FEBRUARY 10. 1905.

QUEENSLAND WEEKLY NOTES.

Mayne: The appellant did not waive his rights in any way. coin or specie or legal tender or legal currency.

"Cash" means In Beales v. Crisford (13 L.J. Ch. 26), it was held that promissory notes are not "cash," and that "cash" is a stricter word than money. He also cited Re Wilmott (12 N.S.W.L.R. 304). He also referred to sections 102 and 170 and other sections of The Land Act, 1897, where the words "in sash" were not used; and contended that those words in sections 91 and 92 and the word "moneys" in section 93, were inserted with the express object of requiring payment in coin. He also contended that a Commissioner ought not to have a discretion to accept some cheques and refuse others. Allowing cheques to be received was direct encouragement to clashing applications. The Act was precise in its terms, and should be followed.

The Court dismissed the appeal, with costs fixed at £5 5s.

In re HOBSON, LAND COURT, Mitchell, 23rd November, 1904. Solicitors: Mayne;
Dyball.

[Reported by W. F. WILSON, ESQ., Barrister-at-Law,
Counsel to the Lands Department.]

3. Practice Attachment of debts—Application to garnishee money due by

Commissioner of Railways to debtor under a contract-O. XLIX., r. 1.

GARNISHEE ORDER.

The plaintiff obtained a judgment in the Supreme Court against the defendant by which he was declared to be entitled to the possession of certain land, and was ordered to pay costs. The costs were taxed and allowed at £23, but were not paid, and no property was discovered on which to levy an execution. By a contract made between the defendant and the Commissioner of Railways, the former was engaged to repair and regulate all clocks and watches belonging to the latter, for the payment of £95 10s. per year, payable quarterly, and had deposited £5 with the latter as guarantee for the due performance of the contract.

On 4th January, 1995, Real J. granted an order calling on the Railway Commissioner to show cause why the quarterly payment falling due under the contract on 1st February, and the said sum of £5 deposited, should not stand charged with payment of the amount due. On 11th January,

Stumm showed cause: The money cannot be attached, for in reality it is money in the hands of the Crown by its officer the Commissioner of Railways, to whom it was granted by vote of Parliament. He referred to The Railways Act of 1888, ss. 8, 16, 20, 21, 33 (5); The Railways Act of 1888, Amendment Act of 1896, s. 9; The Railways Act Amendment Act of 1902, s. 4; and cited: Gidley v. Lord Palmerston (3 Brod, and B. 275), Aitken v. Godkin (5 W.W. & a'B (L.) 216), Magann v. Cooke (1 W.N. (N.S.W.) 68), Cullen Bullen Lime Co. v. Roseby (5 W.N. (N.S.W.) 52), Connolly v. Lyne (8 L.R. N.S. W. 231), R. v. Justices of Brisbane, Er parte The Treasurer of Queensland (11 Q.L.J. 77).

1921 Glon

1905, Q.W.N. 18 | 1894. 1905, Q.W.N. 18 1905, Q.W.N. 40,

QUEENSLAND WEEKLY NOTES.

FEBRUARY 10, 1905.

On application being made for probate of the will, the Registrar, doubting whether the above clause was intended to act as a substitutionary appointment, and whether the grant should be made to B. alone or to the Queensland Trustees Limited and B., required the application to be made to the Court.

Macgregor, for the applicant: The term "trusteeship" in the will means the office, and as one of the trustees appointed by the testator survives, there has been no "vacancy in the trusteeship." The testator never intended that the Queensland Trustees Limited should act in sub-titution of either of the trustees appointed, but only in the event of neither of them filling the office.

COOPER C.J. held, that on the strict interpretation of the will, the testator intended that the Queensland Trustees Limited should only be appointed in the event of the office of trusteeship ceasing to be occupied by any of the persons appointed by the will, and ordered probate to be granted to B.

In re WALMSLEY, 14th December, 1904, COOPER C.J., IN COURT. Counsel: Macgregor. Solicitors: Atthow & McGregor.

2. The Land Act, 1897 (61 Vic. No. 25), ss. 53, 91, 92, 95.-Land Regulations, 1903, Reg. 18.-Meaning of term “Cash,”

APPEAL FROM DECISION OF A LAND COMMISSIONER.

