settlement of disputes, including the subject
matter of the action, had been made. The
defendant notified the non-success of these
negotiations in May, 1910, and five days later
plaintiff accepted, under O. XXVI., the total
sum paid into Court in satisfaction of his claim.
Held, that, on the construction of the two
orders granting the adjournments of the trial,
whatever the plaintiff had a right to do on the
date of the first adjournment, he could do at
any time during the postponement of the trial,
and that therefore it was competent for him
to accept the money paid into Court in satis-
faction of his claim, and thus end the action.
FRACKELTON v. MUIR AND OTHERS F.C. 369
6. -Pleading-Landlord and tenant-Action
for recovery of possession of land—Alternative |
claim for declaratory judgment as to nature of
tenancy-Motion for judgment on admissions in
the pleadings-Costs-Discretion-O. XXXVI.,
r. 5-0. IV., r. 11.
By the amended statement of claim the
plaintiffs claimed possession of certain premises
and mesne profits on the ground that the
defendant had continued in occupation of the
premises after the time when he ought to have
vacated them, in pursuance of a notice to quit.
This claim was based on an allegation that the
defendant had been a tenant from week to
week or alternatively from month to month.
The plaintiffs also alleged in the alternative
that the defendant was a tenant from year
to year, and alternatively claimed a declaration
to that effect. The amended claim contained
no allegation that the defendant disputed that
he was a tenant from year to year, and, in
fact, admitted such a tenancy in his defence,
which, however, did not contain any admission
of facts constituting the cause of action for
possession and mesne profits. On the amended
pleadings the plaintiffs gave notice of motion
under O. XXXVI., r. 5, and judgment was
entered for the plaintiffs on the admission
therein. No reply was made to the amended
defence.
Held, that the plaintiffs were not entitled
to the declaration claimed.
The jurisdiction of the Court to make a
declaration at the instance of a plaintiff under
O. IV., r. 11, only exists where there is a good
cause of action, or, in other words, an existing
right.
KING & KING v. TYAS ..
F.C. 345
-Striking out pleading-Right of next
of kin to bring action.
FITZGERALD v. ROGERS 1910, Q.W.N. 1
STAY OF PROCEEDINGS.
See HUSBAND AND WIFE. 2.
THIRD PARTY PROCEDURE.
8. -Discharging order-Time for making
application for leave to issue third party notice
Right of plaintiff to object to joinder of third
parties-0. XVI.
FRACKELTON v. MUIR AND OTHERS.
1910, Q.W.N. 27
PRINCIPAL AND AGENT-
1. --Crown lands-Prickly pear selection,
agreement for sale-Refusal of Minister of Lands
to permit transfer-Appeal from District Court—
No reason assigned for decision-Reasonable
evidence to support decision.
By s. 50 of 2 Edw. VII., No. 18, and s. 250
of 61 Vic., No. 25, prickly pear selections are
not transferable without the permission of the
Minister for Lands. The plaintiffs, as agents
for the defendant, who was the holder of such
a selection, entered into an agreement to sell
the selection to G. They received the purchase
money, and in a document acknowledging its
receipt, stated that it was to be held by them
till the transfer was approved by the Minister,
and that if the transfer could not be completed
within a reasonable time, they would refund
the money. Next day the defendant signed a
transfer of the selection to G., and the plaintiffs
handed the purchase money over to the defend-
ant, who said that the transfer would be com.
pleted without difficulty. The Minister for
Lands refused to permit the transfer, and plain-
tiffs repaid to G. on his demand the sum of
£60. They then demanded £57 from the
defendant, and on his refusal to pay took
proceedings in the District Court at Dalby.
Judgment was given for the defendant.
On appeal (held), on the whole evidence,
that the plaintiffs could recover from the
defendant the money they had paid to him.
WATT AND CLARKE v. DE STOKAR.
-Vendor and purchaser—Instructions
to purchase real estate-Purchase with reservation
of timber-Authority of agent to sign contract—
Fraud of agent permitted by indiscretion of
principal.
