Case (b). There a conviction which alleged that a servant absented himself from his service was held bad for not saying that he did so without lawful excuse. But it is clear that the lawful excuse meant was one of fact, as appears by the examples given of accident, sickness, or the master's permission. The other decision cited was Rider v. Wood (c), and that is precisely the same as Turner's Case. I think therefore that, notwithstanding the generality of some of the remarks in Reg. v. Mollison, that case does not lay down the doctrine contended for on behalf of the defendant here. In my opinion the decision of the magistrates was correct, and the order nisi will be discharged with costs. As this matter is of general importance, I would have sent it to the Full Court had I been requested to do so, but in the absence of such request I have not felt justified in putting the parties to any further expense. Order nisi discharged. Solicitors for informant : Malleson, England & Stewart. [IN CHAMBERS.] DALGETY AND CO. LIMITED v. BROWN. Practice-“ Rules of Supreme Court 1884 ”—Order X V., r. 1—Accounts and in quiries-Order for foreclosure. In an action by a mortgagee claiming accounts and foreclosure, the plaintiff may obtain under Order XV., r. 1, an order for an account, with all necessary inquiries, and the usual directions as in an order nisi for foreclosure. THIS was a summons under Order XV., r. 1, on behalf of the plaintiff for an order for accounts, and for an order nisi for foreclosure. The plaintiff was a mortgagee in possession under a mortgage given over land under the general law by one C. M. Officer, junior. The defendant was the trustee in the insolvent estate of the said C. M. Officer. The insolvent was out of Victoria, and the trustee stated in his affidavit that he believed that there were other creditors of the estate, and that the plaintiff was in possession of the properties comprised in the mortgages, and further, that he did not know the value of the properties, nor how the plaintiff had conducted the management thereof. There was no statement that there was any preliminary question necessary to be tried, and the case is reported upon the point raised whether the Judge had power under Order XV. to make an order for accounts, including an order nisi for foreclosure. W. H. Moule in support of the application-The provisions of Order XV., r. 1, give the Court power to make the order asked for. The rule contemplates an order for accounts "with all necessary inquiries and directions now usual in the Court in similar cases." The old practice in a foreclosure action directed similar accounts, and the decree was for foreclosure upon the accounts being taken and default being made in payment of the amount found due within a specified time. In this Court Hood, J., in the case of Matthews v. Duffy (a), made a similar order to that now asked for, though he expressed some doubt. Since that decision the practice has been uniform, though the point has never been contested by the defendants in such applications. In England the case of Smith v. Davies (b) decided that the (a) [1892] 14 A.L.T. 90. (b) [1885] 28 Ch. D. 650. 1898 August 11. Hodges, J. 1898 Judge had jurisdiction to make such an order. Then, in the same DALGETY AND CO. year, in the case of Blake v. Harvey (c), Cotton, L.J., in argument LIMITED v. BROWN. Hodges, J. said that he doubted whether an order for foreclosure could be made; but in the following year, in spite of this doubt, the Court of Appeal in Smith v. Davies (d) dismissed the appeal in that case, and therefore must have affirmed the jurisdiction. In Dyott v. Neville (e) a similar order was made by North, J., which was the subject matter of an appeal, but the appellate court refused to deal with the point, as it had not been raised by the defendant in the court below. In Bissett v. Jones (f), Chitty, J., in deference to the doubt raised in Blake v. Harvey said that he was not disposed to make these orders, but he intimated in the judgment that he might do so, and then leave it to the Court of Appeal to decide. In Seton on Decrees (4th ed.), p. 1035, this procedure is recognized. There are two authorities against the practice: Lloyd v. Lloyd (g) and Clover v. Wilts, etc., Building Society (h). The procedure hitherto adopted ensures less expense and a speedier judgment, and involves no injustice. In England the rules have been amended, and by Order LV., r. ɔ̃a, express provision is made to remove all doubts. Mackey to oppose-The English practice has been expressly altered to meet this procedure, and that clearly indicates that the trend of authority was against such an order being made under Order XV. Cotton, L.J., in Blake v. Harvey expressly dissents from the procedure adopted in Smith v. Davey, and it appears that Chitty, J., felt bound by that expression of dissent: Bissett v. Jones. The words of the order indicate no intention to give the Judge jurisdiction to make a final decree or any order in the nature of a final decree. It refers to ordinary accounts and inquiries, not only by mortgagees, but in partnership and administration actions. HODGES, J. This was an application made by a mortgagee under Order XV., r. 1, for accounts to be taken and the usual order nisi for foreclosure. It has been contended that this order (c) [1885] 29 Ch. D. 827. (f) [1886] 32 Ch. D. 635. 1898 LIMITED cannot be made under this rule. In Smith v. Davies (i), Chitty, J., made such an order under this rule, and expressed his opinion DALGETY AND Có. that there was no doubt that that was a proper order to make, although the very objection taken here was taken there; that case went to the Court of Appeal, and is reported only in the (i) 28 Ch. D. 650. V. BROWN. Hodges, J. |