See INDUSTRIAL COURT. BARRISTER-Solicitor-Solicitor having five years' actual practice-Application for admission as barrister without being struck off the roll of solicitors The Supreme Court Act of 1867 (31 Vic., No. 23), s. 40-The Supreme Court Act of 1921 (12 Geo. V., No. 15), s. 10.
By s. 40 of the Act of 1867 it is provided: An attorney, solicitor or proctor of good repute in his profession having been three years in actual practice in Great Britain or the Colony (ie., State of Queensland) who shall pass the examination in classics or mathematics pre- scribed for persons seeking admission to the bar or who shall have a certificate of honour or other academical distinction in classics, mathematics or law from any university or college within the British Dominions may, upon motion in open Court, be called and admitted a barrister-at-law: Provided that when so called and admitted he shall cease to practice as an attorney, solicitor or proctor, and shall be struck off the roll of the Supreme Court, but nothing herein contained shall extend to relieve persons so called and admitted from any action suit penalty or liability for misconduct neglect or other matter in the practice of his profession of an attorney solicitor or proctor nor to disable him from recovering the costs and charges due to him when so called and admitted or from asserting his right of lien or from being again admitted to practice as an attorney solicitor or proctor if disbarred by motion in open Court at his own request without having been guilty of misconduct in the exercise of his profession of a barrister-at-law."
fession having been five years in actual practice in Queensland shall upon motion in open Court at his own request be called and admitted as a barrister-at-law without being required to pass any examination."
A solicitor of the Supreme Court of Queensland of good repute and having been over five years in actual practice in Queensland, applied to be admitted as a barrister-at-law without having his name struck off the roll of solicitors.
Held, that the proviso to s. 40 of the earlier Act was not impliedly repealed by s. 10 of the later Act; that the only alteration of the earlier section which was made by the later section was an elimination of the necessity for an examina- tion in the case of a solicitor of the Supreme Court of Queensland who had been in actual practice for five years or more; and that the application for admission as a barrister-at-law must be refused unless the applicant was willing to have his name struck off the roll of solicitors. Ex parte ATTнOW..
BILL OF EXCHANGE-
See MAGISTRATES COURT. 3.
BILL OF SALE-Assurance of chattels Alleged sale and receipt of purchase money-Possession— The Bills of Sale Act, 1891 to 1896, s. 4—Magis- trates Court-Finding No express finding- Finding of fact by implication from other findings.
The respondent company obtained a judg ment against M. and seized a motor car under a warrant of execution. The appellant, interpleader summons, claimed the car, and gave evidence that on 12th October, 1922, at Cunnamulla, he agreed to buy the car from M. for £95; and that he paid the money and re- ceived a document, signed by M. and witnessed, stating: "This is to certify that I have this day sold to N. one Ford motor car, including one Rushmore generator, one set of special Fox spanners, etc., for full value received." Two days after the sale the appellant left Cunnamulla in the car with M., and arrived at Charleville on 17th. Appellant could not drive a car. day the car was seized at the hotel where M. was staying-appellant was staying at another hotel. Before it was seized, M. asked the bailiff for per- mission to remove from the car his private property.
The Magistrate, on the facts, found that the By s. 10 of The Supreme Court Act of 1921, it appellant had never, after the alleged sale, taken is provided: "Every solicitor of the Supreme or had actual bona fide possession of the car, Court of Queensland of good repute in his pro-and ordered the execution to proceed. He also
found that the document was
44. The company may from time to time by ordinary resolution increase the capital by the
within the mearing of s. 4 of The Bills of Sale creation of new shares. Such shares shall be of
Held, on the facts, that his decision was reasonable.
Held, also, that considering the whole of the circumstances, he could reasonably conclude that the document was a bill of sale.
The appellant contended that the transaction was an independent contract of sale by M. to appellant, completed by delivery, that the Magistrate had not expressly found the non- existence of such contract, and that therefore a new trial should be granted.
