12 THE QUEENSLAND LAW REPORTER FEB. 9, 1923 THE RULES OF THE SUPREME COURT. The following amendments have been made to the Rules of the Supreme Court by Order-in-Council of December 1, 1922:— Rules relating to the Admission of Barristers of the Supreme Court of Queensland (Amendment to Rules of the Twenty-seventh day of November, 1896). Rule 18 is amended as follows: All the words after the words "prescribed fee” are deleted, and the following words are inserted in their place :— Subject to the proviso next hereinafter contained he must pass a preliminary examination as hereinafter prescribed: Provided that(1) If he has obtained a degree of Bachelor of Arts or Master o! Arts in some University in the British Dominions he shall be excused from passing such preliminary examination. (2) If he has passed some examination or examinations of such a nature as in the opinion of the Board to justify them in excusing him from passing such preliminary examination or from being examined in any of the subjects prescribed for such preliminary examination, he shall be entitled to receive from the Board a Certificate to that effect, and shall thereupon be excused accordingly. Rule 19 is amended as follows: After the words "preliminary examination the following words are inserted:: "in the subjects in which he is by these Rules required to pass the same." And the words of having obtained such degree" are deleted, and the following words are inserted in their place : "that he is excused from passing the same." THE MAGISTRATES COURTS RULES, 1922. The following amendments have been made to the Magistrates Courts Rules by Order-in-Council of January 25, 1923: — AMENDMENT No. 6. 207. Rule 145 of the Rules published in the Gazette, dated 22nd March, 1922, is altered (a) By inserting after the words judgment creditor" where AMENDMENT No. 7. 208. Rule 10, published in the Gazette dated 22nd March, 1922, is hereby repealed, and the following Rule inserted in lieu thereof : 10. The Registrar shall keep an office at each place where a APRIL 13, 1923 THE QUEENSLAND LAW REPORTER 4. Landlord and tenant Land under Real Property Acts Agreement for lease for five years-Lease not in prescribed form-Rent payable weekly-Possession by tenant-Effect in law of agreement - Tenancy from year to yearEquitable right to obtain registrable lease for the term. Summary ejectment-Jurisdiction of Court of Petty Sessions-Notice to quit based on alleged breaches of agreement— Forfeiture Ejectment order-The Summary Ejectment Act of 1867 (31 Fic., No. 27), s. 2. By an agreement in writing, the plaintiff's father, being registered under the Real Property Acts as the proprietor of certain lands for an estate in fee simple, agreed to let them to the defendant at the rent of 18s. per week, such tenancy to commence on 21st of July, 1919, and to continue for the term of five years certain, and in the event of its continuing beyond the expiration of the said term of five years to be thereafter determinable at any time upon one month's previous notice being given in writing by either party to the other. The rent was payable on Monday in each week during the tenancy. The defendant entered into possession under this agreement, and remained in possession thereunder, paid the rent reserved thereby to the plaintiff's father during his life, and after his death to the plaintiff as his successor in title to the reversion. On 10th July, 1922, the plaintiff served a notice on the defendant requiring him to quit the premises on 21st August, on the ground that he had failed to fulfil the conditions of the said tenancy as set out in the agreement The defendant refused to comply with the notice, and paid rent up to 21st August, which was accepted. The plaintiff then made a complaint under The Summary Ejectment Act of 1867, alleging that the tenancy had been determined by the notice to quit, and by breach of the covenant to repair and to refrain from committing a nuisance. The Police Magistrate found that the tenancy was a weekly tenancy, and adjudged the plaintiff to be entitled to possession, and ordered a warrant to issue under the statute for the purpose of securing possession of the land to the plaintiff. Held, that the tenancy could not be regarded as a weekly tenancy; that at the least a tenancy from year to year had been created, and that the Police Magistrate had no jurisdiction to make the order. Quare as to the equitable rights of the defendant under the agreement. EDWARDS v. HORRIGAN, Er parte HORRIGAN, 12th and 16th October, 1922, FULL COURT (SHAND, JAMESON, BLAIR JJ.). Counsel: A. D. Graham and M. D. Graham: Macleod. Solicitors: T. W. Biggs; Hawthorn & Lightoller. 