HARDING, J.: I am of the same opinion, and of the same opinion that I was in Lethbridge v. Echlin, cited in 5 Q.L.J., 75. In this case the point brought before the Court appeared to have been raised below, and also appeared to me to appear sufficiently on the Judge's notes, as what is there stated as having taken place could only have taken place upon this point being so raised. An appeal to this Court is given by section 144 of The District Courts Act in an action when the subject matter exceeds £30; and by section 147 the power, on hearing such an appeal, is given to the Supreme Court to order a new trial, but by section 132 of The District Courts Act a District Court Judge may order a new trial. It seems, therefore, that until this is done the judgment is

if either party to an action for more than £30 the costs should follow the result, otherwise the was dissatisfied with the determination of the relief would be valueless. I think the appeal Court in point of law, or upon the admission or should be allowed with costs, and a new trial rejection of any evidence, he might appeal to the granted. Supreme Court, and the English Act quoted in the margin contained similar words. Section 144 of the present District Courts Act omits the words “in point of law," and says, simply, that any party who is dissatisfied with the judgment of the Court (in certain cases) may appeal to the Supreme Court. I think that the intention was to extend the right of appeal previously existing, or to give a remedy which in many cases would be more speedy. In some parts of the colony the District Courts do not sit for long intervals of time, and it may well have been intended that there should be speedy redress in all cases where clear injustice has been done. There is no reason prima facie why this Court should not entertain appeals from the District Court in any case in which it would entertain an appeal from a decision final and conclusive between the parties, and is of a Judge of the Supreme Court, whether the case was tried with a jury or without one. Full effect is given to section 145 of the Act by holding it to have that meaning, and I do not see any reason for limiting its meaning, or excluding the power of this Court to hear appeals in any of the specified cases in which a party is dissatisfied with the judgment of the District Court. The plaintiff comes here and says she is a dissatisfied person. She is rightly dissatisfied, inasmuch as the judgment, which necessarily follows the verdict, is plainly contrary to the merits of the case. I think, therefore, that this Court has jurisdiction to hear her appeal, and as the distress was clearly illegal, she was entitled to substantial damages. The appeal should be allowed. On the other point, the cases of Berkeley v. Elderkin and Austin v. Mills show that a judgment of the Small Debts Court cannot be sued upon in the District Court, or be set up as a defence by way of set off or counter claim in an action in the District Court. I think, therefore, that the appeal ought to be allowed, and that there should be a new trial. It has been held in England that in these cases

the subject of appeal under section 147. As a general rule, the motion for a new trial should be made in the first instance to the District Court, and this omission will be at the peril of costs on not showing special circumstances justifying its being brought to this Court in the first instance, such special circumstances being, for example, the length of time which might have to elapse before a motion could be made to a District Court Judge, or that an appeal would also combine some other ground of coming to this Court for relief. The subject matter of the cross action being the Petty Debts Court judgment, it is not a matter of set off in the District Court. Consequently, the judgment, so far as that is concerned, should be set aside; and I should say that the order should be: Set aside the judgment, or appeal allowed and new trial granted.

REAL, J.: I am of the same opinion for the

same reasons.

Solicitors for plaintiff : Lilley & O'Sullivan.
Solicitors for defendant: Powers & Robinson.

In the matter of The Stamp Duties Acts of 1866 and 1890, and in the matter of A NOMINATION

formed themselves into a limited liability company under the title of Alfred Shaw and Co., Limited. They registered the company in Melbourne, but not in Queensland. Certain of the property here AS TRUSTEES FOR ALFRED SHAW AND COMPANY, stood in the name of A. Shaw and T. E. White at

OF TRUSTEES TO T. E. WHITE AND ALFRED SHAW

LIMITED.

Foreign company - Non-registration - British Companies Act of 1886 (50 Vic., No. 31), s. 10-Real Property Act of 1861 (25 Vic., No. 14), ss. 77, 82-Nomination of trustees Stamp Duties Act of 1866 (30 Vic., No. 14), 8. 27-Agreement-Conveyance.

A document in form of a nomination of trustees from T. E. White and Alfred Shaw to T. E. White and Alfred Shaw as trustees under The Real Property Act of 1861 for Alfred Shaw and Company, Limited, was tendered to the Stamp Commissioners to fix the duty payable. The tranferors and transferees were identical. The Commissioners considered it a conveyance, and demanded duty accordingly, while the trustees claimed that it was liable to nominal duty only as an agreement.

