1866.

REGINA

v.

MCILREE.

fully considered; for a witness, though not a Christian, may regard the Bible with reverence, and at all events may deem an oath taken on that book to be a form of swearing which is binding on his conscience.

BARRY, J.-I think so too. I may observe also that none of the consequences predicted as likely to flow from dispensing with oaths altogether will follow from admitting as binding any form or ceremony observed when taking an oath. The penalties of perjury attach equally, whatever the form, if the witness acknowledge that he is bound by the oath taken and swear falsely. The common sense view of the question certainly is, that the substance of the oath, the bringing of himself by the witness under a solemn obligation to tell the truth, is distinguishable from the form, which varies in different nations, and even in different parts of the same country. In the British Islands some persons refuse to conform to the ceremonial mode adopted by others. [His Honor read from the leading case of Omichund v. Barker.] This witness declared that this form of oath bound him to speak the truth, and I think it was sufficient. In reserving the case, I cannot say I felt much doubt; but as I was given to understand various notions prevailed in different places as to the mode of administering oaths, I thought it advantageous that what the law is on the subject should be well considered.

Conviction upheld.

SMITH, APELLANT, v. MARTIN, RESPONDENT.

APPEAL

1866.

June 21.

An affidavit filed under the

When

Smith

"Instruments and Securities Statute," "No.

204, sec. 55,

the

verifying the

residence and

At

PPEAL case stated by Justices in Petty Sessions at St. Kilda. A distress, at the suit of William Smith, was levied, under warrant, of the goods of Dorothea White. the goods were seized W. H. Martin claimed them. and Martin appeared on interpleader summons before Magistrates, to contest the ownership of the goods. the hearing of the interpleader summons Martin offered in evidence a bill of sale from Dorothea White to himself, and White was called to prove her own execution of it, and the identity of the goods in it with those seized. "It was "objected that she was not a competent witness, on the "grounds that attestation was essential to the validity of "the bill, and that Mr. Woolcott, whose name was sub"scribed as an attesting witness thereto, should be called to "prove it, or else evidence be given of his death or absence "from the colony. Reference was made to Whyman v. "Garth (p), and to the Statute of Evidence,' No. 197, sec. 55. The magistrates overruled the objection, and "admitted Dorothea White's evidence, which proved her "execution of the bill of sale, and the identity of the goods "in it with those seized." The magistrates decided for Martin, and on Smith's appeal stated a case, concluding with (among others) the following points:-" (1) The bill "of sale was invalid in consequence of there being an

erasure or interlineation in the jurat of the affidavit sworn by the attesting witness thereto, as to the execu"tion of the bill of sale. (2) Dorothea White was an "incompetent witness. (3) There was an attesting witness "to the bill of sale and no evidence given that he was dead "or out of the colony."

occupation of the attesting

witness to a bill of sale, is not within the "Common Law Procedure Statute 1865, "No.274, sec. 379, an

affidavit "read or made use of in any matter depending in Court."

The "Instru

ments and Securities Statute," No. 204, s. 55, does not

require that

every execu

tion of a bill of sale be attested, but that where any such exe.

cution is

attested there

be filed a true copy of it and an affidavit verifying the residence and occupation of the attesting witness.

Where therefore the execution of a

bill of sale is attested, such execution may under the "Statute of Evidence," No. 197, sec. 55, be proved by other evidence than that of the attesting witness.

(p) 8 Exch. 803,

1866.

SMITH

v.

MARTIN.

SUPREME COURT: VICTORIA.

The Justices held as follows:-"We being of opinion "that Dorothea White was a competent witness to prove the "bill of sale and give evidence of the contents thereof; and "of opinion that the bill of sale had been duly registered; "and of opinion that it was not necessary to call the attesting "witness to prove the bill of sale; and of opinion that the "bill of sale was valid; determined that the matter herein"before stated was sufficient to support the claim of W. H. "Martin to the goods."

Fellows for Martin, the claimant below and Respondent.

Wood for Smith, the execution creditor below and Appellant.