5. Practice-Judgment Costs-Amendment of judgment by certifying for certain costs—Judgment not taken out—O. XCI., r. 22-0. XXX., r. 12. Application in Chambers for leave to amend judgment of 1st March, 1923, by certifying for costs of defendant's affidavit of discovery and counsel's refresher for one day. The defendant, at the trial, had omitted to ask that these items be certified for. The scale of costs in the Fourth Schedule (Order XCI., r. 22) only allows these items if certified for by the Judge. Douglas (solicitor) for applicant : The omission to certify was accidental. There is power to amend as judgment is not yet taken out. He cited O. XXII., r. 12, in Re Kinsey (1903, Q.W.N. 68). Macartney (solicitor) for plaintiffs did not dispute that the omission to certify for the costs in question was accidental, but submitted that the Judge had no power to amend his own order. O'SULLIVAN J. amended the judgment by certifying for costs of defendant's affidavit of documents and counsel's refresher for one day. Leave was granted to take the associate's certificate off the file for the purpose of having same amended in accordance with amendment of the judgment. FLACK & FLACK v. McCOWAN, 6th March, 1923, O'SULLIVAN J. (in Chambers). Solicitors: W. A. Douglas; Thynne & Macartney. 13 14 THE QUEENSLAND LAW REPORTER APRIL 13, 1923 6. Crown lands-Application for grazing homestead-ApplicantAgent-Attorney-The Land Acts 1910-1920, ss. 66, 68. The Land Acts, 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 to 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 further provided that in the event of B. being unable to appear 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 application and power of attorney were 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 Commissioner's Court in the manner prescribed by the statute, his application was rightly refused. Re BECKETT'S APPLICATION, 7th December, 1922, FULL COURT (SHAND, LUKIN' AND MACNAUGHTON JJ). Counsel: Henchman. Solicitors: Morris & Fletcher, for Connolly & Suthers, Townsville. 7. Landlord and tenant-Summary ejectment-Jurisdiction of justices The Summary Ejectment Act of 1867 (30 Vic., No. 27), 8. 2. Quashing order--Time for application for order nisi for a quashing order-Distance of applicant's place of residenceCalculation of distance-The Justices Act of 1886 (50 Vic., No. 14), s. 211. QUASHING Order. Under an agreement for a lease S. (the appellant) entered into possession of a selection belonging to B. (the respondent). The term of the lease was three years. S. undertook to carry out the conditions set forth therein, and if he did not do so it was provided that he should at the request of B., deliver up the selection and all stock, etc., thereon. By the agreement S. also agreed to erect certain buildings and carry on business as a dairy farmer on a share system with B. B. served on S. a notice to quit on the ground that S. was not observing the conditions. S. refused to give up possession, and on complaint under s. 2 of The Summary Ejectment Act of 1867, he was ordered to do so and to pay costs. B. entered into possession of the selection under the order of the Police Magistrate before this appeal came on for hearing. S.'s place of residence was less than 150 miles from Brisbane if the journey was made by railway to Gympie and thence by road. But the distance was over 150 miles if the journey was made to Kilkivan and thence by road for four miles. And this was the route ordinarily used by persons in travelling (vide The Justices Act of 1886, s. 211). On motion to make absolute an order nisi, granted by Shand J., at Brisbane, calling on the plaintiff and the Police Magistrate to show cause why the ejectment order should not be quashed, Grove moved the order absolute. Douglas showed cause. Douglas took the preliminary objection that the application for the order nisi had not been made within thirty days, and was too late, for the applicant resided within 150 miles of Brisbane. The Justices Act of 1886, s. 211. Per Curiam: The distance of the applicant's place of residence from Brisbane may be computed in this case by the length of the route which is ordinarily used in travelling to that place from Brisbane, and on a computation made in that manner the application was made in time. APRIL 13, 1923 THE QUEENSLAND LAW REPORTER Grove moved the order absolute. The case is governed by Loynes v. Harman (1922, St. R. Qd. 220). Douglas: The objection based on that decision was never raised in the lower court, the defendant stood by and ran the risk of obtaining a decision on the merits. SHAND J. The objection is to the jurisdiction of the Police Magistrate, and is still open to the appellant. : The appellant has now given up possession of the selection, and the quashing of the Magistrate's order would be only a brutum fulmen. In any event the respondent should not pay costs. Per Curiam: The Police Magistrate had no jurisdiction to make the order, and as the order might lead to injustice and certainly imposes the obligation on the applicant to pay costs, it should be quashed. The respondent must pay the costs of the appeal. Order absolute, with costs. BROWN. SALKALL, Ex parte SALKALL, 11th, 12th October, 1922. FULL COURT (SHAND, JAMESON, AND BLAIR JJ.). Counsel: Douglas; Grove. Solicitors: Morris, Fletcher & Cross, for J. Johnston, Murgon; Power & O'Sullivan, for Power & Power, Gympie. 