QUEENSLAND WEEKLY NOTES. FEBRUARY 10, 1905. Watson (Solicitor), moved the order absolute, and contended that garnishee proceedings could be taken, as the Commissioner was a corporation sole capable of suing and being sued, and money in his hands should be regarded as liable to any process which could be made against it if held by a private individual, and that the fact of the Commissioner being a corporation sole distinguished the cases decided in New South Wales. He cited: The Crown Remedies Act of 1874, s. 16; Compbell v. The Commississioner of Railways (Brisbane Courier, 2nd October, 1902), Davis v. Higgins (4 Q.L.J. 53), Wilson & Co. v. Lydon (1903 Q.W.N. 58). Real J. discharged the order nisi, but without costs. DREW V. MIDDLETON AND THE COMMISSIONER FOR RAILWAYS, 11th January, 1905, REAL J. IN CHAMBERS. Counsel: Stumm. Solicitors: Crown Solicitor; Watson & Watson. "last 4. Will-Codicil-Revocation-Codicil professing in form to be a MOTION FOR PROBATE. M. Luck, a married woman, died at Gatton, in the State of Queensland, on 8th November, 1904, having duly made a will and codicil thereto, dated respectively 2nd December, 1901, and 6th November, 1904. She had real and personal estate in Queensland. Two persons were appointed executors and trustees by the will, to whom all property was given on trust to convert into money, and to hold for her children by her past marriage in equal shares. The codicil was in the following form: "In this my last will and testament I bequeath to my husband the sum of £60, and to my youngest child, Agnes Luck, the sum of £50, and all my property other than the above to be disposed according to my wish as explained in my will previously made, and in the possession of Mr. C. Hooper, solicitor." Application was made to the Registrar for a grant of probate of the will and codicil, which he referred to the Court under O. LXXI., r. 7. Fletcher (solicitor), moved the grant. The description of the codicil as the last will is not alone sufficient to effect a revocation of the will. Plenty v. West (16 Beav. 175), Lemage v. Goodban (L.R. 1 P. & D. 57), In the Goods of Morgan (L.R. 1 P. & D. 323), Cutto v. Gilbert (9 Moo. P.C. 131); the codicil shows clearly an absence of any intention to revoke the will. Real J., ordered probate be granted of the will and codicil. In re Luck, 18th January, 1905, REAL J, IN CHAMBERS. Solicitors: Morris & Fletcher, for C. W. Hooper, Laidley. MARCH 17, 1905. QUEENSLAND WEEKLY NOTES. 5. Practice-Writ of capias ad respondendum-Writ of summons— Service-On Sunday-O. LXXVIII., rr. 5-7-O. XCIII., r. 15— The Common Law Process Act of 1867 (31 Vic., No. 4), ss. 23, 48, 49. SUMMONS. In an action brought by the plaintiff, judgment was obtained in default of the defendant's appearance. This was an application for an order directing the payment out of Court of money which had been deposited by the defendant, when arrested under a writ of ca. re., with the Sheriff, by whom it had been paid into Court to the credit of the action (O. LXXVIII., r. 7). The question was raised whether the writ of summons in the action-which in proceedings for the arrest of absconding debtors must be served on the defendant at the time of his arrest (O. LXXVIII., r. 5)—could be served on a Sunday. The Registrar pointed out that the plaintiff's judgment was obtained in default of appearance by the defendant, and was founded on a writ of summons which was served on a Sunday, and referrred to O. XCIII.,.r. 15, which provided that no instrument except a warrant in an Admiralty action shall be served on a Sunday, Good Friday, or Christmas Day. Fletcher (solicitor), for the plaintiff The defendant was arrested under a writ of ca. re., issued under The Common Law Process Act of 1867, ss. 48 and 49, and the writ was executed on a Sunday by virtue of s. 23. With the writ of ca. re. the writ of summons in the action was served upon the defendant at the time of his arrest, as required by O. LXXVIII, r. 5. Although a writ of summons is not specifically within the exceptions mentioned in O. XCIII., r. 15, yet the joint effect of O. LXXVIII., r. 5, and s. 23 of The Common Law Process Act of 1867, renders it lawful to effect service of a writ of summons on a Sunday under the circumstances of this case. If it were otherwise, a plaintiff issuing and acting under a writ of ca. re. would, in some cases, be compelled to defer its execution, and delay might be caused allowing the defendant to escape. COOPER C.J. expressed his opinion that the proceedings were regular, and ordered the money in Court to be paid out to the plaintiff. DOYLE v. SAUNDERS, 14th December, 1904, COOPER C.J. IN CHAMBERS. Solicitors: 6. Income tax-Assessment—Pearl shell-Collected outside Queensland territory-Brought into Queensland for exportation—“ Business carried on in Queensland "—The Income Tax Act of 1902 (2 Edw. VII., No. 10), ss. 3, 13. The taxpayer was a member of a firm which carried on the business of pearlshelling, and collected pearl and pearl shells from the ocean bed at places outside the territorial waters of Queensland. The shell was