Shand J. WHITE v. WHITE. the solicitor himself, but that his name was signed thereto by some person, I suppose a clerk of his, who was authorised to sign it. There does not appear to me to be any substance in this objection. The last preliminary objection was that the appellant did not enter into any recognizance, and that assuming the order appealed from to be an order within the meaning of The Justices Act of 1886, s. 239 of that Act requires an appellant to enter into the recognizance therein mentioned. In my opinion this section requires a recognizance to be entered into as a condition precedent to a stay of execution under the order appealed from, but does not require it to be entered into as a condition precedent to the hearing of the appeal. See Wilson v. Stevens (1), a decision which is, I believe, in accordance with the practice which was always followed in the District Courts. And see also Bishop v. Gollagher (2). After I had over-ruled these preliminary objections, counsel for the parties addressed me on the evidence taken before the Magistrate, counsel for the appellant beginning, counsel for the respondent following, and counsel for the appellant replying. Counsel for both parties seemed to take it for granted that there was no need for a rehearing other than a rehearing on the depositions taken before the Magistrate, and it did not at the time occur to me that this might not be the correct form of procedure. After I had heard counsel and reserved judgment, a perusal of the case of Wright and Others v. Nettle and Others (3), suggested to my mind that if an order under s. 12 of the Act of 1858 was really not an order within the meaning of The Justices Act of 1886 (a question upon which I had not thought it necessary to come to any decsison when dealing with the preliminary objections), it might be necessary for me to rehear the case de novo, as if it had never been tried by the Magistrate, and without regard to the depositions taken before him. In these circumstances, counsel for the parties again appeared before me at my request, and I endeavoured to explain to them that in the event of my deciding that the procedure prescribed by s. 243 of The Justices Act of 1886 was not applicable, I might have to rehear the case de novo, and in that event would give them timely warning. I adopted this course in order to obtain counsels' assistance on a question which seemed to me to have been overlooked during (3) 1919, St. R. Qd. 300, at p (1) 1899, 9 Q.L.J. N.C. 85 308. the hearing of the appeal, and also to prevent the parties from WHITE v. WHite. being taken by surprise, in the event of my considering it necessary to rehear the case de novo. I have recounted these circumstances because statements in the press represented me as deciding definitely that the case would have to be re-heard de novo. This is not the case. On the other hand, further consideration has led me to the conclusion that an order under s. 12 of the Act of 1858 is an order within the meaning of s. 237 of The Justices Act of 1886. In s. 4 of that Act, order is defined to mean "an order made upon a complaint of a breach of duty," and “ breach of duty” is defined to mean "any act or omission (not being a simple offence or a non-payment of a mere debt) upon complaint whereof justices may make an order on any person for the payment of money, or for doing or refraining from doing any other act." In my opinion the order appealed from was an order made upon the respondent's complaint that the appellant had been guilty of an act (i.e., adultery), upon complaint whereof an order might be made against the appellant requiring her to refrain from doing another act-viz., enforcing the maintenance order previously obtained by her. Or perhaps it might be put in this way-The respondent complained that the appellant was endeavouring to enforce a maintenance order under circumstances which deprived her of the right to enforce it, and if that were so, the Magistrate would be justified in ordering her to refrain from so doing. I think, therefore, that the appellant is " a person against whom an order has been made" within the meaning of s. 237 of The Justices Act of 1886, and that the procedure on appeal from that order is the procedure prescribed by s. 243 of the same Act. I come now to the merits of the case which it is, I think, my duty to investigate upon the evidence and proceedings before the Magistrate. See per Griffith C.J. in R. v. Justices of Ravenswood (1), and see Bishop v. Gollagher (2). The respondent applied to vary the maintenance order on the grounds (1) that his ability to contribute to his wife's support had materially decreased since the maintenance order was made; (2) that the appellant had other means of support; and (3) the the appellant had misconducted herself so as to make it no longer reasonable that he should contribute to her support. (1) 1903, St. R Qd. 158, at p. 161 (2) 1922, St. R. Qd. 83 Shand J. WHITE WHITE. Shand J. With regard to the first ground, the Magistrate found in favour of the appellant, and I agree with his finding. On the second ground, the Magistrate gave no specific finding, but in my opinion, on the evidence, could only have found in favour of the appellant. With regard to the third ground, the Magistrate found that "on the 13th of July last, at 1 o'clock a.m., the appellant and a man named Fitch were in bed together at the appellant's residence in Helen Street, Bulimba." He therefore decided that the respondent had substantiated the third ground on which he was relying, and on that ground-but on that ground alone-was entitled to the order now under appeal. Now, in my opinion, unless this last finding of the Magistrate can be supported, there is no evidence in support of the respondent's allegation that the appellant had misconducted herself. Mr. Stanley