JUNE 2, 1905. QUEENSLAND WEEKLY NOTES. 30. Probate and administration Foreign probate-Grant to two MOTION. A testator domiciled in Victoria died, having made a will appointing G. his executor, so far as related to any share or interest in any lands, goods or effects, wherever situated, which should be used or employed in any business or partnership in which he was interested with G., or with G. and any other person, and he appointed The Trustees, Executors, and Agency Co., Ltd., executors so far as related to all his remaining real and personal estate. Probate was granted by the Supreme Court of Victoria to G. as to the one set of assets, and to The Trustees, Executors, and Agency Co., Ltd., as to the other assets. The testator had no property in Queensland to be administered by the executor G. Application for a re-seal of that portion of the probate which related to the executor company was made to the Registrar, and by him refused. This application was then made to the Court for a re-seal of the whole probate by the attorney of the executor company. The executor, G., was represented by counsel, and undertook to consent to any grant made. It was argued that although in general all executors should join in an application for a re-seal of a foreign probate [In the Will of Rofe (29 V.L.R. 681)], yet in this case the reason on which that decision was given did not apply, for G. was consenting to incur any liability imposed upon him. In this case the circumstances were of a special nature, for one executor had no duties to perform with regard to assets in Queensland; the English practice appears to be that a colonial grant made to more than one person will be re-sealed on the application of one of the grantees with the authority and consent of the others. S. C. Smith, June, 1898, cited in Tristram & Coote's Probate Practice, 13th Ed., p. 266. COOPER C.J. ordered the grant to be re-sealed. In re BENN, 19th May, 1905, COOPER C.J. IN COURT. Counsel: Hart; Henchman. 31. Grazing farm-Two applications for-Tenders-Withdrawal of one APPEAL FROM THE LAND COURT. This was an appeal from the Land Court, which had refused to reconsider its approval of an application for a grazing farm, with the view of determining the rental at 1d. per acre (the proclaimed rent) instead of 24d. per acre (the tendered rent). It appeared that the appellant and W. each applied for the same land as a grazing farm. The tender put in by W. was the lower in amount. Before the Commissioner's Court considered the matter, W., with the consent of the Commissioner, withdrew his application (reg. 15 of the Land Regulations, 1903). The Commissioner accepted the appellant's application, and subsequently notified that the rental to be paid was 2d. per acre, the amount tendered, and this was approved by the Land Court. The appellant appealed to the Land Appeal Court, and the judgment of the Court was delivered by MANSFIELD D.C.J.: In this case there were two applications for the same land as a grazing farm. Each applicant lodged a tender. The Commissioner, before the applications were dealt with in open Court, allowed one of them to be withdrawn, See post 2°34 so that when the case was dealt with there was only one application before him. Under these circumstances we are of opinion that the statutory provisions relating to tenders do not apply, and the appellant is accordingly entitled to the farm at the proclaimed rent of 11⁄2d. per acre. We desire to add that there does not appear to us to have been any sufficient reason for allowing the applicant Walters to withdraw his application. The Commissioner appears to have allowed the withdraw al under reg. 15. It has been suggested by two members of the Court that possibly that regulation was ultra vires. That point was not, however, raised during the argument, and we think that in any case the Commissioner should not allow a withdrawal under that regulation unless under special circumstances, and we see no reason why the Commissioner should have allowed a withdrawal in this case. The appeal is allowed. In re ALEXANDER, 4th and 10th April, 1905, LAND APPEAL COURT, BRISBANE (MANSFIELD D.C.J., MESSRS. SWORD AND HEENEY). Counsel: Wilson. Solicitors: Chambers & McNab; The Crown Solicitor. 