The appellant authorized C. to purchase
certain land from the respondent at £2 per
acre if C. approved of the purchase. C. in-
spected the land, and, after some negotiations,
a document was signed by the respondent
and by C., as the appellant's agent, by which
the respondent acknowledged that he had sold,
and the appellant that he had purchased, the
The purchase
property for £1 178. per acre.
money was paid, and the land transferred.
During a period of four months after the
completion of the purchase, the respondent
PROBATE AND ADMINISTRATION-Contd.
executrix of codicil-Grant of probate limited to
the purposes of the different dispositions.
In re HORTON
1910, Q.W.N. 30
And see EXECUTOR AND ADMINIS-
TRATOR.
RELIGIOUS, EDUCATIONAL, AND CHARIT-
ABLE INSTITUTIONS ACT-
See WILL. 4.
PRINCIPAL AND AGENT-Continued.
removed timber from the land. The respondent
gave evidence that in selling the land, he
expressly reserved (with the concurrence of
C.), the right to remove timber for four months,
and that this condition was excluded from the
signed memorandum because it was contained
in the offer of sale by him, and he was told RAILWAY-Refreshment room.
by Campbell that it was unnecessary to insert
it in the memorandum also. The jury found
it was a term of the contract that the respondent
should have the right to remove timber for
four months from the completion of the con-
tract; that in allowing this term C. was acting
within the scope of his authority, but that it
was omitted from the memorandum by C.'S
fraud, and that the appellant did not know of the
existence of this term of the contract. The
respondent paid C. a commission.
Held, there was no evidence on which it could SAVINGS BANK-Deposit of money in.
be found that C. was agent for both parties;
that there was evidence to support the finding
that C. was acting within the scope of his
authority in authorizing the respondent to
remove the timber; that the memorandum
was not extended to embody the whole of the
contract, but that if on the contract so limited,
respondent was liable to the appellant, appellant
was liable in damages to an equal amount to
the respondent for loss caused by the fraud
of appellant's agent acting within the scope
of his authority.
CRIBB v. DWYER
And see CONTRACT. 1, 2.
And see INSOLVENCY.
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SHEARERS AND SUGAR WORKERS-The
Shearers and Sugar Workers Accommodation
Act of 1905 (5 Edw. VII., No. 9)—The Shearers
and Sugar Workers Accommodation Act Amend-
ment Act of 1906 (6 Edw. VII., No. 31)—
"Accommodation "-Validity of regulations made
under the Acts-Operation of the Acts.
Regulations Nos. 14, 21, and 26 of the
Regulations under The Shearers and Sugar
Workers Accommodation Acts, 1905-1906, are
intra vires of s. 17 of the Principal Act of
1905 (s. 5 of the Amending Act of 1906), and
valid.
When proceedings for a breach of the Regula-
12 of the Principal Act of 1905 do not apply,
tions are taken, the provisions of ss. 11 and
and an employer is liable to a penalty for a
breach of the Regulations whenever he is
of the Amending Act of 1906 does not extend
summoned, and the breach proved. Section 7
to exempt an employer from liability to perform
might reasonably have been ordered to do the
a duty imposed by the Regulations when he
of the Principal Act of 1905.
same act under the provisions of ss. 11 and 12
O'BRYEN v. GREENAWAY, Ex parte GREEN-
F.C. 288
1. Jurisdiction of Justices-Claim for
possession of land by transferee of landlord-No
evidence of relationship of landlord and tenant
between claimant and tenant-The Summary
Ejectment Act of 1867 (31 Vic., No. 27), 8. 2.
VOLUNTARY SETTLEMENT-Continued.
Held (per Cooper C.J. and Shand J.), that
this was only a promise to confer upon the
defendants, or either of them, a tenancy of the
farm at the will of the plaintiff.
Held (per Real J.), that the promise ought
to receive as wide a construction as possible,
and that it conferred an estate on the step-
daughter for her life, if she so long continued to
reside on the premises.
A landlord not being the person who leased
land to a tenant thereon, but holding the land
by virtue of a transfer from the original lessor,
may recover possession of the land in a summary
manner under The Summary Ejectment Act of
1867, if no question of title to the land is in
dispute, or if the tenant, by payment of rent
or otherwise, is estopped from denying the land- WILL
lord's title.
