SEPTEMBER 8, 1905. QUEENSLAND WEEKLY NOTES. 46. Practice Judgment by consent - Misunderstanding between parties Vacation of judgment by consent. MOTION. In a special case stated for the opinion of the Full Court, for the purpose of obtaining a decision whether a certain taxpayer was liable to pay income tax on his salary, judgment was given, by consent of the parties, in favour of the taxpayer. This was done with a view of appealing to a higher tribunal. Subsequently it appeared that a misunderstanding had occurred, one of the litigants considering that it had been agreed that the appeal would be taken to the High Court of Australia, while the other litigant thought that the intention was to allow the unsuccessful party to prosecute an appeal either to the High Court or to the Privy Council.. This was a motion by the taxpayer to set aside the judgment, on the ground that the consent of the parties was given by mistake, and that the order did not express their true intention, and on the further grounds that the consent of the applicant was given by mistake, and that the order did not express his true intention. Lilley and Stumm, for the taxpayer, referred to Wilding v. Sanderson ([1897] 2 Ch. 534), Neale v. Gordon Lennox ([1902] A.C. 465.) Feez and Shand, for the Commissioner of Stamps, consented to the order on the second ground. The Full Court, by consent, ordered that the judgment be vacated. IN THE MATTER OF THE INCOME TAX ACT OF 1902, 20th July, 1905, FULL COURT (REAL AND POWER JJ.). Solicitors: Macpherson, Macdonald-Paterson & Co.; The Crown Solicitor. 47. Building contract-Conditional assignment Equitable assignment -Insolvency of assignor before completion of contract-Completion of contract by trustee-Novation Interpleader - Summary determination—The Judicature Act (40 Vic., No. 6), s. 5, subsec. 6–0. LIX., r. 9. A. contracted with the defendants to find materials and labour to erect a building in accordance with certain plans and specifications, and to the satisfaction of the architect. He was allowed to draw on approval 75 per cent. on the material supplied and labour done. For the plumbing work in connection with the building A. accepted the tender of the plaintiff for £80, and gave him a written order, dated 9th January, 1905, on the defendants for that amount. This order was handed by the plaintiff to one of the defendants, and verbally accepted. Subsequently another of the defendants promised that the order would be paid. At the date of the order work had been done by A. on the contract to a value against which he was entitled to draw, on the certificate of the architect, a sum greater than the amount of £80. On 20th January, 1905, A. filed a petition for liquidation of his affairs, and a receiver was appointed, who continued work under the contract until the appointment of the claimant as trustee. The claimant completed the contract. The plaintiff completed the plumbing work on 1st February, 1905, and received from the architect an order on the defendants in these terms :-"Please pay H. Robinson the sum of £80 on account of ambulance contract for the completion of plumbing work, which has been completed in a satisfactory manner.' The claimant on 23rd February gave notice to the defendants not to pay any moneys due under the contract to anyone but himself. In an action instituted by the plaintiff against the defendants, and on interpleader : Held, that the first order was not an absolute assignment, that the plaintiff was merely a sub-contractor of A., and that there was no novation; but that there was an equitable assignment to the plaintiff of part of a specified fund belonging to the debtor in the hands of the defendants, which was valid as against the trustee. ROBINSON . PODOSKY AND OTHERS, LENNON CLAIMANT, 15th and 22nd March, 4th 5th and 6th April, 1605, CHUBB J., IN THE NORTHERN COURT. Counsel: Macnaughton; Jameson. Solicitors: J. W. Alexander, for Marsland & Marsland; Roberts, Leu, & Barnett; Hobbs, Wilson, & Co. QUEENSLAND WEEKLY NOTES. SEPTEMBER 8, 1905. 