32. Grazing homestead-Application for, with tender-Application for same land as grazing farm-Acceptance and approval of application for grazing homestead at the tendered rent-Power to reconsider— Approval of application at proclaimed rent-The Land Act, 1897, (61 Vic., No. 25), ss. 51-53, 91-95-100-The Land Regulations, 1903, reg. 17. APPEAL FROM THE LAND COURT. A. applied for a selection as a grazing homestead, and lodged a tender. B. and C. applied for the same land as a grazing farm, and lodged tenders. The Land Commissioner accepted A.'s application (The Land Act, 1897, s. 97), but did not state whether the application was accepted at the proclaimed rent or at the rent tendered. He subsequently notified A. that the rent tendered would be the rental payable. No application other than A.'s was made for the land as a grazing homestead. The Land Court approved the application as accepted by the Land Commissioner. A. applied to the Land Court to reconsider the approval of the application. The Land Court refused, and this appeal was made to the Land Appeal Court. Chambers (solicitor): The Land Court has power to reconsider the matter, and the Land Appeal Court has a similar power. Under s. 97 applicants for grazing homesteads have priority, and as in this case only one application for the land as a homestead was made, the applicant is entitled to the land at the proclaimed rent, and his tender should never have been opened. The Land Act, 1897, s. 100, and The Land Regulations, No. 17. Wilson: The Crown offers no objection to the reconsideration of the matter if the Court has power so to do, but generally the approval of the Land Court is final (s. 53). Woods v. The Sheriff of Queensland (6 Q.L.J. 163). It is clear that the applicant is entitled to the land as a grazing homestead - the only question is whether the proclaimed or the tendered rent should be paid to the Crown. Held, that under the special circumstances the Court had power to reconsider the approval of the application. Held also, that A., being the only applicant for the selection as a grazing homestead, was entitled to it at the proclaimed rent. In re ALEXANDER (No. 2), 4th April, 1905, LAND APPEAL COURT (MANSFIELD D.C.J., MESSRS. SWORD AND HEENEY). Counsel: Wilson. Solicitors: Chambers & McNab; The Crown Solicitor. JUNE 30, 1905. QUEENSLAND WEEKLY NOTES. 33. Crown Lands-Application for selection by company-Land Act, 1897, ss. 53, 91-93, 128—Acts Shortening Act of 1867, s. 11. Application by the Queensland Investment and Land Mortgage Company, Limited, to select portions in the parish of Taunton as an unconditional selection. The Land Commissioner accepted the application; but the Land Court, not being satisfied that a company could select land under The Land Act, 1897, caused the matter to be set down for hearing. Wilson, for the Crown. There was no appearance on behalf of the applicants. MR. HEENEY referred to the case In re Unconditional Selection No. 241, 11th November, 1903, in which he refused to approve of an underlease to a limited company, under s. 128 of The Land Act, 1897, and adjourned the Court until a later hour of the day, when he gave the fol owing decision: In this case, I cannot see my way to approve of the application. It is made by the Queensland Investment and Land Mortgage Company, Limited, for portions 4 and 5, parish of Taunton, containing 610 acres, being unconditional application No. 2496, Bundaberg Register. The application is signed by W. W. Hood on behalf of the company, which is a corporate body. A corporation is an artificial or fictitious person created by law for certain purposes; but I consider that a corporation is not competent to make the present application. The whole policy and intention of the Act as regards selections appear to me to require an application for a selection to be made by an individual or natural person as distinguished from a corporate person, and I cannot see there is anything in the Acts Shortening Act of 1867, s. 11, to contravene this view. The decision of the Land Commissioner for the Bundaberg District, dated 8th February, 1905, accepting unconditional application No. 2496, Bundaberg Register, is hereby reversed, and the said application is rejected accordingly. In re APPLICATION OF THE QUEENSLAND INVESTMENT AND LAND MORTGAGE COMPANY, LIMITED, 2nd May, 1905, LAND COURT, BRISBANE (MR. HEENEY). Counsel: Wilson. [Reported by W. F. Wilson, Esq., counsel to the Lands Department.] 