66 sewing machine, heavy harness and working tools, and for damages for detaining same." His particulars of claim were: To value of goods detained as follows:-Wagon 160, Beale piano £40, sewing machine £5, heavy harness £20, working tools £10, total £135. To damages for detention £15-£150.” The defendants gave notice of intention to defend on the following grounds:-"Not guilty; the wagon and heavy harness are the property of R. F. Evans, of Merriwa, which we hold as bailees only; the Beale piano is the property of our two sisters, who have ordered us not to deliver the same to anyone without their authority; the sewing machine is the property of plaintiff's wife; plaintiff has a box of tools at our house which he is at liberty to remove at any time; we have no tools in our possession." On 25th August last the plaintiff's solicitors wrote the following letter to the defendants: We are instructed by H. A. Nelson to demand, and do hereby demand from you, possession of a wagon, a Beale piano, a sewing machine, heavy harness and working tools, which he wishes to remove from their present location, but which he is unable to do on account of their detention by you. Unless you allow him to remove the articles forth with, action will be taken against you." To this letter no reply was forwarded, but the defendants, in their evidence, admitted its receipt. Evidence was given on behalf of the plaintiff, and on behalf of the defendants. At its close, the defendants' solicitor took the following points, as appear Ly the Magistrate's note: No proof of ownership as regards wagon, harness or tools; no proof of possession; no proof of detention; no proof of conversion. If the Court should hold that the wagon is not the property of Evans, then it is the property of 66 The Court gave judgment for the plaintiff. The judgment is in the form prescribed by the rules under The Magistrates Courts Act of 1921, under the heading "judgment in detinue." It adjudges that the plaintiff recover against the defendants £130, the value of chattels of the plaintiff "wrongfully detained," and £10 damages for the detention. From this judgment the defendants appeal, on the grounds that there was no evidence to support the findings and judgment of the Magistrate, that his findings are unreasonal le and contrary to the evidence, and that the judgment of the Magistrate is contrary to law. F.C. NELSON AND McCawley C.J. F.C. NELSON AND McCawley C.J It appears, then, both from the plaint and the judgment that the action was in detinue, not in trover. Jenks, in his Digest of the Civil Law, at p. 422, thus sums up the effect of the authorities: "Any person who, being in possession of the goods of another, unlawfully refuses to give them up on demand, is liable to an action in detinue, in which he is ordered to restore the goods, or pay the value thereof, and to pay damages for the unlawful detention." In this action, the refusal to give up constitutes the offence, and is not merely evidence of it. In Clements v. Flight (1) the Court of Exchequer held that the true meaning of detain in the declaration in detinue was that the defendant withheld the goods and prevented the plaintiff from having possession of them. Pollock C.B., in declaring the judgment of the Court, said, at p. 49: If it meant the mere keeping of possession, not adverse, how could such a possession form the ground of action? If it meant that the defendant had omitted, and still omitted, to be active in bringing the goods to plaintiff, the action could not be maintained without showing an obligation by contract to do so. We have no doubt, therefore, that the detention complained of is an adverse detention. Request and refusal is the point in an action of detinue, but not in trover, in which conversion is the point, and request and refusal evidence only." The appellants contend in the first place there is no evidence of a demand and refusal. The failure to reply to the letter of the 25th August cannot be regarded as sufficient evidence of a refusal of demand for the articles. The letter demands that the plaintiff be allowed to remove the articles. There was no legal obligation on the appellants to send a reply to the letter. Their failure to send a reply cannot be construed as a refusal to allow the respondent to remove his goods. The respondents, however, contend that there is evidence of conversion. Demand and refusal are evidence of conversion, but conversion may be established without evidence of a demand. Conversion, however, without proof of demand and refusal, will not support an action for detinue. In trover, evidence of conversion would suffice, but the gist of the action of detinue is the unlawful failure to deliver up goods when demanded. Was the point that there was no refusal raised in the Magistrates Court by the contention of appellant's solicitor that there was no (1) 1846, 16 M. & W. 42. proof of detention? The plea non detinet was always held to put in issue the fact of detention, using the term detention in the sense defined in Clements v. Flight (1). See Mason v. Farnell (2). We think the record of the solicitor's contention that there was no proof of detention is prima facie sufficient to show that the point that there was no refusal to deliver up the goods was raised. There is, moreover, the appellant's plea of not guilty, the effect of which is the same as that of non detinet (Bullen & Leake, 3rd Ed., p. 728). We think the judgment for detention cannot stand, save as to the piano, concerning which the