Held, that the instrument was in law invalid as a transfer, and did not require stamp duty, but that it could not be registered as a transfer without payment of stamp duty.

the Real Property Office. The nomination of trusts was executed for the purpose of declaring that the Brisbane property should be held in trust for Alfred Shaw and Co., Limited, their heirs and assigns, for ever. The instrument was tendered to the Stamp Commissioners. For the purposes of the case the land in question had been taken as worth £3,075. The Stamp Commissioners, taking the instrument to be a conveyance of that land, had demanded duty to the amount of £30. The appellants paid the sum under protest, and deposited in court the sum of £10 as costs of the proceedings.

Lilley, for the trustees, contended that the deed was not a conveyance, inasmuch as it did not pass the property to anyone. It merely declared a trust in favor of the company. No estate passed by the instrument. Messrs. T. E. White and SPECIAL case stated for the opinion of the Court Alfred Shaw were trustees, and they simply placed under the 21st section of The Stamp Duties Act on record the fact that they were trustees. It of 1866. The matters on which a decision was was not a conveyance. Nothing passed to the desired were-(1) Whether an instrument company. The land did not vest in anybody by declared by the Stamp Commissioners to be a the instrument. [HARDING, J: If the company conveyance, and liable to duty as such, was a is unregistered in Queensland, it has no power to conveyance or an agreement within the meaning hold land here. If a conveyance were made to an of the Act; and (2) if the instrument was a unincorporated body, the land would vest in the conveyance, was it liable to ad valorem duty on Crown.] The question of the Crown's right did the full value of the property therein described, not arise. It might when they sought to make a or was it only liable to nominal stamp duty. The conveyance. [REAL, J.: If the property goes to instrument referred to was entitled a nomination the Crown by declaration of trust you would not of trustees from Thomas Edward White and have to pay stamp duty.] The land would not Alfred Shaw to Thomas Edward White and Alfred go to the Crown, Barrow v. Wadkin, 24 Beav., Shaw as trustees for Alfred Shaw and Co., 20. At present the company was merely an Limited The firm of Alfred Shaw and Co., of entity, and could not hold land in Queensland. Brisbane and Melbourne, consisted, on 1st June It could not hold an equitable interest under The last, of five persons, namely:-Alfred Shaw, Real Property Acts until it was registered, and T. E. White, A. H. Shaw, R. H. Taylor, then it had a right of action on the declaration of and J. J. Moore. They carried on business in trust. The company could take a legal estate both places as ironmongers and hardware mer- even for the purpose of passing it to the Crown chants. On 15th September last the partners through escheat, therefore it is not a conveyance.

[REAL, J.: On that basis the instrument is a the Registrar of Titles as such he would be myth.] The instrument was evidence of a justified in registering it, but before doing so he declaration of trust in favour of the company, and would be bound under section 77 of The Stamp as soon as the company was registered they could Duties Act to see that it was duly stamped as sue upon it. If nothing passed to A. Shaw and such an instrument as it purported to be when Company, Limited, under the agreement of 1st presented to him for the purpose of transfer. It June, the thing might be a nullity. [HARDING, J.: could not be registered by the Registrar of Titles The Crown might have a right to hold it. REAL, J.: until stamped as a transfer. The Court is now If you can neither take the land nor the use it is told that the Thomas Edward White and Alfred a nullity. You can't come here when you don't Shaw the transferors are the same as the Thomas exist. A British company may enter into as many Edward White and Alfred Shaw the transferees, negotiations as they like to acquire land, but it so that the instrument, being an attempted transcannot make a binding contract until it is regis- fer from the transferors to themselves, does not tered. S. 10 of The British Companies Act.] operate as a transfer at all. On the facts Until registration the company has the right to presented to us it appears that it is not a transfer have this declaration of trust put on the register. nor even an agreement, but only evidence of an It has been decided here that if a document in agreement, and does not require any stamp. But form of a transfer is presented to the Registrar if the appellants go to the Registrar of Titles he could not refuse to register it. When they get and represent to him that it is a valid transfer, to the registration stage they would have to pay he will not register it until it bears a proper stamp duty, but if they had to pay on the declara- transfer stamp. Although, therefore, on the tion of trust they would have to pay twice over. facts as now stated, the instrument does not [GRIFFITH, C.J.: Why did you take it to be appear to require any stamp, the appellants cannot stamped?] Because it is subject to nominal duty make use of it for the purpose of registration as an agreement. There is no attempt to evade without stamping it. stamp duty. When the trustees convey to A. Shaw and Co. they will have to pay stamp duty on the conveyance. The decision of the Commissioners that this instrument was a conveyance is erroneous, and should be revised, and the money paid should be returned to the persons who lodged

it.

