APRIL 14. 1905. QUEENSLAND WEEKLY NOTES. 11. District Court Practice-Writ-Service-Jurisdiction-Contract Place of payment-The District Courts Act, 1891 (55 Vic., No. 83), s. 60. This was an application for an order setting aside the service of a summons in an action commenced in the District Court at Brisbane. The plaintiff, who resided in Brisbane, and acted through an agent, instructed the defendant who resided at Maryborough, to sell a boat which at that time was at Maryborough, Brisbane and Maryborough are situated in different District Court districts. The defendant sold the boat, but did not remit the proceeds to the plaintiff. Thereupon the plaintiff commenced this action in the District Court at Brisbane for money had and received. On the summons being served on the defendant, he made this application to set aside the service on the ground that the Brisbane Court had no jurisdiction under s. 60, of the District Court Act, 1891, to try the case. MANSFIELD D.C.J. held on the authorities of Rein v. Stein (1892), 1 Q.B. 753, and Robey v. Snaefell Mining Co. (20 Q.B.D. 152), that in the absence of a special stipulation, or a course of practice to the contrary, the place for payment was Brisbane, and that non-payment was a breach of an implied promise to pay by the defendant, and was a "material point" in the cause of action, within s. 60 (2) of the District Court Act, and that therefore the Brisbane Court had jurisdiction to try the case. Application dismissed. CLARKE V. CLARKE, 17th February, 1905, MANSFIELD D.C.J., ÎN CHAMBERS. Solicitors: Watson & Watson; O'Sullivan & Scott. 12. Probate-Will-Testamentary capacity-Due execution-Reading over Knowledge Approval Suspicious circumstances surrounding preparation and execution of the will-Presumption of law-Findings of jury-Appeal-New trial-Service of noticeSecurity for costs of appeal-O. LXX., rr. 4, 12, 23. Instructions for a will were given by C. to T. and by T. to a solicitor. The solicitor having prepared a will from the instructions so given, read it over to the testatrix, who was dying, and able merely to assent to the questions asked her by the solicitor. T. was appointed an executrix. C. was an intemperate person, and had previously given different instructions to other persons, and had previously executed a will. In an action claiming probate in solemn form of the will, the jury found in favour of the will. On appeal, held, that there was evidence to support the findings of the jury, and that probate of the will should be granted. Circumstances under which a new trial for want of proper direction will be granted considered Guardhouse v, Blackburn (1866, L.R. 1 P. & D. 109), Fulton v. Andrew (1875, L.R. 7 H.L. 448), Tyrell v. Painton ([1894] P. 151), Wilson v. Bassil ([1903] P. 239), applied. BENJAMIN AND TWEEDIE v. STEWART, 25th, 26th, and 27th October, 4th November, FULL COURT (COOPER C.J., REAL AND POWER JJ.) Counsel: Lukin, Henchman; Feez, Stumm; Lilley. Solicitors: Leeper & Biggs, for Leeper & Bergin, Warick; Flower & Hart for Flower & Brennan, Warwick. 13. Income tax-Grazier's income-Cattle purchased and sold during the year-Cattle purchased and added to existing herds-Increase in value of live stock on hand-The Income Tax Act of 1902 (2 Edw. VII., No. 10), ss. 13, 20-Regulations of 18th December, 1903, Nos. 28, 29, 30. A grazier, in the course of his business, purchased a number of cattle during the year 1903. He sold some of them during the same year, and kept the remainder on his station. Held, that the money paid in purchasing the cattle was an outgoing to be allowed as a deduction from the gross amount of the grazier's income for the year. Held, also, that the cost price of cattle purchased during the year and remaining unsold should be added to the grazier's stock account. IN THE MATTER OF THE INCOME TAX ACT OF 1902 (No. 3), 14th February, 1905, FULL COURT (COOPER C.J., REAL J.) Counsel: Stumm, Hobbs; Lilley. Solicitors: Foxton & Hobbs; The Crown Solicitor. 14. District Court-Mittimus-Action for debt-Commenced in Supreme Court-Application for removal to District Court-Onus of proof— The District Courts Act, 1891 (55 Vic., No. 33), s. 129. SUMMONS. This was a summons issued in an action commenced in the Supreme Court by the plaintiff, on a specially indorsed writ, claiming the price of goods sold and delivered by him to the defendant. The action was one which might have been brought in the District Court without the consent of the defendant. The application on this summons was made on behalf of the defendant, under The District Courts Act, 1891, s. 129, and asked that the action be remitted for trial to the next sittings of the District Court at Brisbane, which were fixed for the 27th day of March, 1905. The Civil Sittings of the Supreme Court were fixed for the following month. Immediately on receiving the summons the plaintiff's solicitor interviewed the solicitor for the defendant, and asked him to accept short service of a summons for final judgment to be heard on the day appointed for hearing of the application for mittimus, but his request was refused. Lukin, for the plaintiff, read