St. Arnaud. The defendant Collier was proceeded against under sec. 102 of the Crimes Act, on the ground that he was found in possession of certain posts belonging to the informant Hodgson. It appeared that Collier employed a contractor named Smith to put up some fencing on his land. Smith apparently took some posts belonging to Hodgson, and used these posts in the fencing of Collier's land. Subsequently Hodgson came to Collier and told him that some of the posts thus erected were his, and demanded their return or payment for the same. Collier refused to return them or to pay for them. Hodgson forthwith proceeded against Collier under sec. 102 of the Crimes Act. The evidence is reviewed at length in the judgment, but it may be added that Collier in giving evidence stated that he knew nothing about the posts or where they came from. The justices convicted the defendant, and ordered him to pay the price of the posts. The defendant obtained an order to review this decision, upon the ground that the evidence proved that he had come lawfully by the posts, and could not therefore be convicted under sec. 102.

Cussen to show cause-The evidence is clear that the defendant had posts in his possession which he did not come lawfully by. "Lawfully" does not mean "honestly." As soon as the demand was made the defendant should have returned or paid for the posts; he retains possession with the knowledge that they are the property of another, and as he had no legal. title to them he comes clearly within the mischief aimed at by the section (a). This section was taken from 43 Eliz., c. 7, and the object of that old Act would seem to indicate that "lawfully" meant "a good title." The onus is clearly cast upon the defendant to satisfy the justices that he came lawfully by the same: the question is not whether the justices ought to have been satisfied, but rather whether they were satisfied.

1898

HODGSON

v.

COLLIER.

A'Beckett, J.

1898

HODGSON

v.

COLLIER.

Starke to move the order absolute-The word "lawfully" means "honestly;" the heading of the subdivision of the Act in which this section is placed is " larceny of things attached to or A'Beckett, J. growing on land," and the object of the Legislature was to provide a summary method for punishing dishonest dealings. The essential ingredient is that the property must be found in his possession "with his knowledge;" the knowledge refers to the dishonest acquisition, not to an acquisition without knowledge of any dishonesty and subsequent information being given when the property is already in his possession which would tend to show that the property was in reality the property of another. Knowledge" means "guilty knowledge." The defendant was not called upon to show a lawful excuse until the informant had established his case, which he failed to do. The evidence is clear that the defendant in the ordinary course of business employed a contractor to put up the fencing. It is not alleged that he did not pay a full and proper price for the posts, and there is no suggestion that there were any circumstances which could have or should have aroused the defendant's suspicions as to the contractor's honesty. There is no suggestion of any criminal intent, and the justices were wrong in finding the defendant guilty of the offence.

A'BECKETT, J. This was an order nisi to test the validity of a conviction under sec. 102 of the Crimes Act, and it is necessary to look at the construction of that section to see what is necessary to a conviction.

Taking the subject matter of this prosecution, it provides that if a post is found in the possession of a person with his knowledge and he is brought before justices, he can be convicted and may have to pay over and above the value of the article any sum not exceeding 2., unless he satisfies the justices that he came lawfully by the same. The evidence required for the prosecution is of a very simple character, and it casts upon the person informed against the onus of showing that he came lawfully by the same. "Coming lawfully by the same" I think must mean, looking at the character of the offence and the framing of the section, that he came honestly by

the same.
I do not think it should be read as meaning that he
came by the property in such a way as to acquire a good title to
the property. If a horse be substituted for the word "post" in
the section, suppose a man was brought up for having a horse
in his possession and he proved that he bought it honestly, and
that there was no doubt in the minds of the justices before
whom the case came that he had honestly bought it, he would
have come honestly by the horse, although he would not have
a good title to it, and he could not, in my opinion, be convicted
under this section. It refers virtually to the defence of an honest
acquisition of property. What appears to have taken place in
this case was this: A man named Smith had, by means which
were not lawful as against the owner, come into possession of a
number of posts; Smith was employed by Collier to fence his
land, and Smith put some of these posts in on Collier's land. The
owner of the posts came to Collier and said, " Those are my posts
and I must have them," and Collier refused to give them up.
It does not appear that Collier knew or did not know when the
demand was made upon him whether they belonged to the
person claiming them or not, and he appears to have been in-
different in the matter, and thought that because he employed
Smith and was ignorant of any property in Hodgson (the owner)
that Hodgson's demand was an unreasonable one. Then Hodg-
son, being angry at this refusal, summoned Collier under this sec-
tion. Under this section, assuming the evidence to be perfectly
clear, as it was, Collier could not be convicted if he satisfied the
justices that he had come lawfully by the posts. I should say if
the facts were as I have stated, and there was no other fact
beyond these, that he had come lawfully by the posts; that is,
he employed a contractor and paid him, and that without his
knowledge the contractor had used in fencing his land another
person's posts. Mr. Cussen has argued that what is necessary to
the defence is that justices should be satisfied upon that point
and if I thought that there was any doubt in the minds of the
justices as to Collier having been an accomplice of Smith, and
being aware that Smith was fencing his land with another
person's posts, I should say undoubtedly that the conviction
ought to stand. But on the facts of the case, on all the

1898

HODGSON

v.