contended that even if the Magistrate's finding of fact were supported it would not justify the order made by him. I am not prepared to adopt this view of the law. If I agreed with the Magistrate's finding of fact with reference to the charge of adultery, I should be very loathe to interfere with his exercise of a discretion which would, I think, in that case be vested in him by the proviso to s. 4 of the Act of 1840; but in the view which I take of the case it is unnecessary for me to say any more on this question. For, can I agree with this finding of fact? On what evidence does it depend? Obviously, the testimony of respondent, and of the three witnesses-Brennan, Smith and Johnson. Now, on his own admissions, the respondent is not a man of such unimpeachable character as to induce a Court readily to accept his evidence on a matter in which he is deeply interested; and there can be no doubt that he was extremely anxious to get rid of all liability to contribute to the appellant's maintenance. Brennan is a private detective, and Smith and Johnson were men acting under his orders. I do not think I need repeat any of the remarks which have been so constantly made by judges with reference to the necessity of scrutinising with the utmost suspicion the evidence of private detectives and their minions. And in the present case I cannot regard the necessity for this watchfulness as in any way modified by the representations of these detectives that the respondent had made no agreement to remunerate them, and that they were giving him their services out of good will to a man who appears to have been a stranger to Shand J. them, or at any rate were leaving it in his hands to reward them WHITE v. WHITE for their services as he might think fit if such services should prove advantageous to him. When I contrast the evidence of the respondent and his witnesses with the evidence of the appellant and her witnesses, I cannot feel any doubt that the verdict should be in favour of the appellant. I have read and considered the whole of the evidence very carefully, and I disagree with the finding of the Magistrate with reference to the charge of misconduct brought against her. I find as a fact that no case of misconduct has been substantiated against her. I realize fully the responsibility which I am taking in wishing to differ on questions of fact from an experienced Magistrate, who had the advantage of hearing and seeing the witnesses in the witness box. But perhaps I have the advantage of the Magistrate in another respect. In cases recently before me in this Court I have had personal experience of this man Brennan, and can therefore, I think, appreciate better than the Magistrate was perhaps able to appreciate, the worthlessness of any testimony given by him and those acting under his orders. Had the Magistrate had the same experiences I am confident that his view of the facts would have agreed with mine. In the result, then, I think that this appeal should be allowed. I order that the Magistrate's order be set aside, and that in lieu thereof the respondent's application to have the maintenance order waived be dismissed. I also order the respondent to pay to the appellant the costs of the appeal. Solicitor for appellant: Crawford. Appeal dismissed with costs. Solicitors for respondent: McSweeny & Wilford. 1922. October 12, 16. Shand J. [IN THE FULL COURT.] EDWARDS v. HORRICAN, Ex parte HORRIGAN. Landlord and tenant-Land under Real Property Acts-Agreement for lease for five years-Lease not in prescribed form-Rent payable weekly-Possession by tenant-Effect in law of agreement-Tenancy from year to year-Equitable right to obtain registerable lease for the term. Summary ejectment-Jurisdiction of Court of Petty Sessions-- By an agreement in writing, the plaintiff's father, being registered under the Real Property Acts as the proprietor of certain lands for an estate in fee simple, agreed to let them to the defendant at the rent of 18s. per week, such tenancy to commence on 21st of July, 1919, and to continue for the term of five years certain, and in the event of its continuing beyond the expiration of the said term of five years to be thereafter determinable at any time upon one month's previous notice being given in writing by either party to the other. The rent was payable on Monday in each week during the tenancy. The defendant entered into possession under this agreement, and remained in possession thereunder, paid the rent reserved thereby to the plaintiff's father during his life, and after his death to the plaintiff as his successor in title to the reversion. On 10th July, 1922, the plaintiff served a notice on the defendant requiring him to quit the premises on 21st August, on the ground that he had failed to fulfil the conditions of the said tenancy as set out in the agreement ." The defendant refused to comply with the notice, and paid rent up to 21st August, which was accepted. The plaintiff then made a complaint under The Summary Ejectment Act of 1867, alleging that the tenancy had been determined by the notice to quit, and by breach of the covenant to repair and to refrain from committing a nuisance. The Police Magistrate found that the tenancy was a weekly tenancy, and adjudged the plaintiff to be entitled to possession, and ordered a warrant to issue under the statute for the purpose of securing possession of the land to the plaintiff. Held, that the tenancy could not be regarded as a weekly tenancy; that at the least a tenancy from year to year had been created, and that the Police Magistrate had no jurisdiction to make the order. Quare as to the equitable rights of the defendant under the agreement. ORDER NISI FOR QUASHING ORDER. The appellant was the occupier of certain land (with a house erected thereon), registered under the Real Property Acts, and |