Held, that the finding that the appellant | never had bona fide possession of the car, and the finding that the document constituted an assurance of chattels, involved the impliaction of fact that there was no independent contract
NELLIGAN v. WARREGO SHEEP SHEARING COMPANY LIMITED
And See MORTGAGE.
And See SALE OF GOODS. 1.
BRISBANE TRAMWAYS ACTS- See TRAMWAYS.
CARRYING ON BUSINESS—
See MAGISTRATES COURT. 2.
such amount and shall be issued on such terms and conditions as the company in general meet- ing may direct, or in default of any such direc- tion, on such terms and conditions as the directors may think expedient.
45. The company in general meeting may before the issue of any new shares determine that the same or any of them shall be offered in the first instance to the members in proportion to the existing shares held by them, or make any other arrangement as to the issue and allotment of new shares.
46. All new shares shall be offered sold or otherwise disposed of at par or at a premium in such quantities and on such terms and conditions as the general meeting authorising their issue may direct, or in default of any such direction on such terms and conditions as the directors may deem expedient.
47. Any capital raised by the creation of new shares shall be considered as part of the original capital, and shall be subject to the same pro- visions of calls and forfeiture of shares on non- payment of calls or otherwise as if it had been part of the original capital.
On a motion under s. 34 of The Companies Act of 1863 for rectification of the share register of the company by directing the registration of certain transfers of shares taken in the name of the applicant and her nominees, as purchasers, and tendered by her for registration and refused by the directors:
Held, that the directors had not exercised their
CITY OF BRISBANE IMPROVEMENT ACT discretionary right of refusal to register in good
See MAGISTRATES COURT. 4, 5. See PRINCIPAL AND AGENT.
COMPANY - Shares - Purchase of Shares Transfer to nominees-Refusal to register transfers -Rectification of share register-Powers of Directors-Articles of Association-The Com- panies Act of 1863 (27 Vic., No. 3), s. 34.
The Articles of Association of a company provided :- :-
5. The company is entitled to treat the registered holder of any shares as the absolute owner thereof, and accordingly shall not be bound to recognise any equitable or other claim to or interest in any such shares.
7. No person shall exercise any rights or privileges of a member until his name shall have been registered in the register of members.
21. The directors may refuse to register any transfer whatever of any shares without assign- ing any reason therefor.
faith or in the interests of the company, or with due regard to the right of a shareholder to transfer his shares, or to the rights of the transferee; but that it had been exercised for the collateral purpose of unfairly keeping their section of members in a majority and advancing their interests to the prejudice of the other shareholders, and that rectification of the register, as asked, should be ordered. METROPOLITAN
AUSTRALIAN ASSURANCE CO., LTD.
COMPULSORY ACQUISITION- See TRAMWAYS.
See BILL OF SALE. See SALE OF Goods. See SUGAR. 2.
CONTRIBUTORY NEGLIGENCE— See MAGISTRATES COURT. 6.
CONVEYANCE ON SALE— See STAMP DUTY.
-Breaking and entering a dwelling-house with intent to commit a crime --Sentence of six years' imprisonment with hard labour Appeal against sentence-Additional evidence before Court of Criminal Appeal of war service and other useful work done by prisoner Sentence reduced to two years with hard labour.