THE KING V. THE JUSTICES OF CAIRNS AND
REDDAN, Ex parte O'CALLAGHAN. F.C. 375
SCHLIEMANN v. THOMSEN AND THOMSEN.
-Verbal agreement between wife and
husband to purchase lands-Request to husband
2. -Landlord and tenant-Mortgagor and to acquire lands-Transfer of lands to wife and
mortgagee - Registered proprietor - Attornment husband as joint tenants-Promise by wife to
clause-Default-New tenancy-Summary Eject-pay one-half of purchase money to husband-
ment Act of 1867 (31 Vic., No. 27), 8. 2.
Necessity for Memorandum-Application of
FEEZ AND FEEZ v. CARROLL 1910, Q.W.N. 3 Statute of Frauds and Limitations of 1867 (31
TRUSTEES-Accounts.
See EXECUTOR AND ADMINISTRATOR. 2.
1. -Threatening, abusive, or insulting
language with intent to provoke a breach of the
peace-Vagrant Act of 1851 (15 Vic., No. 4), 8.6.
BUNDY v. CLEGG
1910, Q.W.N. 2
2. -Using threatening language with intent
to provoke a breach of the peace-Vagrant Act of
1851 (15 Vic., No. 4), s. 4.
BEUTAL v. TURNER, Ex parte TURNER.
Vic., No. 22), s. 5—The Real Property Act of
1861 (25 Vic., No. 14), s. 40.
In 1905, the testatrix and her husband
verbally agreed that if the husband would buy
two pieces of land adjoining the house they lived
in, and complete the purchase of that house, and
would place the property, as a whole, in their
joint names, as joint tenants, she would at a later
date pay half the total cost of the two properties.
and himself were registered as joint tenants
The husband purchased the land, and his wife
thereof. Part of the purchase money-viz.,
£640 was raised by mortgage of the lands
executed by both the husband and wife. In
1907, he also purchased the house in which they
lived, and transferred the same to the testatrix
and himself as joint tenants. In order to raise
the purchase money, £700, and to make certain
improvements, this land was mortgaged by the
1910, Q.W.N. 28 husband and wife to secure £900 and interest
thereon.
VOLUNTARY SETTLEMENT-Agreement to
give land contained in a letter written by illiterate
person-Specific performance-Meaning of agree
ment doubtful.
1910, Q.W.N. 35
3. -Using abusive language with intent to
provoke a breach of the peace-Vagrant Act
of 1851 (15 Vic., No. 4), s. 6.
CLARISS v. LAMB, Ex parte LAMB.
The plaintiff was the owner of a farm in
Bundaberg, on which a cottage was erected.
On visiting his step-daughter and her husband,
the defendants, in Sydney, he found them in
poor circumstances, and on his return to
Bundaberg wrote to his step-daughter, saying
that she would do better if she came to Bunda-
berg, and that he would give her the farm of
10 acres, which would be a nice home for her;
that he would give it to her free of cost, and
no rent. Acting on this promise, the defendants
broke up their home in Sydney, removed to
Bundaberg, and took up their residence on the
farm.
Held, that this agreement did not fall within
s. 5 of The Statute of Frauds and Limitations
of 1867.
Held, also, that the husband and testatrix
did not hold the land as tenants in common,
and that whether they were tenants by entireties
or joint tenants, they were seised "per tout,"
and not per my et per tout," and that there-
fore the incident of survivorship attached
to their joint title.
Held, also, that the estate of the testatrix
was indebted to her husband in respect of one-
half of the sums paid as purchase moneys, in-
cluding that secured by mortgage, and one-half
of all sums paid by the husband as interest
on the mortgages.
QUEENSLAND TRUSTEES LIMITED AND AN-
OTHER v. CONCANON AND ANOTHER F.C. 162
-Gift to attesting witness-Gift to
brother "-Partial intestacy-The Succession Act
of 1867 (31 Vic., No. 24), s. 47.
