Kelly v Wigzell [1907] HCA 53

126 HIGH COURT '

H.C. or A. necessarily be done as a fraudulent preference, which is a ¢o 1907 clusion quite beyond the New Zealand authorities as I read them, sees With reference to the argument that the debtor here peece moved by the hope of pulling through, I would refer to the ea Wuirr. of In re Vingoe; Ex parte Viney (1), which shows that a hope of pulling through does not necessarily negative an intention to

prefer. It may be coupled with a desire to make the creditor safe in any case, and then a payment to him is a fraudule

Isaacs J.

preference.

Appeal dismissed with costs.

Solicitors, for the appellants, W. H. Wilson & Hemming. Solicitors, for the respondent, 7hynne & Macartney.

N.GE

(HIGH COURT OF AUSTRALIA.}

JEREMIAH KELLY : : 3 § 2 APPELLA CoMPLAINANT, AND SYDNEY WIGZELL - 5 é = . RESPONDENT DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

H.C. or A. Brisbane Trafic Act 1905 (Qd.), (5 Edw. VII. No. 18), see. 6—Trafic Regula —* Permitting" passengers in excess of prescribed number to travel on t

1907. eats —Duty of tramway conductor—Variance between information and evidenet Brisnaye, to place—Justices Act 1886 (Qd.), (50 Viet. No. 17), see. 48.

Det 30. In a prosecution for an offence against a by-law which prohibits conduetor from permitting any person in excess of the maximum nui prescribed to travel on a tramcar, the fact that there are more than

(1) 1 Manson, 416.

Griffith ©.

5 CLR] OF AUSTRALIA.

prescribed number actually travelling ina tramcar is sufficient evidence of H.C. oF A.

such permission on the part of the conductor.

An information ought not to be dismissed on the ground of a merely technical variauce between the information and the evidence with regard to the name of the place in which an offence is proved to have been committed.

Decision of the Full Court ; Kelly v. Wigzll, 1907 Q.W.N., 1, reversed.