48. Landlord and tenant-Lease-Fixtures-Buildings attached to land only by their own weight-Resting on piers-Intention. Buildings erected upon piers let into the soil and which are not attached to the piers in any way are to be regarded as chattels, and not as annexed to the freehold so as to form part thereof, unless the circumstances are such as to show that they were intended to be so. Holland v. Hodgson (1872, L.R. 7 C.P. 328, 334), Monti v. Barnes ([1901] 1 K B. 205), Friend v. Curtis (1891, Brisbane Courier, February 19), and Hose v. Brown (1894, 7 Q.L.J. (N.C.) 75) applied. REID V. SMITH, 22nd and 31st May, 16th June, 1905, CHUв J., IN THE NORTHERN COURT. Counsel: Macnaughton; Jameson. Solicitors: Unmack & Connolly; Roberts, Leu, & Barnett. 49. Mining law-Application for forfeiture-Objection-Formalities -Summary determination by Warden-Consent The Mining Act of 1898 (62 Vic., No. 24), s. 113-Mining Regulations of 10th May, 1900, Regs. 20, 204. ORDER NISI TO QUASH A CONVICTION. The respondent on 16th February, 1905, lodged with the Warden a notice of application for forfeiture of the claim as prescribed by Regulation 20 (1), (2) on the proper printed form, and on the same day copies of this notice, signed by the respondent and by the Warden, were posted on a conspicuous part of the claim, and served on the applicant. No declaration, as required by the Regulation, of such posting and service was lodged at the Warden's office. The Warden, however, on 17th February himself saw the notice posted on the claim, and the appellant admitted to him that he had been served with the notice by the respondent. On 22nd February the appellant lodged with the Warden an objection to the forfeiture. On 24th February the appellant and respondent attended before the Warden, sitting in the Warden's Court, Thornborough, when both parties and witnesses gave evidence on oath upon the matter. The Warden then stated in open Court that it was his intention to visit the claim and satisfy himself whether the labour conditions had been fulfilled or not, whereupon, according to the Warden's affidavit, the appellant stated that he was quite satisfied that the Warden should view the ground and settle the dispute. The appellant, in his affidavit, denied that he requested the Warden to visit the claim or consented thereto; and he further stated that the respondent at the hearing objected to the Warden visiting the claim, and requested him to settle the dispute forthwith. On 4th March, the Warden visited the claim in the presence of the appellant and the respondent, and on his own view was satisfied that the labour conditions had not been fulfilled, and that the claim was liable to forfeiture therefor, and decreed the forfeiture. CHUBB J., on the application for an order absolute, accepted the Warden's statement as to what occurred, and discharged the order nisi, as the facts demonstrated that the parties had both consented to a summary determination by the Warden. Held, also, that the notice of application for the forfeiture of a claim in the form prescribed by Reg. 20 is a complaint within the meaning of s. 113 of The Mining Act of 1898, and that the declaration of the posting and service of a notice of an application for forfeiture, mentioned in Reg. 20, is necessary only where the Warden proceeds ex parte under s. 113. LEAHY V. SMITH. Ex parte SMITH, 31st March, 1st and 22nd May, 14th and 16th June, 1905, CHUBB J., IN THE NORTHERN COURT. Counsel: Macnaughton ; Jameson. Solicitors: Roberts, Leu & Barnett, for P. W. Le Vaux; MacDonnell, Henchman & Hannan. SEPTEMBER 8, 1905. QUEENSLAND WEEKLY NOTES. 50. Justices-Appeal-By way of special case-No appearance of appellant-Practice-The Justices Act of 1886 (50 Vic., No. 17), 88. 226, 231. SHECIAL CASE stated under s. 226 of The Justices Act of 1886. On the application of the appellant a special case was stated by Justices in which certain questions were submitted for determination by the Supreme Court. The special case was duly transmitted by the appellant to the Registrar of the Supreme Court. The required notice was given, and the case was set down on the paper for hearing. When the case was called on for hearing before the Full Court, the appellant did not appear, but the respondent was represented by counsel. Per Curiam: The case having been transmitted to this Court the duty is cast on the Court, by s. 231 of The Justices Act of 1886, to "hear and determine the question or questions of law arising thereon," and, therefore, although the appellant has failed to appear, we think we must consider the questions submitted. The appeal was then heard, and dismissed with costs. COWAN v. HORNE, 18th July, 