The appellant and one Lethbridge each lodged an application for the same portion of land at the same time within the meaning of s. 95 of The Land Act of 1897. The appellant's application was accompanied by the amount of the first year's rent, and one-fifth of the survey fee in cash; and the application of Lethbridge was accompanied by a cheque for the amount payable as rent and survey fee. The Commissioner directed a ballot to be taken under regulation 18 of The Land Regulations, 1903, which resulted in favour of Lethbridge, whose application was thereupon accepted. The appellant appealed to the Land Court. Evidence was given before that Court by James Hobson, the appellant's husband, who stated that he was present at the Court, and objected on the appellant's behalf to a cheque being accepted as cash, and that he did not withdraw his objection. The Commissioner stated that it was the practice to receive cheques if not at all doubtful, especially in cases like this where there was no bank in the place where the applications were lodged. He further stated that the applicant, F. A. Lethbridge, stated in Court that she could get the cash; and the appellant's attorney, J. Hobson, said, "I am satisfied."

Dyball: (1) Sections 91 and 92 of the Act were complied with by F. A. Lethbridge; (2) The only person entitled to object to a cheque being received was the Crown as represented by the Commissioner, and the Commissioner accepted the amount and gave a receipt for it; (3) The appellant waived any objection to the cheque being received. Cash," in sections 91 and 92, does not mean coin, but is opposed to "credit"; people should not be compelled to get coin or legal tender in places where there are no banks. Cheques are regarded as cash in business transactions. He also referred to the expression" sterling money or bank notes in section 49 of The Elections Act of 1885, the expression "sterling money or Treasury notes" in The Local Auth rities Act of 1902, Schedule III, clause 5 (2); and the expression money or bank notes or a banker's cheque" in section 97 of the Commonwealth Electoral Act 1902; and contended that the expression “cash" in the Land Act should be construed liberally.

FEBRUARY 10. 1905.

QUEENSLAND WEEKLY NOTES.

་་

Mayne: The appellant did not waive his rights in any way.
Cash" means
coin or specie or legal tender or legal currency. In Beales v. Crisford (13 L.J. Ch.
26), it was held that promissory notes are not "cash," and that cash" is a stricter
word than money.
He also cited Re Wilmott (12 N.S.W.L.R. 304). He also
referred to sections 102 and 170 and other sections of The Land Act, 1897, where
the words "in sash" were not used; and contended that those words in sections 91
and 92 and the word moneys" in section 93, were inserted with the express object
of requiring payment in coin. He also contended that a Commissioner ought not
to have a discretion to accept some cheques and refuse others. Allowing cheques
to be received was direct encouragement to clashing applications. The Act was
precise in its terms, and should be followed.

The Court dismissed the appeal, with costs fixed at £5 5s.
In re HOBSON, LAND COURT, Mitchell, 23rd November, 1904.

Dyball.

Solicitors: Mayne;

[Reported by W. F. WILSON, Esq., Barrister-at-Law,
Counsel to the Lands Department.]

3. Practice Attachment of debts-Application to garnishee money due by Commissioner of Railways to debtor under a contract—0. XL1X., r. 1, GARNISHEE ORDER.

The plaintiff obtained a judgment in the Supreme Court against the defendant by which he was declared to be entitled to the possession of certain land, and was ordered to pay costs. The costs were taxed and allowed at £23, but were not paid, and no property was discovered on which to levy an execution. By a contract made between the defendant and the Commissioner of Railways, the former was engaged to repair and regulate all clocks and watches belonging to the latter, for the payment of £95 10s, per year, payable quarterly, and had deposited £5 with the latter as guarantee for the due performance of the contract.

On 4th January, 1905, Real J. granted an order calling on the Railway Commissioner to show cause why the quarterly payment falling due under the contract on 1st February, and the said sum of £5 deposited, should not stand charged with payment of the amount due. On 11th January,

Stumm showed cause: The money cannot be attached, for in reality it is money in the hands of the Crown by its officer the Commissioner of Railways, to whom it was granted by vote of Parliament. He referred to The Railways Act of 1888, ss. 8, 16, 20, 21, 33 (5); The Railways Act of 1888, Amendment Act of 1896, s. 9; The Railways Act Amendment Act of 1902, s. 4; and cited: Gidley v. Lord Palmerston (3 Brod, and B. 275), Aitken v. Godkin (5 W.W. & a'B (L.) 216). Magann v. Cooke (1 W.N. (N.S. W.) 68), Cullen Bullen Lime Co. v. Roseby (5 W.N. (N.S.W.) 52), Connolly v. Lyne (8 L.R. N.S. W. 231), R. v. Justices of Brisbane, Ex parte The Treasurer of Queensland (11 Q.L.J. 77).

1921 Glon