The prisoner was convicted of charges of breaking and entering a dwelling-house with intent to steal, of stealing in a dwelling-house, and of stealing in another dwelling-house, and was sentenced to six years' hard labour, three years' hard labour, and three years' hard labour in respect of the three offences respectively, the sentences to be concurrent. On appeal to the Court of Criminal Appeal, additional evidence was given proving good war service, and the useful work which had been done by the prisoner, and the sentences were reduced to two years with hard labour in each case, the sentences to be concurrent. R. v. LEWIS
-Appeal against sentence-Stealing in a dwelling-Conviction-Sentence of five years' hard labour-Prisoner's age wrongfully stated at trial- Sentence reduced-The Criminal Code, ss. 398,
Two prisoners having pleaded guilty of steal- ing in a dwelling were sentenced-one to five ysars' imprisonment, the other to two years' imprisonment. The Judge who imposed the sentence stated that he was influenced in im- posing the lighter sentence by the fact that this prisoner was only seventeen and a-half years of age, while the other was older. On appeal by the first prisoner to the Court of Criminal Appeal, it was established to the satisfaction of the Court that the two prisoners were of the same age, and the Court reduced the sentence of five years' imprisonment to one of three years. R. v. O'ROURKE. 3. Appeals against sentences House breaking-Habitual criminal.
On appeal to the Court of Criminal Appeal, a sentence of three years, and a sentence of two years, with a declaration that the prisoner was an habitual criminal, for house-breaking in loth cases, were confirmed.
R. v. MURPHY; R. v. JACKSON .. C.C.A. 276
-Appeals against sentences-Standard- ization of sentences.
Although the Court of Criminal Appeal aims at the standardization of sentences, it must be recognised that while it is possible for the Court to express its opinion that a particular sentence is a suitable sentence to be passed on an offender, the Court cannot say that a sentence a little longer would be excessive or that a sentence a little shorter would be inadequate; the Court therefore does not interfere with the decision of the Judge who presided at the trial, unless the sentence he has passed is one which the Court considers substantially excessive or substanti- to punishment should be fully placed before the ally inadequate. The circumstances relevant trial Judge by counsel for the Crown and for the accused; the fullest details should be made available, particularly in cases of first offenders. Therefore, in certain cases, although the sen- Criminal Appeal did not interfere; but in other tences were apparently severe, the Court of cases, where that Court had a greater oppor- tunity of investigating the circumstances of the prisoners, reductions of sentences were made. R. v. WALLACE; R. v. JOHNSTONE, ROBERTS, R. v. MCINTOSH; R. 2. KING; R. v. STUART ; AND RUSSELL; R. v. WRIGHT
And See HABEAS CORPUS.
Application for grazing Attorney - The
CROWN LANDS homestead-Applicant- Agent Land Acts 1910-1920, ss. 66, 68.
The Lands Act, 1910-1920, provide, by s. 66: Any person desiring to select land shall himself, or by his agent appointed in writing under his hand, lodge an application ; and by s. 68: Every applicant for a selection shall himself, or by his agent appointed in writing under his hand, appear at the Commissioner's Court when his application is dealt with by the Commissioner. If an applicant fails so appear his application shall be refused.
By a power of attorney, A. appointed B. as his attorney to lodge an application signed by A. for a selection, and to appear for A. and on his behalf at a Land Commissioner's Court, and generally to act in respect of the application as A. could do if personally present; and the power of attorney provided that in the event of B. being unable to act as therein indicated, B. should be empowered to appoint a substitute to act in his stead. B. was unable to go to Cloncurry. On the power of attorney he wrote: "I hereby appoint (blank) to act in my stead," and signed his name. B. forwarded the application and power of attorney to his agent in Cloncurry, by whom, with the authority of B., the name of P. was inserted in the blank space, and the applica- tion and power of attorney was then lodged. P. appeared at the Commissioner's Court at Cloncurry, claiming to act as agent for A.
Held, that the appointment of P. did not satisfy the requirements of The Land Acts, and that as A. had failed to appear at the Com- missioner's Court in the manner prescribed by the statute, his application was rightly refused. Re BECKETT'S APPLICATION F.C. 27
And See MAGISTRATES COURT. 5.
See MAGISTRATES COURT. 6.
