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August 1, 1905.
THE QUEENSLAND LAW REPORTER.
Warwick. No guardian of the infant daughters had been appointed.
The Curator of Intestate Estates opposed the grant, urging that he was entitled to administration of the intestate's estate, and that he was in the position of a committee of the estate of the widow.
Macgregor, for the applicant: The Curator would be entitled to commission at the rate of five per cent. on the gross assets, the applicant undertakes to take no commission, and thereby about £80 is saved for the estate. The assets are situated at Warwick, and à person residing there, and having local knowledge is at an advantage, for there are matters which require close investigation, as in the chose in action, and there are matters requiring personal supervision, as in the prickly pear selection. The appointment of the applicant would be convenient and beneficial to the estate, and the Court had power to do so under s. 32 of The Probate Act of 1867.
REAL J. expressed the opinion that unless exceptional circumstances were shown to exist, proving that some benefit would accrue to the estate, administration of the estate of an intestate would be granted to the Curator as against an applicant who was a stranger in blood to the intestate ; but he considered the facts of this case were sufficient to show a benefit, and granted administration to the applicant limited during the incapacity of the widow or the minority of the children.
The advertisements which had been published on behalf of the applicant were in the forms required for ordinary cases of administration, and not for limited administration. In re Geddes (1902, Q.W.N. 70).
REAL J. directed that these advertisements and the other formal requisites already complied with might be taken as sufficient, notwithstanding any defect by reason of the fact that they referred to the application as one for administration only, and not for the limited administration, which the Court authorized to issue.
In re WICKHAM, 1st July, REAL J., Counsel : Macgregor. Solicitors : Foxton Hobbs & McNish, for Curnow Fleming & Caine, Warwick.
38. Probate and administration-Executors according to the tenor
Devise and bequest of all real and personal estate to trustees—
Direction for payment of debts, funeral and testamentary expenses. MOTION.
A testator died, having made a will by which he directed “after payment of my just debts, funeral, and testamentary expenses, I give, devise, and bequeath all my real and personal estate to” two named persons upon certain trusts. The will contained no express appointment of executors.
Application was made to the Registrar for a grant of probate to A. and B., as executors according to the tenor, and he required the application to be made to the Court. 0. LXXI., r. 7.
Hobbs, for the applicant: The principle deducible from decided cases is that where the words of the will show that a person named is required to pay the testator's debts, that person is deemed an executor according to the tenor. In the Goods of Panchard (L.R. 2 P. & D. 369), In the Goods of Baylis (L.R. 1 P. & D. 21), In the Goods of Tandy (27 L.R. (Ir.) 114); Re Burns (4 S. R. (N.S.W.) 257). In re Trimble's Will (11 Q.L.J. (V.C.) 38), In the Goods of Rufus Kirby ([1902) P. 188).
REAL J.: Having looked at the case of In re Trimble (11 Q.L.J. (N.C.) 38), I cannot distinguish it from this case, except that the words “ executors of this my will ” appears in print. In neither case any executor expressly
THE QUEENSLAND LAW REPORTER.
AUGUST 1, 1908.
appointed. I have had the advantage of reading the note made by Griffith C.J. on that case, in which he says, “I am of opinion that the gift of the whole of the testator's property, subject to a charge for debts, is sufficient to make him an executor according to the tenor.” I agree with that proposition if words are used which expressly give the whole property, and charge the debts thereon ; but apart from the decision in In re Trimble's Will, I would not have been inclined to hold that the words used in this case, although the same in substance so far as the charge is to be considered, would have the same effect as indicating that the person so taking, subject as aforesaid, was to be executor according to the tenor.
The words used in that case were, “after the payment of all my just debts, funeral and testamentary expenses, I give, devise, etc.” The words used in this case are also, “after the payment of all my just debts, funeral and testamentary expenses, I give, devise, etc.” I cannot distinguish between the words of gift used in this will, and the words used in the will of Trimble. Therefore, I will follow that case, and order probate to issue.
In re McLENNAN, 1st July, 1908, REAL J. Counsel : Hobbs. Solicitors : Roberts & Roberts, for V. Drury, Dalby.
39. Practice--Service of writ of summons-Foreign corporation --
Substituted service-Summons to set aside service-Foreign
H. was the attorney and the general Australian representative of a foreign company, which was incorporated under the laws of West Virginia, in the United States of America, H. resided in Sydney, and personally carried on the business of the company in that place; he also controlled the business in Brisbane, which was contracted through his Brisbane agent. An action was commenced by writ of summons for service out of the jurisdiction, claiming a declaration against the company that certain bond warrants for goods in bond delivered by the company at Brisbane were fraudulent preferences.
Held, that the subject matter of the action fell within the provisions of 0. XI.
Held, also, that service of the writ of summons on H. at Sydney was good service.
The question of service of a writ of summons on a foreign corporation considered.
RUSSELL WILKINS & Co., LTD. v. PECK & Co., 24th October, 1907, FULL COURT (COOPER C.J., REAL AND POWER JJ., Noel A.J.). Counsel : Feez, Lukin; O'Sullivan. Solicitors: Stephens & Tozer ; O'Sullivan & Scott.