1905, FULL COART (COOPER C.J., REAL AND POWER JJ.). Counsel: Macgregor. Solicitors: Morris & Fletcher, for 51 Practice-Sale of real estate under direction of the Court- SUMMONS. This was an application for an order that the real estate of a testator might be sold, and that the plaintiff might be appointed to transfer the same to the purchasers. This real estate was part of the subject matter of an administration action commenced by the plaintiff as a residuary devisee under the testator's will against the executors appointed thereby. In that action judgment was given on 16th December, 1904, ordering (inter alia) an inquiry to be taken as to what real estate the testator was seised of or entitled to at the date of his death, and to what encumbrances it was subjected, and it was forthwith ordered that the testator's real estate be sold with the approbation of the Judge, and the money arising thereby to be paid into the credit of the action. On this application a specific proposal for the sale of the real estate was submitted to the Judge for his sanction, to which both the solicitors for the plaintiff and the defendant had agreed. The proposed conditions of sale followed, except as to the sixth clause, the conditions of sale set out in Schedule 1., Part XI., No. 21 of The Rules of The Supreme Court. Instead of Clause 6, the following clause was inserted :— The title of the lands is to be taken to be the certificate of title of the same, and the judgment of the Court pronounced on the 16th December, 1904, and no objection shall be taken by the purchaser and purchasers to the title or titles, or to the power of the person appointed by the Court to transfer." CCOPER C.J. authorised the sale to be carried out on the terms submitted. Re SMALES, DECEASED, SMALES v. HOWMAN AND SMART, 28th August, 1905, COOPER C.J., IN CHAMBERS. Counsel: O'Sullivan; Scott. Solicitors: C. Harries; J. A. Snow. QUEENSLAND WEEKLY NOTES. SEPTEMBER 8, 1905. 52. CRIMINAL TRIAL. Criminal law-Jury-Challenge. At the trial of four persons charged jointly on an iudictment for assault and robbery, three were defended by one solicitor, and the fourth by another solicitor. The jury panel was called, both solicitors exercising the right of preliminary challenge, but did not state on whose behalf the challenges were made. The panel being exhausted was again called, and the solicitors, again without stating on whose behalf, peremptorily challenged twelve jurors. The Crown Prosecutor then objected to any further peremptory challenges. POWER J. held that, although the solicitors had not specified in making their challenges for which of the accused persons the challenge was made, yet, as they appeared for the different persons, the challenges were separate. R. v. MURPHY AND OTHERS, 28th March, 1905, POWER J., CIRCUIT COURT, MACKAY. Counsel Jameson. Solicitors: A. G. Stuart; S. B. Wright. 53. Equitable assignment-Building contract-Agency-ArchitectAuthority to accept orders on principal signed by contractor-Usage of trade-Interpleader. A, a builder, who had contracted to erect a building for B, applied to C for building materials worth £200, offering to give him an order on B for that sum. C agreed to supply the materials, provided that B accepted the order. In December, 1904, an order was given by A addressed to B's architect authorising him to deduct and with. hold £200 from the amount due under the contract. The architect on the same day sent a letter to C, stating that he had received and accepted the order from A on him in C's favour, and undertaking to pay C the amount of £200 out of the moneys otherwise to become payable to A under the contract. C supplied the materials, but it was not proved that they were used on the building. In January, 1905, A filed a petition for the liquidation of his affairs, and the building was completed by the trustee appointed, who received the final certificate. Held, on the evidence, that the architect had no authority express or implied to accept the order, and that by the custom of the building trade an architect has not, by virtue of his employment, authority to accept on behalf of his employer orders given by a contractor to merchants for materials supplied for the work. Held, also, that the order did not constitute a valid equitable assignment. 