he owed the money; but on the other hand there was distinct evidence that he had spoken of it as the account in Nilan's estate, and expressed his belief that the estate would be able to pay it, thereby showing that the transaction was between Mrs. Nilan and the Bank, which was supported by the fact that Mrs. Nilan left her deeds with the Bank as security, and the origin of the account was the bill of exchange for £500 which Mr. Nairne lent to Mrs. Nilan, the defendant only undertaking to sign the cheques because of a difficulty which arose on account of her being unable to write her name. If it was attempted to make the defendant liable upon the bill, then it would be as surety, and not as primary debtor. It was for the jury-not the Court-to say to whom the credit was given, and he submitted the Court would not disturb the verdict unless it was shown to be very strongly against the evidence. (Allaway v. Bennett, 6 Jurist, N.S., 347; Swain v. Hall, 3 Wilson's Reps., p. 45.)

HANSON, C.J.-It appears to me the whole security of banking transactions would be at an end if a person were to be allowed to open an account in his own name and draw cheques, and then upon such evidence deny his liability.

GWYNNE, J.—I also put it on the trial that the defendant could not by a mere verbal agreement alter the effect of the documentary evidence which was produced.

HANSON, C.J.-It seems that an account was opened by Mullen in his own name, but headed "Mullen, Nilan's Estate," to distinguish it from his own private account, and I look upon that in the same way as if a man opens an account, “A, B, or C," to distinguish it from another. I do not say that no evidence might be given to show that he was not liable, but the evidence was such that the Jury ought not upon that alone to have found a verdict for the defendant. I think, therefore, there should be a new trial; the costs to abide the event.

BOOTHBY, J.—I am of opinion there should be a new trial, although, supposing the defence to be fully developed, the ultimate result might be a verdict for the defendant. Still there is so much doubt that I think it ought to be settled.

Rule absolute.

DECEMBER 19, 1866.

J. M. SOLOMON V. OCHILTREE.

BAIL TO THE ACTION.-Rule nisi to cancel bailpiece and to discharge defendant- The cause not tried-Rule discharged.

THIS was an action brought by the consignee against the captain of a ship to recover damages for not delivering merchandise in good order and condition, according to bill of lading. The defendant had been arrested upon a writ of capias, and given bail to the action. The cause was set down for trial, but previous to its being called on the record was withdrawn.

A rule nisi was subsequently obtained by the defendant to show cause why the bailpiece should not be cancelled, and the defendant discharged from the writ of capias.

Stow, Q.C., for plaintiff now showed cause. The defendant had no right to ask to have the bailpiece removed; the application could only be made by the bail themselves; and therefore the only question was whether there was anything to entitle the defendant to his discharge from the writ of capias. I submit that in the absence of any precedent, the Court would never discharge a defendant from a writ of capias except from either irregularity or determination of the cause. If the defendant wished to hasten the trial he could have had the case carried down for trial by proviso. The plaintiff had very good reason for exercising the discretion given him by postponing the trial, inasmuch as at the September sittings a material witness on his behalf was unable to be procured; and it was not likely he would have consented to its going before a Jury when in a similar though not identical case of E. Solomon v. Ochiltree a verdict had been given for the defendant. The Court would never consent to enter into the merits of the case upon affidavit.-Orsley v. Walstaff.

The Attorney-General, in support of the rule, quoted the case of Pegler and Another v. Hesling, 5 Dowl. and L. The case cited by Mr. Stow was inapplicable, as it was a decision under the old Statute of George. In reply to the Court-The circumstances of the case had been entirely changed since the verdict in E. Solomon against the same defendant, and the Court if now applied to would not issue a capias.

GWYNNE, J.-Although I agreed with the verdict in that case I must consider the present motion just the same as if the other cause had not been tried.

HANSON, C.J.-It seems to me there are no grounds for the application, and the rule must be discharged.

GWYNNE, J., concurred.

BOOTHBY, J.—I, as a single Judge, would not have held the defendant to bail. The defendant could be examined before he left, and if the plaintiff got a verdict he could follow him to any part of the world to enforce it.

Rule discharged.

DECEMBER 19, 1866.

BANBURY V. TREMAINE.

