QUEENSLAND WEEKLY NOTES.

MAY 19, 1905.

20. Insolvency-Debtor's petition—Adjudication-In forma pauperis. This was an application for adjudication in formâ pauperis on a debtor's petition.

Wilson (solicitor), for the debtor.

CHUBB J. This seems to be making a farce of the Insolvency Law, and yet I hardly see my way to refuse the application. The debtor, a miner, swears he is not worth £5 in the world. He has no assets, and his debts are only £19 5s. He has been out of work for the past six months, and has no present prospect of work, and, consequently, of paying his creditors out of any earnings. There is no estate to divide amongst the creditors. Having nothing wherewith to pay, there seems to be no necessity to go insolvent, but Mr. Wilson says that magistrates generally are in the habit of issuing garnishee orders against wages without mercy, and that immediately a garnishee order is issued the employers discharge the workman, as they will not be troubled with garnishee proceedings. Whether this is so or not, the point I have to decide is whether the applicant is entitled as of right to be adjudicated insolvent. In Re L. A. Ball (8 Q.L.J. 110), the Full Court, per Griffith Č.J., said "A man can take advantage of the Insolvency Act although he has no estate, and certainly a creditor can make him insolvent although he has no estate." But, by s. 46 of the Act, to support a creditor's petition, the debt due to him must not be less than £50 (when two creditors, not partners, petition together, £75; and if three or more, not partners, £100); so that in the present case the applicant could not be made insolvent by his creditors. I can find nothing in the Act which fixes the minimum amount of indebtedness necessary to support a debtor's petition. It seems, therefore, to follow that a debtor can apply for adjudication, however small the amount of his liabilities may be, and if he can apply on debts below £50, there is nothing to prevent his being adjudicated for, say, £10 or even less, unless the Court can see that its process is being abused, which I cannot see in this case. No doubt this is making a farce of the Insolvency Law, but the remedy lies with Parliament. The order of adjudication will be made.

In re COCKING, 22nd March, 1905, CHUBB J. IN CHAMBERS. Solicitor: L. C. Wilson, Townsville.

21. Jury-District Court-Hearing exceeding three days-Increased allowance to jurors.

In an action heard at the Civil Sittings of the District Court a juryman applied on the fourth day of the hearing for increased compensation.

NOEL D.C.J.: I doubt if I have the power.

Feez, as amicus curia, drew attention to s. 30 of The District Courts Act, 1891, which provided that a juror attending the District Court should be paid the same compensation and allowance for travelling expenses as a juror attending the Supreme Court. Section 2 of The Jury Act of 1898 is to the same effect. The practice in the Supreme Court as to additional payment to jurors is under s. 49 of The Jury Act of 1867. There is nothing in this s. 49, or in the Act of 1867, to

MAY 19, 1905.

QUEENSLAND WEEKLY NOTES.

show that the provisions do not apply to the District Court; but even if so, the same compensation" provided for in s. 30 of The District Courts Act, 1891, would seem to include the additional payment provided for in the Act of 1867.

NOEL D.C.J.: Yes; I have come to that conclusion. I therefore order that for this and for every subsequent day a further sum of £3 3s. be paid to the Registrar by the prevailing party, to be recovered by him as costs in the action. PHILLIPS V. TAYLOR, 14th, 15th, 16th, 17th March, 1905, NOEL D.C.J., DISTRICT COURT SITTINGS, WARWICK. Counsel: Feez; Woolcock. Solicitors: Palmer;

Bergin & Bergin.

22. Succession duty-Property and debts in two States-Property in one
State subject to mortgage-Value of property subject to mortgage
-Apportionment of debts between assets in each State respectively
-The Succession and Probate Duties Act, 1892 (56 Vic.,
No. 13), s. 4-The Succession and Probate Duties Act 1892
Amendment Act of 1895 (59 Vic., No. 28), s. 2.

W., domiciled in New South Wales, died possessed of property in New South Wales and Queensland. The property in Queensland consisted of real estate valued at £5600, subject to a mortgage debt of £6957 18s. and personal property valued at £2212 5s. Besides the mortgage debt, the testator owed £1123 in Queensland.

Held, that in estimating the gross value for succession duty of the testator's estate in Queensland, no value should be attributed to W.'s estate and interest in the mortgaged lands, and that so much only of the mortgage debt as exceeded the value of the mortgaged lands should be included amongst the debts to be deducted from the gross value of W.'s property in Queensland and New South Wales respectively in proportion to their respective values.

Henty v. The Queen ([1896] A.C. 567) and Cowley v. The Commissioners of Inland Revenue ([1899] A. C. 198), followed.

Rule of apportionment in Re Silas Harding's Will (1897, 7 Q.L.J. 126) distinguished.

In re SOLOMON WISEMAN, 1st November and 13th December, 1904, COOPER C.J. REAL AND POWER JJ. Counsel: Shand, Hobbs; Gore Jones. Solicitors: Foxton & Hobbs; The Crown Solicitor.

23. Practice-Costs-Foreclosure action-Fees-On taking accounts—

Rules of Supreme Court, Third Schedule (4), (10).