34. Crown Lands-Two applications for grazing farm with tenders—One application refused as invalid—Remaining application approved at proclaimed rental—Land Act, 1897, ss. 94, 100—Land Regulations, 1903, regs. 14, 17. Application to the Land Court by Beatrice Violet Craven for the approval of her application to select portion 3, parish of Crossmoor, as grazing farm 988, Aramac Land Agent's District, at the proclaimed rent, and not at the tendered rent. The facts of the case were admitted to be as follows:-Portion 3, parish of Crossmoor, Aramac Land Agent's District, was proclaimed open for selection at Longreach at 11 a.m. on the 12th July, 1904, at a rental of 13d. per acre. At 10 a.m. on that day an application for the land, with a tender of 2d. per acre, was lodged by D. G. R. Frew, on behalf of R. C. Lloyd, and the register of applications was signed "R. C. Lloyd-by his agent, D. G. R. Frew." At 11 a.m. Beatrice Violet Craven, by her attorney, C. Blume, lodged an application with a tender of 2d. per acre, but neither Lloyd nor Frew was then present, and the Commissioner adjourned the Court until 2.30 p.m., at which time both Frew and Blume attended on behalf of the respective applicants. Frew then stated, in answer to the Commissioner, that he did not hold any power of attorney or other authority in writing from Lloyd. Cannan, solicitor for the applicant, Craven, objected that Lloyd's application could not be accepted, as Frew was not the "duly constituted attorney" of Lloyd within the meaning of s. 94 of The Land Act, 1897, and regs. 14 and 17 of The Land Regulations, 1903. He further contended that Craven's application should be accepted at the proclaimed rental. The Assistant Commissioner refused Lloyd's application and accepted Craven's application at the tendered rental. Craven applied to the Court to approve of her application at the proclaimed rent. The Court caused the matter to be set down for hearing in open Court. QUEENSLAND WEEKLY NOTES. JUNE 30, 1905. Cannan: The Land Agent ought not to have received Lloyd's application from Frew, as Frew did not produce a power of attorney or other written authority from Lloyd. As Lloyd was not present at 11 a.m. or 2.30 p m., either by himself or his "duly constituted attorney," his application was properly refused under reg. 11. As Craven's was the only proper application, she was entitled to the land at the proclaimed rental. In re Roger's Appeal (1903 Q. W.N. 73), In re Alexander's Appeal (1905 C.L.L.R.189; 1905 Q.W.N. 31). [MR. SWORD: Since that decision was given certain documents affecting the matter have come before me, and it now appears to me that the Commissioner was justified in allowing Watters' application to be withdrawn, as Watters had applied for two portions, and did not want to hold portion 1 when he found that he could not obtain portion 2, the latter having been applied for as a grazing homestead at the same time by Alexander, who therefore was entitled to priority.] Wilson: In re Alexander's Appeal (supra) is distinguishable, as only one applica tion was then dealt with by the Court. In this case two applications were dealt with, one being accepted and the other refused. "Duly constituted attorney" ought not to be construed so strictly as to require a power of attorney or even an authority in writing to be produced when the proper officers are satisfied, as they apparently were in this case. Two applications having been lodged and dealt with, Craven's application should now be approved at the tendered and not the proclaimed rent. In re Roger's Appeal (supra) does not bear on the present case. C.A.V. On the 31st May the Court decided that the applicant, B. V. Craven, was entitled to hold the land applied for during the first period of the lease at the proclaimed rent of 13d. per acre per annum, on the ground that her application should, under the circumstances, have been treated as the only application for the land. Mr. Sword stated that if both Craven's and Lloyd's applications had been equally perfect legally a ballot should have been taken between the two applicants, and he expressed the opinion that an applicant for a selection who tendered a rent above the proclaimed rent should be bound to pay the higher rent only when he or she was granted priority by reason of having tendered the highest rent or had gained the selection at a ballot taken amongst two or more applicants who had tendered the same rent for the same selection. In re CRAVEN'S APPEAL, 29th and 31st May, 1905, LAND COURT, BARCALDINE. Counsel: Wilson. Solicitors: Cannan; The Crown Solicitor. [Reported by W. F. Wilson, Esq., counsel to the Lands Department.] 35. Practice-Special case--Form of―0. XXXVIII., r. 1. In a special case stated under the provisions of O. XXXVIII., r. 1, for the opinion of the Court upon the construction of a will, most of the facts were concisely set out in paragraphs, but the will- -a very long document-was only referred to as having been duly executed, and a copy thereof was annexed to the special case. REAL J. Neither the will nor its effect is set out in the statement of the special case, and looking at the case only, framed as it is, without reference to the document annexed, no person would be able to even hazard an answer to the questions submitted. Before those questions can be understood, the annexure must be perused. That annexure