40. Master and servant-Claim for wages- Costs incurred by the
servant in prosecuting such claim for wages or any damages the
wages ”—Masters and Servants Act of 1861 (25 Vic., No.
Coates v. McKay, 11th and 12th March, 1908, FULL COURT (COOPER C.J., REAL AND POWER JJ.). Counsel: Power; Douglas.
Solicitors : FitzGerald & Power, for T. G. Fraser, Clermont ; H. C. Reeve, for Risien & Mullen, Clermont.
SEPTEMBER 1, 1903.
THE QUEENSLAND LAW REPORTER.
41. Divorce-- Practice-Co-defendant--Application to proceed without
co-defendant - Order to join co-defendant The Matrimonial
Causes Jurisdiction Act of 1864 (28 Vic., No. 29), s. 23. This was an application for leave to proceed in an action brought by a husband for dissolution of marriage, without making an alleged adulterer a co-defendant. When the petition was filed, the petitioner was not aware of the name of any person or persons with whom he could allege that his wife had committed adultery, but subsequently his solicitor became possessed of a statement purporting to be signed by the wife, in which it was stated that she had committed adultery with B. while living apart from her husband. At a later date the wife called at the office of the solicitor, and said that the above statement was not true; that, although she had committed adultery with some person, his name was not B, and that she was willing to correct the statement. The solicitor advised her to obtain independent legal advice. The wife subsequently made a declaration before a Justice of the Peace that she had committed adultery with C. This was shown to C, and he denied the truth of its contents. The solicitor also obtained statements from two persons that C. and the wife had frequently been seen together at night during the period when the alleged adultery was supposed to have taken place.
Hart, for the applicant, asked leave to proceed in the action without joining C. as a co-defendant, and cited Saunders v. Saunders ( P. 89); Jones v. Jones ( P. 165); Bennett v. Bennett (10 Q.L.J. 82); Edwards v. Edwards ( P. 317); The Matrimonial Causes Jurisdiction Act of 1864, s. 23.
COOPER C.J. refused the application, and ordered the petitioner to join C. as a co-defendant.
F. 1. F., 8th August, 1908, COOPER C.J., IN CHAMBERS. Counsel : Hart. Solicitors : Feez & Baynes.
42. Local government--Election of councillors-Election not held
within the prescribed time--Clerk of Shire-Person performing the duties of clerk- Resignation of councillors-By letter to clerk or to person acting as clerk-- Appointment of councillors by Governor-in-Council-The Local Authorities Act, 1902 (2 Edu. VII., No. 19), ss. 47, 48, 49--The Third Schedule, THE QUEENSLAND LA REPORTER.
rr. 4, 11, 15, and 24. On 17th August, G., a councillor of a Shire under the Local Authorities Act, handed his resignation of that office to the Shire clerk. No action to hold an election for filling the vacancy so caused was taken by the returning officer, and the clerk, purporting to act under r. 24, sub-rule 4, of The Third Schedule, published public notices on 4th October for holding an election, and held an election.
Held, that the election was invalid, as the public notice bad not been giver within thirty days after the occurrence of the vacancy, and that the Governorin-Council had power to appoint à councillor to the office.
Two councillors who were appointed to office by the Governor-in-Council resigned by giving notice to the chairman of the Shire. These notices were subsequently handed by the chairman to the person who wis acting as Shire clerk, to whom the two councillors also gave similar notices. During this time another person claimed to be the Shire clerk.
Held, that these resignations were operative, and that as no steps had been taken to fill the vacancies within thirty days, the Governor-in-Council had authority to appoint persons to the offices.
The King v. VoIGHT AND OTHERS, Ex parte O'Shea, 10th and 11th June, 1908, FULL COURT (COOPER C.J., REAL AND POWER JJ.). Counsel : Macgregor and Watson; O'Sullivan and Douglas. Solicitors : J. A. Snow, for W. H. Summer- . ville, Ipswich; The Crown Solicitor.
SEPTEMBER 4, 1908.
43. Practice -- Evidence—Two defendants Right of one defendant to
cross-examine another defendant.
C. brought an action against M. and I., claiming damages against M. for the breach of a warranty of soundness in a contract for the sale of a horse, and alternatively claiming damages against I., as the agent of M., for breach of a warranty of authority, or in the further alternative, against I., as the agents of C., for neglect of duty.
Counsel appeared for each of the defendants. I. was examined by his counsel, and counsel for M. then claimed the right to cross-examine the witness. Counsel for the plaintiff objected, on the ground that the defendants were friendly to each other, and were both seeking to establish the same fact--viz., that the relationship of principal and agent did not exist between them. The following authorities were referred to :-Allen v. Allen (1904, P. 248), Lord v. Colvin (3 Drew 2.22), Phipson on Evidence, 2nd Ed., p. 447.
COOPER C.J. permitted counsel for defendant 1. to cross-examine defendant I. on matters relevant to the defences raised by M.