an affidavit of the plaintiff's solicitor, stating that in his opinion there was no defence to the action, as the goods had been delivered, and that he believed the application was made to gain time, and contended that if the matter was one that could be disposed of on an application for summary judgment, unnecessary delay wouid be caused by a trial in the District Court," and costs would be incurred, and referred to Sam Long v. McArthur (11 Q.L.J. 15), and Jang Chew v. Ah Coy (1903 Q. W.N. 47.) King (solicitor) for the defendant. REAL J., expressed the opinion that if the circumstances clearly showed that the case could be disposed of on an application for summary judgment under 0. XVIII., the case would be one in which an order for the removal to the District Court would probably cause both unnecessary delay and increased costs. The effect of s. 129 of The District Courts Act, 1891, was, that when a defendant demonstrated that the action could have been brought without his consent in the District Court, he was entitled to get an order remitting the action to that Court, unless the plaintiff showed facts establishing one of the exceptions stated in the section. The burden of proof was on the party wishing to oppose the order for mittimus. He adjourned the application to enable the defendant to file affidavits. APRIL 14, 1905. QUEENSLAND WEEKLY NOTES. When the application came on again after the adjournment, an affidavit by the defendant was read, in which he swore that there had been late delivery of the goods, and that a large number of them were inferior in quality to the sample on which the contract for sale had been made. On this the plaintiff consented to a mittimus, and an order was accordingly made remitting the action to the District Court for trial. DUNCANSON . PARRY, 8th March, 1905, REAL J. IN CHAMBERS. Counsel: Lukin. Solicitors: Biggs; King & Rutledge. 15. Company-Winding up-Surplus assets-Distribution-Articles. of Association. The articles of association of a company with a nominal capital of £33,000 in £1 shares, provided that if the company should be wound up and the surplus assets be insufficient to repay the whole of the paid-up capital, such surplus assets should be distributed so that, as nearly as might be, the losses should be borne by the members in proportion to the capital paid up, or which ought to have been paid up, on the shares held by them respectively at the commencement of the winding up. They also provided that subject to the rights of members entitled to shares issued on special conditions the profits of the company should belong to the members in proportion to the amount paid up on the shares held by them respectively. Of the 33,000 shares 3000 were paid up, and on the balance not more than 13s. 8d. per share, or £20,500, had been paid. In the winding up of the company there was a surplus of £2500 after paying debts and expenses. Held, (Real J.) that the surplus should be distributed so that the losses should be borne by the holders of fully-paid shares in the proportion that 3000 bears to 23,500, and by the holders of partially-paid shares in the proportion that 20,500 bears to 23,500. On appeal (Cooper C.J., Chubb J., Mansfield A.J.), held, reversing Real J., that all the shareholders should first be put on an equality by making a call (actual or in account) on the 30,000 shares sufficient to equalise, with the surplus in hand, the capital account, and that the amount so raised, together with the surplus, should then be distributed equally amongst all the shareholders. In re THE ROCKHAMPTON PROSPECTING COMPANY, LIMITED, 6th and 13th December, 1904, FULL Court (Cooper C.J., CHUBB J., MANSFIELD A.J.). Counsel; Shand; Lilley; Douglas. Solicitors: Rees R. & Sydney Jones, 16. Bill of sale-Registration-Omission to renew registrationVested right of execution creditor-The Bills of Sale Act, 1891 (55 Vic., No. 23), ss. 8, 17—The Bills of Sale Act Amendment Act of 1896 (60 Vic., No. 11), s. 3. INTERPLEADER SUMMONS. On 30th April, 1900, the defendant gave a bill of sale over his household furniture, stock-in-trade, and other chattels to one Mary Simpson, by whom it was assigned on the same day to J. C. Perry. The bill of sale was duly registered. By inadvertence, the registration was not renewed within the time specified by s. 3 of The Bills of Sale Act, 1896, but on 19th June, 1904, an order was made by Real J. by which the time for renewal of registration was extended until 2nd July, 1904, without prejudice to the rights of any other parties acquired prior to the actual renewal of the registration." In pursuance of this order registration was duly renewed on 29th June, 1904. Between 19th August, 66 1903, and the date of the renewal, the plaintiffs, not knowing of the existence of the bill of sale, supplied the defendant with goods to the value of £69 13s., of which they were paid £40. They also supplied goods after the date of renewal to the value of £13 13s. 9d. In November, 1904, the plaintiffs brought an action in the District Court against the defendant for the price of the goods sold and delivered, and on the defendant