COLLIER.

A'Beckett, J.

1898

HODGSON

V.

COLLIER.

A'Beckett, J.

probabilities of the case, and upon the way in which the case
was opened, I feel no doubt in my own mind that the justices
had no doubt that Collier's statement was true, and that they
were satisfied as to that. Why I say so is this: the case was
presented to them in this way, and the case for the prosecution
as stated in Hodgson's affidavit did not pretend to throw any
doubt upon Collier's statement, but rested the case entirely upon
the fact of the identity of the posts as those in the possession of
Collier, and which formerly belonged to Hodgson.
In open-
ing the case counsel referred to the fact that Smith had
been convicted in another prosecution as to similar posts, and
said that the 15 posts now claimed were taken by Smith
from the same heap and placed in Collier's fence, and that
the informant had formally demanded the posts from Collier;
no question is directed to Collier as to whether he had any
means of knowing that the posts which Smith was using
belonged to someone else; there is nothing to suggest that he
paid Smith less for them than the ordinary price. There is
nothing to suggest that that point of view was brought before
the justices. I do not think the prosecution intended to suggest
that Collier was an accomplice of Smith's, or had reason to
suspect that Smith was dishonestly obtaining the posts which he
had contracted to put up. I deal with these facts at some length
so that it may be distinctly understood that where there is a real
doubt in the minds of the justices as to the essence of the offence
it is not for the Judge to form a different opinion and to say that
the evidence should have satisfied the justices. I do not think
that the justices ever entertained the idea that Collier was an
accomplice of Smith, and the view which I feel did satisfy them
is not an absurd one at all. I do not attribute to them anything
which can be called folly. I think they considered thus: this
man's posts are found in Collier's land. They were quite sure
about that; they were quite sure that before the summons was
taken out Hodgson asked Collier to give them back or to pay
for them, and that Collier was quite indifferent about the matter
and did not trouble himself to go into the facts; and under those
circumstances it would not be much to make Collier pay the
penalty. That is the ground upon which they proceed, and I

think the order nisi should be made absolute on the second ground, which was added by Hodges, J.

1898

HODGSON บ.

COLLIER.

Solicitor for informant: J. L. Dixon (agent for Dunkley). Solicitors for defendant: Hickford & Legge (agents for Gilfillan).

W. H. M.

THE MELBOURNE TRAMWAY AND OMNIBUS COMPANY LIMITED,
APPELLANTS, AND THE MAYOR, ETC., OF MELBOURNE AND OTHERS,
RESPONDENTS.

Mandamus- Rates and rating—Justices Act 1890 (No. 1105), s. 139— Local
Government Act 1890 (No. 1112), Part X.. Division 7 (ss. 276-287) - Local
Government Act 1891 (No. 1243); ss. 60, 61-Appeals against rates-Juris-
diction of County Court--Statement of case by Judge of County Court for
determination by Supreme Court.

Notwithstanding the concluding words of sec. 60 of the Local Government Act 1891 (No. 1243) a Judge of the County Court on the hearing of an appeal against the rating of an "undertaking" under Division 7 (2) of the Local Government Act 1890 (No. 1112), as amended by the Local Government Act 1891 (No. 1243) can be compelled by mandamus to state the facts specially for the opinion of the Supreme Court by virtue of the provisions of the 139th section of the Justices

Act 1890.

Russell v. Shire of Leigh (5 V.L.R. (L.) 199) explained.

THIS was a rule nisi for a mandamus calling upon the learned Judge of the County Court (His Honor Judge Casey) to state the facts specially for the determination of the Supreme Court under sec. 139 of the Justices Act 1890 in an appeal against the rating of the undertaking of the Melbourne Tramway and Omnibus Company Limited.

Under sec. 60 of the Local Government Act 1891 the appellants had appealed against the valuation made upon their undertaking by the city of Melbourne. They had also made similar appeals against their rating by other municipalities. These appeals were consolidated, and on the hearing were allowed. Counsel for the respondents then asked the learned Judge to state a case for the opinion of the Supreme Court, but His Honor declined to do so, as he held he had no jurisdiction.

1898

April 29,
May 12.

Hood, J.