By his will a testator directed, After pay-
ment of all my just debts, funeral, and testa-
mentary expenses, that all my estate be con-
verted into money, from the sum total of which
I devise and bequeath to my brother and P.
Marland." P. Marland was one of the attesting
witnesses of the will. The testator had only
one brother living at the time of his death,
but had two half-sisters and a half-brother.
Held (Shand J. dissenting), that the intention
of the testator was to dispose of his whole
estate equally between his brother and P.
Marland; that the gift to the latter failed;
that the brother was entitled to half of the
estate; and that there was an intestacy as
to the other half.
F.C. 378
3. Charitable bequest-Rule against per-
petuities—Gift of residue “to be expended wholly
or in part as the Archbishop may judge most
conducive to the good of religion in this diocese ".
Uncertainty.
A testator, who was a Roman Catholic
clergyman in charge of the Mission at Dalby,
bequeathed his furniture, library, horse, buggy,
and harness, to his successor in charge of the
Roman Catholic Mission; and on his death or
removal to his successor, and so on, for their use.
The testator directed that the residue of his
estate should be handed to the Roman Catholic
Archbishop of Brisbane and his successors, to
be used and expended, wholly or in part, as
such Archbishop may judge conducive to the
good of religion in this diocese.
Held, that both bequests were good charitable
gifts.
F.C. 265
4. -The Religious, Educational, and Charit-
able Institution Act of 1861 (25 Vic., No. 19), s.
3-The Religious, Educational, and Charitable
Institutions Act of 1861 Amendment Act of 1895
(59 Vic., No. 4), ss. 2 and 3-Charitable gift
to religious institution-Gift to a congregation
forming an integral part of the Church of England
-Effect of incorporation of Synod of Church of
England.
Gifts were made to trustees for the benefit of
certain congregations which formed integral
parts of a voluntary association, the Church
of England in Queensland. This association
was not incorporated under The Religious,
Educational, and Charitable Institutions Act of
1861, but a body, called the Synod, consisting
of certain clergy and laity of the Church of
England in Queensland, was incorporated under
the Act, as the governing body of the whole
Church.
Held, that these gifts were not made to an
institution incorporated under the Act, and that
s. 3 thereof was inapplicable.
Held, also, that the gifts were not made in
favour of the Church of England, or of the
Synod, but were charitable gifts in favour of
certain unincorporated religious bodies, and
were therefore valid.
Re MARY PEATTIE, DECEASED, KING AND
ANOTHER v. THE ATTORNEY-GENERAL AND
OTHERS
. F.C. 276
WORKERS' COMPENSATION-
1. Worker or independent contractor-The
Workers' Compensation Act of 1905 (5 Edw. VII.,
No. 26), ss. 2, 4.
B. and his son were engaged by the respond-
ents to fell pine on a certain section of land,
and to do everything necessary to prepare the
pine logs for carriage, at the rate of 6d. per
every hundred superficial feet, and a bonus
of a specified amount if the work was well
done. No time was fixed within which the work
was to be completed, and they were at liberty
to commence or cease work at any hour they
chose. They were allowed to employ other
labour only in the event of extra labour being
required to keep up the requisite supply.
They were bound to prepare sufficient timber to
keep the mill supplied, but were not at liberty
to cut more timber than was necessary for that
requirement. Of these matters the respondents
were sole arbiters. While the work was in
progress, B. and his son did other work at the
request of the respondents, and received seven
shillings each per day therefor. While engaged
in felling pine, an accident occurred, and B.'s son
was killed.
Workers' Compensation Act of 1905, and that
the defendants were liable to pay compensation
Held, that he was a worker under The
BAGNALL V. LAHEYS LIMITED
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2. -Injury to servant-Acceptance of pay-
ment of compensation-Election Evidence of
election-Direction to jury-The Workers' Com-
pensation Act of 1905 (5 Edw. VII., No. 26), s. 6.
GRIFFITH V. CARRINGTON UNITED MINES,
LTD.
1910, Q.W.N. 41
POWELL AND CO., PRINTERS, LIMITED
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