54. Stamp duty-Limitation of time for proceedings for recovery of duty or penalty-“ Knowledge of complainant "—Signature by auctioneer as agent for vendor-Conveyance on sale-The Stamp Act of 1894 (58 Vic., No. 8), ss. 2, 26, 49, 77. A " Conveyance on Sale" was signed by an auctioner, as agent for the vendor of the property sale, before it was duly stamped for denoting the payment of stamp duty. This document came into the hands of O'B. who read it and forwarded it to the Deputy Commissioner of Stamps. Both O'B. and the Deputy Commissioner had knowledge of the document and its contents before the end of February. On 4th May the auctioneer was summoned on a complaint made by O'B. for committing an offence against the provisions of s. 26 of The Stamps Act of 1894, and was convicted. Held, that the limitation of time in s. 77 of The Stamps Act of 1894 commences to run from the time when the person making the complaint first had knowledge of the facts and the contents of the document in respect of which proceedings are taken, and that whether the complaint was made by O'B. as an individual or as an officer of the Deputy Commissioner of Stamps, the time limited for the recovery of any duty or penalty had expired, and the defendant was wrongly convicted. Quare, whether a private person can prosecute for an offence against s. 26 of The Stamps Act of 1894. O'BRIEN v. DOUGLAS, Ex parte DOUGLAS, 19th and 21st July, 1905, FULL COURT (COOPER C.J., REAL AND POWER JJ.). Counsel: Douglas; Macgregor. Solicitors: Chambers & McNab, for H. Murray; The Crown Solicitor. NOVEMBER 3, 1905. QUEENSLAND WEEKLY NOTES. 55. Insolvency-Certificate of discharge—Evidence—The Insolvency Act of 1874 (38 Vic., No. 5), s. 167 (2). On an application for a certificate of discharge under s. 167 (2) of The Insolvency Act of 1874, Cooper C.J. [following In re Lewis (1903 Q.W.N. 65)] required evidence to be produced, both that the insolvent had not made default in giving up to his creditors the property which he is required by the Act to give up, and also, that no prosecution had been commenced against him under the provisions relating to fraudulent debtors. In re FRENCH, 27th September, 1905, COOPER C.J. Counsel: Fowles. Solicitors: Atthow & McGregor. 56. Food and drugs-Adulteration-Obstruction of officer-Food in course of delivery-The Health Act of 1900 (64 Vic., No. 29), s8. 94, 98, 172.. G., a milk vendor, carried in his cart two cans, one containing milk and the other containing water. While carrying a mixture of milk and water from his cart into a shop, he was intercepted by an inspector, duly appointed under The Health Act of 1900, who demanded a pint of milk for analysis. G. thereupon threw the mixture on to the pavement. On a complaint laid under ss. 98 and 172 of The Health Act of 1900, and charging G. with having obstructed an inspector in the performance of a thing which he was empowered to do, G. was convicted and fined. Held, that G.'s conduct did not amount to an obstruction within the meaning of the said sections. FRASER V. GRAHAM, Ex parte GRAHAM, 18th, 19th, and 20th July, 1905, FULL COURT (COOPER C.J., REAL AND POWER JJ.). Counsel: O'Rourke; Lilley, Wassell. Solicitors: Morris & Fletcher; Macpherson, Macdonald-Paterson & Co. 57. Factories and shops-Pawnbroker failing to close shop at per• scribed hour-Auction sale-Unredeemed pledges-By licensed auctioneer-" Shop"-" Sale by retail"-Allegation-ProofThe Factories and Shops Act of 1900 (64 Vic., No. 28), ss. 4, 51, 68. On appeal by way of special case from an order dismissing a complaint charging the defendant with failing to close his shop at the prescribed hour, the decision of the justices was upheld, as there was no evidence on which they could rightly have found that the defendant's place of business was a shop within the meaning given by s. 4 of The Factories and Shops Act of 1900. A sale by auction, conducted by a licensed auctioneer, is not a "sale by retail" within the meaning of s. 4 of The Factories and Shops Act of 1900. An allegation in a complaint that a factory or shop is a factory or shop within the meaning of that Act is not, by s. 68 of the Act, made evidence of that fact. Quare: Whether The Factories and Shops Act of 1900 applies to pawnbrokers or auctioneers. YOUNG . HALL, 28th and 31st July 1905, CHUBB J., IN THE NORTHERN COURT. Counsel: Macnaughton; Jameson, Solicitors: Alexander; Roberts, Leu & Barnett. |