prepared and packed for transport on the fishing boats at sea, thence carried to Thursday Island, in Queensland, and there examined by an inspector under The Pearl-Shell and Bêche.de-Mer Fishery Act Amendment Act of 1891. The shell was then exported to markets abroad, and the money derived from the sale was remitted to a bank in Queensland, where the principal banking business of the firm was transacted, and used in the business, or divided amongst the members. Held, that as the income was earned in or derived from a place outside Queensland by the cperations of a business not carried on in Queensland, the taxpayer was not liable to pay income tax assessed on the amount of his income from the business. But held that as he resided in Queensland, he was liable to pay 10s. IN THE MATTER OF THE INCOME TAX ACT OF 1902, 28th October, 4th November, 1904, FULL COURT (COOPER C.J., REAL AND POWER JJ.) Counsel: Feez; Lukin. Solicitors: The Crown Solicitor; Nicol Robinson & Fox. 7. Income tax-Assessment-Deductions-Grazier's income-Increase of stock during year-Decrease of stock by death-Profits-The Income Tax Act of 1902 (2 Edw. VII., No. 10), 88. 3, 20. During the year 1903 the flocks and herds of a grazier, carrying on business in Queensland, were considerably augmented in numbers by reason of the natural increase of the sheep and cattle. This progeny had not been sold, but was depasturing on the grazier's lands. Held, that the increase was not income within the meaning of The Income Tax Act of 1902. IN THE MATTER OF THE INCOME TAX ACT OF 1902 (No. 2), 29th and 30th October, 4th November, 1904, FULL COURT (COOPER C.J., REAL AND POWER JJ.) Counsel: Lilley, Stumm; Feez. Solicitors: Fitzgerald & Power; The Crown Solicitor. 8. Probate and Administration-Will of married woman-Executed prior to the enactment of The Married Women's Property Act, 1890 (54 Vic., No. 9)-Not acknowledged-The Intestacy Act of 1877 (41 Vic., No. 24), s. 52. REFERENCE BY REGISTRAR. A married woman made a will before The Married Women's Property Act, 1890, came into operation; the will was not acknowledged by her as required by s. 52 of The Intestacy Act of 1877. She died a widow leaving two sons, her only next-of-kin. By the will one of the sons was appointed executor; certain specific lands (which in value constituted one-half of the real estate) were devised to one son, and the remaining realty was devised to the other son. The residue of her estate was given to the sons in equal shares. The son appointed executor by the will applied for a grant of probate, and the Registrar, doubting whether the will could be considered valid, referred the matter to the Judge in Chambers. He mentioned the case of In re McCann, decided by the Full Court (Brisbane Courier, 9th June, 1899), where letters of administration, with the will annexed, were granted to the husband of a deceased married woman under circumstances somewhat similar to the present case. COOPER C.J. pointed out that the disposition of the property by the terms of the will was identical with the di-position which would, by the operation of The Intestacy Act, be made in the event of the will being declared invalid, and under these special circumstances he ordered probate to issue. In re ROEMERMANN, 15th February, 1905, COOPER C.J. IN CHAMBERS. Solicitors: King & Rutledge. MARCH 17, 1905. QUEENSLAND WEEKLY NOTES. 9. Crown lands-Grant of-" For cricket and other athletic sports and for no other purposes whatsoever "-Power of trustees to lease or license-Horse racing-Breach of trust-Interference with purposes for which grant made-Temporary user-To raise revenue-Injunction-Public Parks Act of 1854 (18 Vic., No. 33)-The Trustees of Public Lands Act of 1869 (33 Vic., No. 2) The Crown Lands Act of 1884 (48 Vic., No. 28). Certain land was granted to trustees upon trust as a reserve for cricket and other athletic sports, and for no other purposes whatever. By an agreement made between the trustees and S., the trustees granted to S., for the term of three years, permission to use the reserve at certain specified times, on certain conditions, for the purposes of bicycle racing and other lawful sports. Under the management of S. bicycle races and horse races were held on the reserve. In an action claiming a declaration and for an injunction, the trustees contended that the use by S. did not in any way conflict with the proper and complete performance of the trust, and that their permission for such a use of the reserve was conducive to such performance, as it was necessary to raise an income sufficient to enable them to keep the reserve in a fit state for cricket and other athletic sports and to pay interest on a mortgage. Subsequently to the commencement of the action, the terms of the agreement were approved by the Governor-in-Council. Held (REAL J.), that the permission to use the reserve for horse racing and bicycle racing constituted a technical breach of trust, and ordered that a declaration of right issue as claimed by the plaintiff, but that the injunction be refused without prejudice to any application for an injunction to be made after the determination of the agreement. Quare, whether the performance of the terms of an agreement sanctioned by the Governor-in-Council can be restrained by injunction. On appeal (Chubb and Power JJ., Cooper C.J., Diss.), the decision of Real J. was affirmed. THE ATTORNEY-GENERAL ON THE RELATION OF JOHN CURRIE v. DOWN AND OTHERS, 8th, 9th and 13th December, 1904, FULL COURT (Cooper C.J., CHUBB AND POWER JJ.). Counsel: Lukin, O'Sullivan; Feez, Stumm. Solicitors: Roberts & Roberts; Leeper & Biggs. 