STAWELL, C. J.-The "Common Law Procedure Statute 1865," section 379 (4) applies only to proceedings in the Supreme Court, and to matters depending in that Court; this affidavit was not being then read or made use of in this Court. As to the bill of sale the "Instruments and Securities Statute," section 56 (r) must be read not as requiring that there shall, in every case, be an attestation. of the execution of a bill of sale, but only that wherever there is such an attestation there shall be filed a true copy of it, and an affidavit containing, among other matters, a true description of the residence and occupation of the attesting witness. Under the "Statute of Evidence" (s) it is not necessary that an attesting witness should be called where an attestation is not needed to make the instrument valid. Mrs. White was therefore a competent witness to prove the execution of the bill of sale as well as the identity of the goods. We think the magistrates were correct in the view they took.

Appeal dismissed.

(a) No. 274, sec. 379.

(s) No. 197, sec. 55.

(r) No. 204, sec. 56.

The declaration contained a special count, setting out agreement:—

the following agreement:

66

'February 2 1866-I Edward Jones doth hereby sell to you "William Hollaghan one butcher's shop two-roomed cottage two "yards and boiler also tools &c. situated at Stringer's Creek for the sum of ninety pounds (£90 Os. Od.) the half to be paid in cash and "the balance viz. forty-five pounds (£45) in four months from date "And I Edward Jones doth hereby agree not to start in business on 'Stringer's Creek in opposition to him.

"Witness-William Carr."

"E. JONES.

It averred that all conditions were fulfilled and all things had happened to enable Plaintiff to have a good title made to the real estate and possession of the chattels, yet that the Defendant had not made a good title or delivered the chattels, whereby Plaintiff lost his £45, and the cost of investigating Defendant's title, and the profits of business which he would have made. Damages on this count, £300.

"February 2 1866-I Edward Jones

doth hereby sell to you William Hollaghan one

butcher's shop tworoomed cottage two yards and boiler also tools &c. situated at Stringer's Creek for the

sum of ninety pounds (£90)

the half to be

paid in cash

and the balance viz.

forty-five pounds (£45) in four months from date

And I Edward Jones

agree not to

ness on

Stringer's
Creek in oppo-

sition to him"

The Defendant pleaded to the special count an equitable doth hereby plea, as follows:-"Defendant for a defence on equitable start in busigrounds to so much of the first count as relates to the said shop and cottage says, that at the time of making "the said agreement the Defendant held the said shop and "cottage under a business license,' duly issued to the "Defendant in that behalf, whereof Plaintiff before and at "the making of the agreement had notice; and the tenure "aforesaid, and not a tenure in fee-simple, was intended by

'both parties to be the subject of the said agreement."

ment with the proviso, was void as in general restraint of trade.

Held, on

demurrer, that the pro

viso in italics

was part of

the contract
and could
not be
rejected; and
that the agree-

1866.

HOLLAGHAN

v.

JONES.

June 22.

at

Demurrer to this plea :-"Because it does not shew that "there was any mistake in the said agreement, as a person "may contract to sell a larger interest than he possesses "the time of making the contract; and because, even if "there had been a mistake, a Court of Equity would not "have granted unconditional relief, but would have required "the present Defendant to put the present Plaintiff in possession, or to assign to him the interest which the "Defendant has under the business license."

The Defendant's point for argument was, that the special count in the declaration was bad, because the agreement which it set forth was void, being in restraint of all trade.

Wood for the Plaintiff.

Fellows for the Defendant, gave up his equitable plea, and relied solely on the agreement set forth in the declaration being void as in restraint of all trade.

The authorities referred to were- -Mitchel v. Reynolds (t). Thames Iron Works Company v. Royal Mail Company (v), Bartlett v. Wells (w), Coe v. Clay (x), Jinks v. Edwards (y), Drury v. M'Namara (z), Royal Mines Society v. Magnay (a), Solvency Guarantee Company v. Freeman (b), Woodhouse v. Farebrother (c), Mallan v. May (d), Hilton v. Eckersley (e), and Green v. Price (ƒ).

Cur. adv. vult.

STAWELL, C. J.-Demurrer to plea; it was not attempted to sustain the plea; the Defendant's counsel