DESERTED WIVES AND CHILDREN-
1. -Order for Maintenance-Order varying order for maintenance-Appeal—“ Person against whom order has been made "-Jurisdiction on Appeal-Supreme Court-Rehearing-Recogniz ance not a condition precedent to appeal-The Deserted Wives and Children Act Amendment Act of 1840 (4 Vic., No. 5, 88. 2, 10-The Deserted Wires and Children Act Amendment Act of of 1858 (22 Vic., No. 6), s. 12-The Justices Act of 1886 (50 Vic., No. 14), ss. 4, 237, 243-The District Courts Act, 1891 (55 Vic., No. 33), s. 159 (repealed) The Supreme Court Act of 1921 (12 Geo. V., No. 15), s. 3.
In proceedings in a Court of Petty Sessions, under s. 2 of The Deserted Wives and Children Act of 1840, a husband was ordered to pay maintenance for his wife. About a year later the husband applied under s. 12 of The Deserted Wives and Children Act Amendment Act of 1858 for a variance of that order on the ground, inter alia, that his wife had committed adultery. After hearing the evidence, which was chiefly that of a private detective and his subordinates, a Police Magistrate directed that the order for payment of maintenance he "varied in whole to terminate as from 13th July, 1922," the date of the alleged commission of adultery. From that order the wife appealed to the Supreme Court.
Held, that the Supreme Court had jurisdiction to hear the appeal.
Held, that an order made under s. 12 of The Deserted Wives and Children Act Amendment Act of 1858 is an order within the meaning of s. 237 of The Justices Act of 1886, and that therefore the appellant was a person against whom an order was made, and had a right to appeal under ss. 237 and 243 of The Justices Act of 1886 to a District Court, and since the abolition of District Courts by The Supreme Court Act of 1921, had a right to appeal to the Supreme Court.
Held, on the facts, that the evidence before the Police Magistrate did not support a finding of misconduct by the wife, or establish any right to the relief claimed by the husband, and that the husband's application for a variance of the order for payment of maintenance for his wife must be dismissed.
The recognizance which an appellant may enter into under s. 239 of The Justices Act of
1886 is a condition precedent to a stay of pro- ceedings under the order appealed from, but is not a condition precedent to the hearing of the appeal. WHITE v. WHITE Shand J 1
2. Appeal Court of Petty Sessions- Supreme Court-The Deserted Wives and Children Act of 1840 (4 Vic., No. 5), s. 10-The Justices Act of 1886 (50 Vic., No. 17), ss. 4, 237, 242— The Judicature Act (40 Vic., No. 6), s. 10-The Supreme Court Act of 1921 (12 Geo. V., No. 15),
An order was made by a Police Magistrate under The Deserted Wives and Children Acts of 1840, and The Deserted Wives and Children Act Amendment Act of 1858, setting aside an earlier order whereby a husband was ordered to pay maintenance to his wife. By s. 10 of the former statute a right of appeal to the Court of Quarter Sessions is given to every person feeling aggrieved by an order made under those Acts. By s. 237 of The Justices Act of 1886, every person against whom an order is made by Justices is entitled to appeal to a District Court or a Court of Quarter Sessions, and by s. 242 the Judge of the District Court shall hear and determine the subject matter of the appeal. . . and such decision shall be final. District Courts were abolished by The Supreme Court Act of 1921, and by s. 3, subsec. 4, of that Act it was provided that where provision is made for an appeal to a District Court, the appeal shall lie to the Supreme Court or a Judge thereof.
The wife appealed from the order of the Police Magistrate to a Judge of the Supreme Court, who allowed the appeal. From that decision the husband appealed to the Full Court.
Held, that the decision of the Judge of the Supreme Court was final, and that the appeal was not competent.
Held, that the order made by the Police Magistrate setting aside the order for payment of maintenance, was an order from which an appeal would lie under s. 237 of The Justices Act of 1886, and s. 3 of The Supreme Court Act of
DESERTED WIVES AND CHILDREN-Contd. a place situated about 65 miles from Brisbane, on the afternoon of November 6th, calling upon the defendant to appear at the Court in Brisbane on November 8th, at 10 a.m. The defendant did not appear, and the Magistrate, after proof of service on the defendant by affidavit in Form 6 of the Third Schedule to The Justices Act of 1886, heard the evidence for the complainant, and made an order against the defendant. Held, that in view of the circumstances of the case there was no denial of justice.