10. Insolvency-Liquidation by arrangement --Notice to creditors of first general meeting-Registration of special resolutions-Attendance on registration of special resolutions of creditors not notified of first general meeting-The Insolvency Act of 1874 (38 Vic., No. 5), 8. 202-Insolvency Rules, 190, 192, 218, 229. APPLICATION ex parte under O. LXXXVII., r. 28. In pursuance of a request under Rule 190 of the General Rules in Insolvency of 1st October, 1874, notices of a first general meeting of creditors were issued by the Registrar to the creditors whose names appeared in the list of creditors attached to the request, which followed Form No. 92 in the schedule to the above rules. The transactions of the debtor were numerous. He was carrying out a contract for the supply of railway sleepers, and a preliminary investigation of his affairs by the receiver appointed under Rule 194, disclosed the fact that there were 38 small creditors in respect of moneys due for cutting sleepers, whose names did not appear on the list of creditors to whom notices of the meeting had been sent. The total amount due to these creditors was £180, and all but four of them QUEENSLAND WEEKLY NOTES. MARCH 17, 1905. were for sums under £10. Most, if not all of them, had been paid by cheques 1. That a large number of the creditors have not been notified of the first 2. That one of the principal creditors present at the meeting refused to sign 3. That the statutory majority would be absent if these creditors were present and voted against the resolution. .He also pointed out that resolution No. 5 was not a liquidating resolution, and in any event it was incapable of registration. An affidavit was then filed by the creditor who had refused to sign the resolutions because of the inclusion of No. 5, assenting to the resolutions as passed except No. 5, which raised the amount represented by assenting creditors present at the meeting to £853, which was in excess of the necessary three-fourths majority in value of the claims of those present at the meeting, together with the claims of those who had not received notice of the meeting; and a special application to Cooper C.J. for a direction to the Registrar to register the resolutions was made forthwith. Stumm read the affidavit filed by the creditor refusing to sign resolution No. 5, but expressing assent to all the others, and contended that as creditors representing the statutory majority in number, and three-fourths majority in value, were present at the meeting, even if the 38 creditors who had not been notified were deemed to have been present and to have dissented from the resolutions, registration of the resolutions should be ordered. There was nothing underhand or fraudulent. The debtor had made the fullest disclosure of his creditors, but unfortunately he had not been in a position to do so when the request and list of creditors were filed. The omission to give notice to creditors did not vitiate the liquidation. Elmslie v. Corrie (4 Q.B.D. 219). It was not like composition, where the rule was much stricter. And if there is fraud, the registration of the special resolution can be set aside. The Insolvency Act of 1874, s. 3. He referred to Robson, Bankruptcy, 4th Ed., p. 781, and Salaman's Practice on Liquidation, p. 121, where the practice laid down was that creditors who had not been notified of the first general meeting were entitled to be present on the registration of the resolutions; and if His Honour considered that, under the circumstances, it was necessary that the 38 creditors should be cited, he asked for a direction to the Registrar to register the resolutions upon proof that they had received notice to attend the registration. The Deputy Registrar was present, and informed His Honour that the practice, as laid down in Salaman, was followed in the office. COOPER C.J.: The Deputy Registrar refused to register these resolutions on the facts before him. It now appears that there were, as a fact, the required majority present at the meeting, even allowing for all the 38 creditors as being present and having voted against the resolutions. But it seems, from the authorities cited, that these creditors ought to be given an opportunity of attending the registration of the resolutions. I direct the Deputy Registrar to register the resolutions upon proof being given to him of notice to attend the registration having been sent by prepaid registered letter to each of the 38 creditors. In re NUGENT, COOPER C J. IN CHAMBERS, 27 February, 1905. Counsel: Stumm. Solicitors: Thynne & Macartney. |