appellants do not desire that the judgment in the Court below should be disturbed. The appeal will, therefore, be allowed, except as to the piano, and judgment of nonsuit entered as to all the chattels referred to in the judgment of the Magistrates Court, with the exception of the piano. Judgment in the Magistrates Court shall be varied accordingly. The respondent must pay the costs of this appeal. Appeal allowed, with costs. Solicitors for appellant: Morris, Fletcher & Cross, for E. Fletcher, Goondiwindi. Solicitors for respondent: T. W. Biggs, for Leeper & Leeper. Goondiwindi. (1) 1846, 16 M. & W. 42. (2) 1844, 12 M. & W. 674. F.C. NELSON AND McCawley C.J. 1922. December 8. McCawley C.J. [IN THE FULL COURT.] PORTER v. INGOLD, Ex parte INGOLD. Justices-Practice-Service of summons-Sufficiency of affidavit of service-Reasonableness of time allowed between service and time for appearance-Order made in defendant's absenceProhibition-Quashing order-The Justices Act of 1886 (50 Vic., No. 17) Second Schedule, Form 6-The Deserted Wives and Children Acts of 1840 (4 Vic., No. 5), s. 2--The Deserted Wives and Children Act Amendment Act of 1858 (22 Vic., No. 6), s. 2. Service of a summons, issued out of a Court of Petty Sessions, was effected on a defendant at a place situated about 65 miles from Brisbane, on the afternoon of November 6th, calling upon the defendant to appear at the Court in Brisbane on November 8th, at 10 a.m. The defendant did not appear, and the Magistrate, after proof of service on the defendant by affidavit in Form 6 of the Third Schedule to The Justices Act of 1886, heard the evidence for the complainant, and made an order against the defendant. Held, that in view of the circumstances of the case there was no denial of justice. The sufficiency or otherwise of the time to be allowed between the date of service of a summons on a complaint, and the date of hearing of the complaint, is a question for determination by the Court which hears the complaint. An affidavit of service in Form 6 of the Third Schedule of The Justices Act of 1886 is sufficient proof of due service for the purposes of s. 2 of The Deserted Wives and Children Act of 1858. ORDER NISI FOR QUASHING Order or PROHIBITION. The respondent made a complaint in the Court of Petty Sessions at Brisbane, by which she claimed maintenance for her illegitimate child against the putative father, the appellant. A summons on that complaint was issued at Brisbane on 2nd November, 1922, and the summons was returned to the Court endorsed with the usual oath of service to the effect that T. J. Brennan, a police constable, had served the defendant with the summons personally on Monday, 6th November, 1922, at Witta. The oath of service was in the form set out in the second schedule of The Justices Act of 1886. The time fixed for the hearing of the complaint was 8th November, 1922, at 10 o'clock, at the Court, Brisk ane. The defendant did not appear at the time and place so notified, and F.C. PORTER V. INGOLD. after the original summons, with the oath of service endorsed to the above effect, had been admitted as evidence, the complainant, INGOLD, Ez parte by her solicitor, proceeded to prove her case, and the Magistrate made an order directing the appellant to pay maintenance at the rate of 30s. per week. The appellant then obtained, before Shand J., an order nisi calling upon the respondent and the Magistrate to show cause why the order should not be quashed, or alternatively why a writ of prohibition should not issue restraining further proceedings, thereon, on the grounds that the Magistrate had no jurisidiction to hear the complaint, and that the proceedings were contrary to law and contrary to natural justice. From the affidavit of the appellant, filed on the application for the order nisi, it appeared that on 29th October the appellant received a letter from the respondent's solicitors, asking if he would marry the respondent before her baby was born, or undertake to pay confinement expenses and maintenance, to which he replied, saying that he would do neither, as he was not the father of the child; that when he was served with the summons the constable read the same over to him, and he understood the date of hearing to be 8th December and not 8th November; that on 13th November he consulted his solicitor and then learned that he had been mistaken in the day fixed for the hearing; that even if he had been aware of the true date of the hearing of the summons he would not have had sufficient time to prepare his defence, as he resided at Witta, which is distant approximately sixty-five miles from Brisbane. The defendant could, by using the ordinary means of travelling, have arrived in Brisbane on the evening of 6th November. On the hearing of the motion, counsel for the respondent read an affidavit of the constable who served the summons, which stated that at about 1 p.m. on Monday, 6th November, 1922, he served the appellant with the summons at Witta; that he at the same time correctly read to the appellant the contents of the summons, and particularly drew his attention to the short notice thereby given to him, and told him that if he intended defending the summons, the best thing he could do would be to appear in Brisbane on Wednesday, 8th November, and ask for an adjournment; and that the appellant said he was not going down, and he intended clearing out to New South Wales. Stanley moved the order absolute. The affidavit is not conclusive evidence of due service. He referred to The Justices |