REAL, J.: I am of the same opinion. The instrument is clearly not a transfer or conveyance within the provisions of The Stamp Duties Act, and not a transfer within the meaning of The Real Property Act. But, as pointed out by the learned Chief Justice, it is in form a transfer, and were it not for the information given to us that White Byrnes, A.G., and Sydes, for the Stamp Com- and Shaw are identically, and the transferors and missioners, stated that the Commissioners had transferees are identically, the same persons, of decided that the instrument being in form a course it would have to be treated as a transfer, conveyance was liable to duty. Points had been and it would be liable to the stamp duty on rai ed as to the validity of the document. The instrument seemed to be neither an agreement nor

a conveyance.

transfers. Being identical persons, it has not been seriously contended by the appellants, nor by the representatives of the Commissioners, that GRIFFITH, C.J.: The instrument in this case is it is a document which is authorised by sections in form a nomination of trustees from Thomas 77 and 82 to be registered, but it appears to be Edward White and Alfred Shaw to Thomas the practice to register such documents. And Edward White and Alfred Shaw as trustees under why the Registrar of Titles registers them is that The Real Property Act of 1861 for Alfred it has been decided in this Court that when a Shaw and Co., Limited; and if it were taken to document is presented in form a transfer, he is

not permitted to ascertain by evidence anything notwithstanding the findings of the jury, to enter about it, consequently this document presented to a verdict for the defendant, or in the alternative him would be a nomination of trustees by persons that a judgment of nonsuit should be entered, or who happen to have the same name. We are that a new trial should be entered on the grounds informed that as a fact they are identical. Con- that (1) the findings of the jury were against the sequently we are put in possession of facts which evidence adduced at the trial; (2) that such show that the instrument does not come within evidence entitled the defendants to judgment; (3) the provisions of sections 77 and 82 of The Real that the Judge omitted to give proper and Property Act, and therefore not an instrument of sufficient directions as to the negligence of the that description But these are circumstances defendants.

which, on its presentation to the Registrar of The action was brought by Charles Sydney Titles, did not come before him, and coming before Wilson, a foreman of workmen employed at a him as an unstamped instrument for the nomina-goods-shed in Charters Towers, against J. Harvey tion of trustees, he was justified in refusing to and Sons, butchers, at the same place, for injuries register it. Therefore I think the particular caused by being knocked and gored by a bullock instrument is not liable to stamp duty.

HARDING, J.: It is neither a conveyance nor a transfer, and cannot be registered without stamps. No costs on either side should be allowed. The duty and deposit ought to be returned.

GRIFFITH, C.J.: The appellants succeed in point of form, and must get their deposit back. The first question is answered-"neither; but it cannot be registered unless stamped ad valorem." The deposit will be returned; no costs allowed. Solicitors: Lilley & O'Sullivan. Solicitor for Commissioners: J. Howard Gill.

WILSON v. HARVEY AND SONS.

belonging to the defendants. On 12th September, three drovers started at daylight from a station eighteen miles from Charters Towers to drive twenty-seven head of cattle to Charters Towers. About 4.30 p.m., when a short distance from the town, a red bullock in the mob became tired and would not go on. The animal was stubborn, and when near the town made a charge at a child, who escaped. Then the bullock tried to get away, but as it was impossible to get it along, Harvey borrowed a gun from a man White, and fired at the bullock, which staggered. Harvey fired again and brought the animal to its knees. Thinking he had killed it, Harvey got off his horse and went towards it. The bullock, however, got up and ran towards a creek near White's house. Harvey handed the gun to a man named Morrison, who followed the animal and fired another shot at it. Morrison fired again and killed it. A man named Wilson, attracted by the shots fired by Harvey, had left his house to see what was the matter. It was then dark. As Wilson approached the spot, he saw the bullock coming towards him, its eye shining like that of a wild beast. The bullock knocked him down, gored him, and ran on Held, that there was evidence of knowledge that the animal was dangerous before the injury, and that as during a short way. Wilson crawled along and escaped that time the defendants' servants drove it through in the dark. He was injured, and incurred a populous town, and did not take precautions for the protection of the public, the defendants were expense for medical attendance. The jury found liable for negligence. for the plaintiff with damages and judgment MOTION to set aside a judgment of Chubb, J., and was entered accordingly.

Negligence-Ferocious Bullock--Scienter. Cattle were being driven from a station to Charters Towers under the care of three drovers in the defendants' employment. When near the town, a bullock made a charge at a child, who escaped. A little further on, it became impossible to get the bullock along, and H decided to shoot it. He borrowed a gun and fired at it twice. The bullock fell, but was not killed. It got up and ran towards the house of W, who, attracted by the noise of the gun, came out to see what was the matter. He was gored and knocked down by the bullock and injured. The bullock was subsequently shot.

Solicitor for respondents: Down, agent for held 1,950 shares in a Pyrites Company at Charters Costello.