8. Sugar cane -Assessment-Liability of mill owner-Sugar mill in respect of which no local Suger Cane Prices Board constitutedRegulation of Sugar Cane Prices Act of 1915 (6 Geo. V., No. 5), ss. 3, 20. Section 20, sub-sec. 3 of The Regulation of Sugar Cane Prices Act of 1915 applies to a sugar mill in respect of which a local Sugar Cane Prices Board has not been constituted as well as to sugar mills in respect of which boards have been constituted, even though no actual expenditure has been incurred solely in respect of such a mill. GILLIES. MULGRAVE CENTRAL MILL COMPANY LIMITED, 11th, 12th October, 5th December, 1922, FULL COURT (SHAND, LUKIN, JAMESON JJ.). Counsel: Henchman; Webb S.-G., Macrossan. Solicitors: Maenish & Macrossan, for MacDonnell & Hamlyn Harris, Cairns; The Crown Solicitor. 9. Justices-Practice-Service of summons-Sufficiency of affidavit of service-Reasonableness of time allowed between service and time for appearance-Order made in defendant's absenceProhibition-Quashing order-The Justices Act of 1886 (50 Vic., No. 17) Second Schedule, Form 6-The Deserted Wives and Children Acts of 1840 (4 Vic., No. 5), s. 2-The Deserted Wives and Children Act Amendment Act of 1858 (22 Vic., No. 6), s. 2. Service of a summons, issued out of a Court of Petty Sessions, was effected on a defendant at 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, 8th December, 1922, FULL COURT (MCCAWLEY, SHAND AND MCANAUGHTON JJ.). Counsel: Stanley; Fahey. Solicitors: J. Crawford; O'Shea & O'Shea. 15 16 THE QUEENSLAND LAW REPORTER APRIL 13, 1923 10. Bill of sale-Assurance of chattels Alleged sale and receipt of purchase money-Possession-The Bills of Sale Act, 1891 to 1896, s. 4—Magistrates Court-Finding-No express finding— Finding of fact by implication from other findings. The respondent company obtained a judgment against M. and seized a motor car under a warrant of execution. The appellant, on 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 received 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. Next 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 permission to remove from the car his private property. The Magistrate, on the facts, found that the appellant had never, after the alleged sale, taken or had actual bona fide possesion of the car, and ordered the execution to proceed. He also found that the document was an assurance within the meaning of s. 4 of The Bills of Sale Acts, 1891-1896. 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 implication of fact that there was no independent contract outside the document. NELLIGAN 2. WARREGO SHEEP SHEARING COMPANY LIMITED, 5th, 6th December, 1922, FULL COURT (MCCAWLEY C.J., LUKIN AND O'SULLIVAN JJ.) Counsel : McGill; Macrossan, Solicitors: Bouchard & Holland, for Mayne, Timbury & Francis, Charleville; Osborne & Waugh, for J. F. F. Lockett, Charleville. 11. Practice-Action in District Registry-Party setting down to deliver copies of pleadings to District Registrar-0. XXXIX., r. 30—0. XCV., r. 6 ( ). In a cause or matter proceeding in a District Registry, the party entering it for trial must deliver to the District Registrar two copies of the pleadings (if any) issues, particulars or of any other proceedings which show the questions to be tried. O. XXXIX., r. 30, and O. XCV., r. 6 (1), HOBSONS LIMITED v. F. W. LAMB, 16th March, 1923, CIRCUIT COURT, Warwick (MACNAUGHTON J.). Counsel: A. D. Graham. Solicitors: King & Gill; Leeper & Leeper. 12. Delinue-Demand for chattels-Unlawful refusal to deliverEvidence-Unanswered letter of demand, asking to be allowed to remove chattels, In an action in detinue, 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 unlawful failure to deliver up chattels when demanded, and that an action in detinue did not lie. Semble, a plea of not guilty is in effect a plea of non-detinet, Clements v. Flight (1846, 16 M. & W. 42) applied. NELSON AND ANOTHER V. NELSON, 6th December, 1922, FULL COURT (MCCAWLEY C.J., LUKIN AND O'SULLIVAN JJ.). Counsel: McGill; Walsh. Solicitors: Morris, Fletcher & Cross, for E. Fletcher, Goondiwindi ; T. W. Biggs, for Leeper & Leeper, Goondiwindi, |