Cox v. MOSMAN AND ISLES, LOVE, & ('o., 24th August, 1908, COOPER C.J., CIVIL SITTINGS. Counsel: Lukin, Wassell; Stumm; Macgregor, McLeod. Solicitors : Morris & Fletcher; Chambers, Me Vab, & McNab; Atthow & McGregor.
44. Justices-Small Debts Court-Jurisdiction—“ District in which
the debt was contracted—Small Debts Act of 1867 (30 Vic.,
No. 29), 8. 12."
Held, that the Small Debts Court at Biggenden, under s. 12 of The Small Debts
THE KING v. THE JUSTICES OF BIGGENDEN, Ex parte BELL, July 29, 1908, FULL COURT (COOPER C.J., REAL AND POWER JJ.) Counsel : Lilley ; O'Rourke. Solicitors: Rüthning & Jensen ; E. K. Tully, for J. P. Forde.
45. Small Debts Court-Abandonment of part of amount of the claim for
purpose of giving jurisdiction to Small Debts Court-Amount to
Amendment Act of 1894 (58 Vic., Vo. 10), s. 2.
The defendant appealed to the District Court.
Lukin, for the appellant: The debt was £57. It was reduced to £50 in the belief that the Small Debts Court would then have jurisdiction. The provision allowing abandonment of part of the amount of the original cause of action is s. 10 of The Small Debts Act of 1867. That only gives jurisdiction where the
SEPTEMBER 4, 1908.
THE QUEENSLAND LAW REPORTER.
amount of the original cause of action is reduced to £30. That section has never been expressly repealed, and s. 2 of the Act of 1894 has not the effect of altering or repealing its provisions. Re Williams (34 Ch.D. 573), Versey Docks v. Henderson (13 A.C. 595), Gwynne v. Burnett (7 Cl. & F. 696); Craies on Statute Law, 4th Ed., p. 70.
Brennan (Solicitor) contended that the Small Debts Court had jurisdiction in all cases where the amount claimed did not exceed £50, and that when the Legis. lature enlarged the jurisdiction to £50 by s. 2 of the Act of 1894, it was intended that s. 10 of the Act of 1867 should also be extended. Maxwell on Statutes, p. 316.
VOEL D.C.J. held that the Small Debts Court had no jurisdiction in this case, and allowed the appeal.
LOCKE V. GUYMER, 24th July, 1908, NOEL D.C.J., Warwick. Counsel : Lukin. Solicitors : Curnow, Fleming, & Caine; Flower & Brennan,
46. Probate and administration Lost will--Small estate—Practice
Proof of motion.
This was an application upon motion by the surviving executor of B. for a grant of probate of the will as contained in a copy, which was filed. Abundant evidence was given on affidavits that the testator made his will, and that the copy produced was a true copy of that will, both by the constable who made the copy, by the widow, by other persons who had seen the will and heard the same read out on the day of the testator's death, and by the officials of the Department of Public Lands, who had seen both the original and the copy. There was no proof that the consent of the next-of-kin had been obtained. At the time of the application the farm, which composed the bulk of B.'s estate, with all improvements thereon, was worth about £200.
Macgregor, for the applicant referred to In the goods of Apted ( P. 272; In the goods of Pearson ( P. 289); In re Ridgeway (1896, Bris. Courier, 17th Sep.); In re Ottermullen (1896, Bris. Courier, 27th July); The Probate. Act of 1867, s. 20; The Real Property Act of 1877, s. 10; Power on The Real Property Acts, p. 118; The Succession Act of 1867, s. 39; Sugden v. Lord St. Leonards (1876, 1 P.D. 154.
REAL J. : I have no doubt that the testator made a will, and that this document is a true copy of his will. This is certainly a case in which the course proposed should, if possible, be allowed, and as there are two cases in this Court and one of the Probate Division of the English Court, in which such applications have been acceded to, I will follow these authorities, and will grant to the applicant probate of the will as contained in the copy until the original will or a more authentic copy thereof be brought into and left in the Registry.
In re ALFRED BAYNTON, 5th June, 1908, REAL J. Counsel : Macgregor. Solicitor: C. Harries.
47. Licensing law-Notice of intended prosecution - Burden of proof-Evidence of notice- Jurisdiction-Judicial notice
Evidence-Recalling witness by Justices—The Liquor Act of
1886 (50 Vic., No. 30), s. 25. By s. 25 of the Liquor Act, it is provided that no licensee shall be convicted of certain offences unless within fourteen days after the day on which the offence is alleged to have been committed, notice in writing of the intended prosecution specifying the section of the Act for breach of which the prosecution is intended to be instituted. A licensee was convicted of one of these offences. The only evidence given of compliance with the above provision as to notice was that a constable said he had served a notice of intended prosecution on the licensee personally, and had explained the nature it to her. No cross-examination on this evidence followed, and the defendant, on being asked in Court to produce the notice served, refused.
Held (per Cooper C.J. and Power J.), that the section was analogous to a section conferring jurisdiction : that there was no necessity to prove that notice was given ; but that the Magistrate, on being satisfied that it had been given, had jurisdiction to make the conviction.