LOCAL COURT-Appeal-Certiorari.

THIS was an action tried in the Local Court of Kapunda, when judgment was given for the plaintiff. The defendant gave notice of appeal to this Court. Before the time of appealing had expired, plaintiff issued a writ of certiorari, and removed the judgment into this Court. A rule nisi was obtained by the defendant to quash the certiorari, on the ground that the period for appealing had not expired.

Palmer, for defendant, now moved to make the rule absolute.

Stow, Q.C., showed cause. As the sum involved was under £30, there was no appeal, and therefore I do not understand the grounds of the motion.

Palmer, in reply-The Local Courts Act provided for appeals on points of law to the Supreme Court, and on points of fact to the Special Magistrate. In the present case the certiorari had been issued before the time of appeal had expired.

G

HANSON, C.J.-The question involved is a very important one, namely, whether the judgment of the Local Court could be considered by the Supreme Court before the time for moving for a new trial had expired. There might have been facts which the Special Magistrate was not aware of, and which would form a ground for a new trial, but if a certiorari had been granted he would be precluded from doing so.

Stow-If that is the point, the terms of the rule should be amended, and time allowed me to answer.

Palmer-The rule could not be drawn up on any grounds except those on which it had been. The question must arise out of them.

Cur. adv. vult.

HANSON, C.J.-The Court is of opinion that there should be no rule in either this case or in that of Benham v. Tremaine. The intention of the Act was to render the decision of the Magistrate final in all matters under £30, unless upon a review of all the circumstances he thought it right to reserve a point for the decision of the Supreme Court.

BOOTHBY, J.-I think an opportunity ought to be allowed to show facts which might prove that the discretion of the Magistrate had been improperly exercised.

Rule discharged.

NOTE. In the case of Benham v. Tremaine the circumstances were similar, and the rule was discharged upon the same grounds,

DECEMBER 20, 1866.

EVANS V. THOMAS.

PROHIBITION-Maintenance of deserted children, under Act No. 11, 6th Victoria, 1843—Paternity, proof of―Jurisdiction of Magistrate—Prohibition granted by BOOTHBY, J., and GWYNNE, J.-HANSON, C.J., dissentiente.

On the 9th May, 1866, an information was laid by Mary Evans, charging defendant that he being the father of an illegitimate female child of the complainant, under the age of ten years, did desert such child, leaving her

The information was heard

without proper support and maintenance. before J. S. Browne, the Special Magistrate of Kapunda, on the 12th May, and an order was thereupon made by him for payment by the defendant to the said Mary Evans of 6s. per week, and in default of payment, to be levied by distress; and in the event of no sufficient distress, then that defendant should be imprisoned in the common Gaol for seven days.

Palmer, for defendant, on the 27th August last, obtained a rule nisi for a prohibition to stay the Magistrate from enforcing the order made by him, and now moved to make the rule absolute.

It was necessary before an order could be made for maintenance that the defendant should have been adjudicated father of the child, as until then he was under no legal obligation to support it, and that the order made did not adjudicate the defendant the father of the child, but merely ordered him to pay for its support.

Stow, Q.C., showed cause. It was impossible that there could be any prior adjudication that the defendant was the father, as a summons for maintenance was the only way in which the matter could be brought before the Magistrate; and in reference to the second point, the Court he apprehended, would not grant a prohibition on account of a new error in form of an order in a matter in which the Magistrate had jurisdiction, and which could be altered at any time. The evidence of the woman herself and other material circumstances were sufficient to prove the paternity of the defendant, although it had not been, as it should properly have been, so adjudicated in the order.

Palmer, in reply-As the order contained no adjudication of paternity on the face of it, it was not such as a Magistrate could enforce, and that therefore, the Magistrate having acted in excess of jurisdiction, upon the authority of King v. Pocock, Sup. Court Rep. p. 71, a prohibition would lie.

Cur. adv. vult.

GWYNNE, J.-In the matter of an order by J. S. Browne, S.M., for the support of the illegitimate child of Mary Evans, a rule had been obtained to show cause why a prohibition should not issue. The proceedings, he presumed, were under the local Statute, No. 11, 6th Vict., intituled "An