consists of a copy of the whole will, although many parts of it have no bearing on the questions submitted. I do not think that the form in which this case is presented is a concise statement of the facts and documents necessary for the determination of the questions of law raised within the meaning of O. XXXVIII., r. 1. It seems to me that the material passages of the will, if the exact wording thereof is of importance, or a concise statement of their effect should be set out in the special case itself. The Court and the parties may always refer to the whole document upon the argument of the case. I will be disposed on future occasions to refuse to consider special cases which are not presented to the Court in the form required by the rules. QUEENSLAND TRUSTEES LIMITED V. FINNEY AND ANOTHER (No. 2), 4th, 5th and 13th May, 1905, per REAL J. IN FULL COURT. Counsel: Feez; Shand; Stumm. Solici tors: Chambers & McNab; O'Shea & O'Shea. A by-law of a Shire Council, made for the purpose of preventing the spread of the tick pest, provided (Clause 2) that no owner of stock should commence to travel the same into, out of, or through the Shire unless he had obtained from an inspector a permit authorising him so to do, and that every owner of stock should, before commencing to travel the same into, out of, or through the Shire, give seven days' notice in writing to an inspector of his intention so to do; and further (Clause 5), that when any stock should be, in the opinion of an inspector, affected by the pest, he might, by notice in writing signed by him and given to or served on the owner of such stock, order that before the expiration of seven days from the day on which such notice should be given to or served on such owner, such stock should be dipped or treated in a prescribed manner. T.'s cattle, depasturing in a paddock within the Shire, were examined by an inspector and declared to be tick infested. The inspector thereupon gave T. notice in writing that if the cattle were not dipped within seven days he would take action at once. T. had no private dip, and although there was a dip within the Shire, there was a nearer and more convenient dip without the Shire, to which T. travelled the cattle. T. assumed and believed that the order to have the cattle dipped was also a permit within the meaning of Clause 2 of the by-law. Proceedings were taken against him for a breach of the provisions of that clause, and the complaint was dismissed. Held, that the clauses were incompatible, and that it was unreasonable to expect & compliance with Clause 2 from an owner of stock who had received a notice under Clause 5, and that therefore the appeal should be dismissed. BEETHAM O TREMEARNE, 15th March, 1905, FULL COURT (COOPER C.J., POWER J.). Counsel: Lilley; Stumm. Solicitors: Tully & McCowan; Stephens & Tozer. 37. Husband and wife-Desertion-Constructive desertion-Leaving without means of support-Previous dismissal-Res judicataOmission to answer letters, effect of The Deserted Wives and Children Act of 1840 (4 Vic., No. 5, ss. 1, 2)-The Deserted Wives and Children Act Amendment Act of 1858 (22 Vic., No. 6, s. 6). ORDER NISI TO QUASH A CONVICTION. On 27th September, the complainant (the wife of the defendant) left her husband's house, to which she never returned. On 23rd October, 1904, she sued her husband for maintenance, alleging that he had deserted her, although she had left his house, for she had been driven out of it by misconduct on his part amounting to desertion without reasonable cause under s. 6 of The Deserted Wives and Children Act Amendment Act of 1858. The Magistrate hearing the complaint considered the evidence insufficient, and the case was dismissed. On 16th January following, she laid another complaint against her husband, charging him not with desertion, but with leaving her without means of support. The offence in this complaint was alleged to have been committed on the same date as the desertion complained of in the first compiaint. No order was made upon that complaint, the Magistrate being of opinion that the matter was res judicata. Then a third complaint was made, charging the defendant with having left her without means of support on 18th November (about three weeks after she had left his house), and the Magistrate made an order against the defendant for the payment of ten shillings per week to his wife as maintenance. An order nisi to show cause why this order should not be quashed was obtained on the ground that there was no evidence that the defendant had left the complainant without means of support. The only evidence given at the hearing material to the issue of whether the wife was left without means of support was |