REFERENCE BY REGISTRAR.

in a foreclosure action a decree nisi was made, directing the taking of an account of the principal moneys and interest due under the mortgage. It appeared that the mortgagee was for part of the time in possession of the mortgaged property, and on many occasions acted as agent for the mortgagor in effecting sales of

QUEENSLAND WEEKLY NOTES.

MAY 19, 1905.

station produce. The accounts were filed and examined by the Registrar, who
certified as to the amount. This reference raised the question as to what fee was
payable on taking these accounts. The Registrar stated that the practice had not
been uniform in the past, but contended that the fee should be payable on the whole
amount "found to have been received" by the mortgagee [Rules of Supreme Court,
Third Schedule (4)], as in order to ascertain the amount due, the amounts received
and paid must be considered.

Hart contended that if any fee was payable it was that fixed by the Third Schedule (10); and that if clause (4) applied, the amount on which the fee was payable was limited to the amount received by the mortgagees while in possession.

COOPER C.J. held that there had been a sufficient direction to take the accounts, and that the fee payable was one shilling for every £100, or fraction of £100, of the amount found to have been received by the mortgagee, but that the mortgagee's charges as agent were not to be included.

SCOTTISH AND AUSTRALIAN INVESTMENT CO., LTD. v. MACFARLANE, 28th April, 1905, COOPER C.J. IN CHAMBERS, Counsel: Hart. Solicitors: Flower & Hart.

24 Costs-Trial by jury-New trial-Notice of, not given within
prescribed time-Jury fees-Special fees - Prevailing party-The
Jury Act of 1867 (31 Vic., No. 34), s. 49—0. XXXIX., r. 15.
REFERENCE BY REGISTRAR,

In an action tried before a judge and jury, the plaintiff recovered judgment for £169. On the fourth day of the trial the jury made application for increased fees, and the presiding judge allowed the jurors three guineas a day each on and after that day, including the ordinary fee.

The defendants appealed, and the Full Court allowed the appeal, and directed a new trial. Johansen v. City Mutual Life Assurance Society, Ltd. (1904 St. R. Qd. 288). Notice of the new trial was given, but the action was not set down within the time prescribed by O. XXXIX., r. 15, and no application had been made to extend that time. On the suggestion of the plaintiff, a sum of money was paid by the defendants to the plaintiff "in full discharge and complete settlement of all and every claim, including costs of the action and of the policy." The ordinary jury fees had been paid, and this reference involved the determination of the party liable to pay the special fees.

COOPER C.J. stated that it was his opinion that as the action then stood, the defendants were the prevailing party within the meaning of s. 49 of The Jury Act of 1867, which, he thought, related to the particular trial only; and that even if the plaintiff proceeded with the new trial, the defendants would, until that trial was determined, still be the prevailing party, and therefore considered that the defendants should pay the fees to the jurors.

JOHANSEN v. CITY MUTUAL LIFE ASSURANCE SOCIETY, LTD., 28th April, 1905, COOPER C.J. IN CHAMBERS. Counsel: Lilley. Solicitors: Crouch & Darvall.

JUNE 2, 1905.

QUEENSLAND WEEKLY NOTES.

25. Will-Construction-Intention-Implication-Gift of residue
implied-Intestacy-Right to interim income.

A testator, after making certain devises and bequests, gave the residue of his
estate to trustees upon trust to pay the income arising therefrom to K. R. for her sole
and separate use until R.R., her son, attained ten years, and thereafter to devote
half the income to the education and bringing up of R.R. in such manner as the
trustees deemed fit and proper, until R.R. attained the age of twenty-one years.
The will then provided for a gift over of the whole of the residue to K. R. in the
event of R. R. dying before he reached the age of twenty-one years, and further
provided that should both R.R. and K.R. die before R.R. attained that age the
whole of the residue should pass to his two nephews. R.R. attained the age
of twenty-one years, and at that time K.R. and the testator's nephews were
still living.

Held, that there was no intestacy as to any part of the testator's property;
that the whole of the corpus of the residue passed by implication to R.R. on his
attaining twenty-one years; and that R.R. was entitled to one half and to the
unexpended portion of the other half of the income derived from the residuary
estate during the period while R. R. was between ten and twenty-one years old.

Re ROBERT WALKER, DECEASED, KOMILLY AND ANOTHER v. ROBINSON AND OTHERS,
14th and 15th March and 2nd May, 1905, FULL COURT (COOPER C.J. AND POWER J.).
Counsel: Shand; Stumm; Hart; Henchman. Solicitors: Flower & Hart;
Nicol Robinson & Fox; W. J. Macnish, for F. C. Macnish, Mackay; Arthur H. G.
Drury.

26. Jury-Excusing juror from attendance--Delegate-Public duty-
The Jury Act of 1884 (28 Vic., No. 24), s. 6.

Real J. excused a juror from attendance for a period cf three weeks in order to
enable him to attend a conference on agricultural matters, to which he had been
appointed as a delegate, and which was being held to consider matters of great
interest to persons engaged in agricultural industries.
In re X., 8th May, 1905, REAL J. IN COURT.