neglecting to enter an appearance, judgment was signed, and execution issued. On the bailiff levying, under the warrant, J. C. Perry claimed as assignee under the bill of sale, and this interpleader summons was thereupon issued. Lilley, for the plaintiffs, referred to The Bills of Sale Act of 1891, ss. 8, 17, and The Bills of Sale Act Amendment Act of 1896, s. 3, and contended that the plaintiff had acquired a vested right against the goods comprised in the bill of sale for the amount of their debt, or, at any rate, for the amount of the debt incurred during the time the bill of sale was not registered, for, during that time, it was "inoperative as to the chattels comprised in it," and cited In re Parsons, Ex parte Furber ([1893] 2 Q.B. 122), Crew v. Cummings (21 Q.B.D. 420), and In re Parke (13 L.R. (Ireland) 85). Lukin, for the claimant: At the time the bailiff seized these goods they were subject to a valid bill of sale, for renewal of the bill of sale had then been registered. The plaintiffs had acquired no rights which would defeat the security given to the claimant by the bill of sale. He cited Hough v. Windus (12 Q.B.D. 224), Starey v. Graham ([1899] 1 Q. B. 406), and In re Chaffers (15 Q.B.D. 467). MANSFIELD D.C.J. gave judgment for the claimant, with costs. THOS. BROWN & SONS, LTD. v. GOODWIN, PERRY (CLAIMANT), 3rd February, 1905, DISTRICT COURT, BRISBANE. Counsel: Lilley, Lukin. Solicitors: V. Drury, Atthow & McGregor. 17. Probate and administration-Re-seal-Grant made by Supreme Court of Victoria-" Copy thereof certified as correct"—Form of certificate-The British Probates Act, 1898 (62 Vic., No. 10), 88. 3. 4. REFERENCE BY REGISTRAR, An application was made to the Registrar by the lawfully authorised attorney in Queensland of the executors of the will of J. W., to whom probate had been granted by the Supreme Court of Victoria, for a re-seal of the grant of probate. J. W., at the time of his death, was domiciled in Victoria. For the purposes of the application a copy of the probate certified as correct by the Master in Equity of the Supreme Court of Victoria was deposited in the Registry. This certificate did not follow the form usually required by the Registrar, in that it did not show that the officer making the certificate had the authority of the Court granting the probate attested by the seal of that Court, or that the certificate was given for the purposes of The British Probates Act, 1898. The Registrar thereupon referred the matter to Cooper C.J. in Chambers, who held that the certificate in the present case was sufficient, and ordered the probate to be re-sealed, but stated that practitioners should, whenever possible, obtain certificates in the form required by the Registrar. In re WHITTINGHAM, 15th February, 1905, COOPER C. J. IN CHAMBERS. Solicitors: Chambers & McNab. In 1901 the plaintiff and defendant went through the form of marriage at Brisbane, and there lived as man and wife until July, 1902, when the defendant left for Scotland on a visit. She never returned to Queensland, and soon the plaintiff lost all trace of her. He instituted inquiries, and discovered that she had previously been married in Scotland on 5th June, 1896, to a domiciled Scotchman. In January, 1905, he commenced an action in the Supreme Court for a declaration of nullity of marriage. A notice indorsed on the writ of summons showed that it was intended to serve the writ out of the jurisdiction, but the indorsement of claim was not in such a form as to show that the subject matter of the action came within the provisions of O. XI., r. 1 (5). Lukin, for the applicant: The domicil of the defendant follows that of her first husband, and the case does not come within O. XI., r. 1 (5). The plaintiff's right to relief is however undoubted (The Matrimonial Causes Jurisdiction Act of 1864, ss. 37, 38; Roberts v. Brennan, [1902] P. 143). Provision is made in the preamble to the Rules of 1900 for procedure in such a case (Wilson & Graham, p. 19), and the plaintiff asks for directions for service under that provision. POWER J. granted leave to serve the petition and the writ of summons in the action out of the jurisdiction, and directed that such service be effected in the same manner as if the defendant were domiciled within the jurisdiction, notwithstanding that the writ of summons did not show by its indorsement that the subject matter of the action came within the provisions of O. XI., r. 1 (5); and further directed that where applicable the procedure prescribed by O. X. be followed. MORGAN V. MACDONALD (FALSELY CALLED MORGAN), 20th March, 1905, POWER J. IN 19. By-laws of Shire Council-Complaint-Authority to prosecute— 1920 The plaintiff preferred a complaint against the defendant, charging him with SRQ) 186 having ridden a bicycle on a footpath in contravention of a by-law of the Longreach Upon a special case stated for the opinion of the Supreme Court: Held, that under the provisions of s. 380 (2) of The Local Authorities Act of 1902, it must be presumed that the plaintiff had authority. Counsel: Ryan. MCCLURE v. CANNING, 18th February, 1905, POWER J. E.A.D. |