The sufficiency or otherwise of the time to be allowed between the date of service of a summons on a complaint, and the date of hearing of the complaint, is a question for determination by
the Court which hears the complaint.
An affidavit of service in Form 6 of the Third Schedule of The Justices Act of 1886 is sufficient proof of due service for the purposes of s. 2 of The Deserted Wives and Children Act of 1858. PORTER V. INGOLD, Ex parte INGOLD
DETINUE-Demand for chattels Unlawful re- fusal to deliver-Evidence-Unanswered letter of demand, asking to be allowed to remove chattels, In an action in det nue, judgment was given by a Magistrates Court for the plaintiff. Before action was brought, the defendant wrote a letter, demanding to be allowed to remove the chattels alleged to be detained. The plaintiffs did not answer that letter. There was no other evidence relating to any demand or refusal.
Held, that there was no evidence of an un- lawful failure to deliver up chattels when demanded, and that an action in detinue did not
See SALE OF GOODS. 1.
FRIENDLY SOCIETY-Suspension of branches by Grand Lodge executive for disobedience of rule -Rule invalid-Injunction-Resolution of Grand Lodge-Internal dispute-Jurisdiction of Court to interfere-The Friendly Societies Act of 1913 (4 Geo. V., No. 13), ss. 2, 13, 20, Second Schedule, clauses 37, 40.
The Friendly Societies Act of 1913 provides (s. 20): The provisions set forth in the Second Schedule to this Act governing the business proceedings and property of societies shall be observed. The Second Schedule, clause 40 (1) states: "Every dispute between a member or person claiming through a member or under the rules and the Society or branch or an officer thereof, or Letween any registered branch or an officer thereof and the registered Society or branch of which the other party to the dispute is a registered branch or an officer thereof, and or between any two or more registered branches or an officer thercof, or between any two or more registered branches of any registered Society or be decided in manner directed by the rules. branch or any officers thereof respectively shall (2) The decision so made shall be binding and conclusive on all parties without appeel, and shall not be removable into any Court of law or restrainable by injunction. Rule 63 of the Society's rules provides: Should any dispute arise between the Board of Directors and any lodge or officers, the party aggrieved by the action of the Board may appeal to the Grand Lodge against such action.
Prior to the meeting of the United Ancient Order of Druids (Grand Lodge of Queensland), a society registered under The Friendly Societies Act of 1913, held in April, 1922, the Board of Directors of the Society gave notice of a propoced amendment of the Society's laws or rules by the addit'on of a new rule providing for a levy of threepence per quarter payable by all members on account of a monthly paper which was being publihed by the Society. The proposed new rule was adopted by the Society at its April meeting, but was never approved by the certifying barrister. Section 2 of the Friendly Societies Act provides that an amendment of the rules includes a new rule, and s. 13 provides that no amendment of a rule shall be valid until it has been approved by the certifying barrister and registered under the Act. Rule 47 of the Society's rules provides, inter alia, that: “Each lodge shall contribute to the management fund ninepence per quarter for each member good on the books, or such other amount as may be fixed by the Grand Lodge in session." In July, 1922, the Board of Directors passed a resolution that the payments from the various branches to the management fund of the Grand Lodge be nine- pence and threepence per quarter as from the first day of July, 1922. the latter payment being, as the branch lodges were advised, on account of the monthly paper. Certain lodges refused to collect or forward the levy of threepence to the Board of Directors, who thereupon suspended those lodges.
Clause 37 (2) of Schedule II. of the Act pro- vides that no society shall suspend any branch from benefit except for default in payment of a penalty imposed on the branch or of any con-
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