27. Licensing law—Licensed victualler's license-Provisional certificate /506
— Objection — Unfitness — Evidence-Irregularity in proceedings of SR.Qd

Licensing Authority-Mandamus-The Licensing Act of 1885 (49
Vic., No. 18), ss. 33, 40, 41, 47.

MANDAMUS.

161

1910 StR90 216

At the hearing of an application for a provisional certificate under s. 33 of The Licensing Act of 1885 for premises then about to be erected, the Licensing Inspector made objections to the grant on the grounds mentioned in s. 41 (1) and 1926 SHR26. (5). Evidence was given in support of the first objection, but the Licensing Authority granted the provisional certificate in the form contained in the Seventh Schedule, No. 3, to which, however, a condition was attached in the following form:"The Bench, after retiring, granted the provisional certificate, but informed applicant that they will never give him a license. He must file notices in the Court. The premises to be completed in six months or the provisional certificate to be withdrawn." Five months afterwards the applicant applied for a licensed victualler's license for the premises which had then been completed The notices required on this application and the necessary evidence were duly given. No notice of any objection thereto was given, but at the hearing the Licensing Inspector gave oral notice that he objected to a license being granted, on the ground that the applicant was "not a fit and proper person to hold such license" The Court refused to entertain the objection, but adjourned the application, and on the adjourned hearing the application was refused for the reason that the applicant was not considered to be a fit and proper person. No evidence was given in support of the Inspector's objection other than that given at the hearing of the application for the provisional certificate. On these facts an order nisi was

obtained calling on the Licensing Authority to show cause why a writ of mandamus should not issue commanding them to hear and determine the application according to law.

Stumm, for the prosecutor, referred to In re Range (1904, St. R. Qd. 86), Atkinson v. Pinnock (2 Q.L.J. 138).

The Full Court (Real and Power JJ.), following the form adopted in In re Range (supra), made an order directing the Licensing Authority to enter an adjournment, and to proceed to hear and determine the application according to law.

Counsel:

THE KING V. LICENSING AUTHORITY FOR THE LICENSING DISTRICT OF NERANG, Ex parte BELLISS, 5th May, 1905, FULL COURT (POWER AND REAL JJ.). Stumm. Solicitors: Stephens & Tozer.

28. Executor Accounts-Fees paid to clergyman-At funeral of testator.

It is not the practice of the Registrar to allow in executors' accounts any fee paid to a minister of religion for officiating at the burial of the testator. In re KENT, 19th April, 1905, COOPER C.J. IN CHAMBERS. Counsel: Lilley; Shand. Solicitors: King & Rutledge; Morris & Fletcher.

66

29. Pacific Island labourer - Employment of - Tropical or semitropical agriculture"-Portable tramway-"Field work"-The Pacific Island Labourers Act of 1880 Amendment Act of 1884 (47 Vic., No. 12), ss. 2, 10-The Pacific Island Labourers (Extension) Act of 1892 (55 Vic., No. 38), s. 4.

ORDER NISI TO QUASH A CONVICTION.

66

""

The defendant, the manager of a company engaged in the sugar industry, purchased the timber on a selection belonging to J., and obtained a lease of the selection for a term of three years, with power to lay down tramways for clearing purposes. The right to graze cattle on the whole area, and the right to sublet, were reserved to J. The defendant employed Pacific Islanders to lay down a portable tramway from the termination of the existing line for the purpose of taking off the timber. He was summoned for committing a breach of s. 10 of The Pacific Island Labourers Act of 1880 Amendment Act of 1884, and was convicted and fined. That section prohibits the employment of Pacific Islanders in any work except in tropical or semi-tropical agriculture." Section 2 defines 'tropical or semi-tropical agriculture' as "field work in connection with the cultivation of sugar cane," and the term is further explained in s. 4 of The Pacific Island Labourers (Extension) Act of 1892. At the hearing evidence for the defendant was given, which went to show that the permanent tramway had been extended to the vicinity of J.'s selection, with the hope of ultimately getting sugar cane from that and the adjoining lands; that the company had in the past cleared the lands of other farmers in the same way, as an inducement to them to grow cane, buying the firewood as a means of giving them a money start; that, in these instances, cane had subsequently been planted; and that this had been done with the knowledge of, and without objection from, the authorities. On the hearing of an application for an order to quash the conviction, Chubb J. held that the employment of Pacific Island labourers in laying down the portable tramway for the purpose of removing timber from J.'s lands was not " field work in connection with the cultivation of cane," but expressed a doubt whether it would not be so considered if evidence were given to show that the removal of the timber was undertaken in order to prepare the land for the cultivation of sugar cane under a prior definite agreement with somebody that the land would be used in that way.

NEWMAN v. WARING, Ex parte WARING, 5th and 14th April, CHUBB J. (IN THE NORTHERN COURT). Counsel: Macnaughton; Jameson. Solicitors: L. E. Challands, Ingham; J. W. Alexander, Townsville.