SENIOR v. KINGSTON11 VLR 1
Agreement — Will — Doubtful points of law — Family compromise.
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Cases reported in this volume of the Victorian Reports
Agreement — Will — Doubtful points of law — Family compromise.
Practice — Sale under decree — Commission to executors — "The Administration Act 1872" (No. 427), sec. 25.
Mortgage — Motion for liberty to proceed, notwithstanding the appointment of a receiver.
Statute of Frauds — "Transfer of Land Statute" (No. 301), s. 42 — Transfer by way of mortgage — Lease with right of repurchase — Cancellation — Right of representative of lessee — Evidence of interested party.
Practice in Equity — Administration suit — Death after decree — Supplemental bill.
Will — Discretion of trustee.
Will — Construction — Intermediate rents of real estate — Intestacy — Act No. 787, ss. 1, 7 — Retrospective Act — Illegitimate child — Guardian appointed by mother.
Will — Construction — Annuity — Legacies — Priority — "In the first place" — "In the next place."
Practice — Legatees unknown — Advertisement for claimants.
Will — Construction — Gift of income in perpetuity.
Trade-mark — Infringement — Importation of spurious goods — Injunction — Undefended action — Affidavits — Costs.
"Common Law Procedure Statute 1865" (No. 274), s. 266 — Agreement to refer to arbitration — Application by defendant to stay proceedings.
Practice — Security for costs.
"Local Government Act 1874" (No. 506), sec. 55 — Municipal election — Notice of disqualification of candidate — Declaration required from "person elected."
"Local Government Act 1874" (No. 506), s. 399 — Duty of shire council to keep roads open — Right to cut down fence across road — Mandamus — Existence of another legal remedy.
Supreme Court Rules 1884, Ord. XIX. r. 9, Ord. LXVI. r. 2* — Pleading over ten folios — Printing.
Public health — Act No. 310, s. 47 — Forming private lane — Expenses — Liability of owner — Demand of payment.
Negligence — Duty on person inviting another upon premises — Liability of landlord to stranger for want of repair — Active personal negligence — Acknowledgment of carelessness.
Supreme Court Rules — Power to depart from — Reg. Gen. 11th April 1874 — Articled Clerk — Matriculation — University degree.
"The Judicature Act 1883" (No. 761), s. 13 — Reg. Gen. 3rd Dec. 1872, R. 22 — Terms as a measure of time.
"The Amendment of Informalities Act 1884" (No. 810), s. 6 — Amendment by striking out portion of punishment ordered — Minute of conviction.
"The Criminal Law and Practice Statute 1864" (No. 233), s. 48 — Indecent assault on girl under twelve — Mens rea — Intention of Legislature.
Married woman sued as executrix — Husband a necessary party — "County Court Statute 1869" (No. 345), sec. 120 — Practice on allowing appeals from County Court — Rehearing before Supreme Court Judge without a jury.
Trover — Conversion — Right to immediate possession — Reversionary interest.
Practice Insolvency — New assignee — Notice to creditors.
Practice Insolvency — 7 Vict. No. 19, s. 13 — Appointment of new assignee — Motion — Notice — Materials required.
Practice Probate — Substituted executorship.
Practice Probate — Lunacy of administrator — Administration de bonis non during lunacy — Service of notice.
Practice Probate — Bona notabilia — Shares in companies.
"The Administration Act 1872" (No. 427) s. 28 — Administration bond — Assignment of bond — Creditor — Breach of administration bond — Costs — General words in a deed.
Practice Probate — Foreign executors — Power of attorney.
Administration — Next-of-kin — Proof of Marriage of deceased.
Agreement — Will — Doubtful points of law — Family compromise.
Dissolution of marriage — Desertion — Deed of separation — Recital — Estoppel.
Practice Matrimonial — The Divorce and Matrimonial Rules 1885, r. 81, sched. 8 — Affidavit — Supreme Court Rules 1884, O. XXXVIII., r. 10.
"The Justices of the Peace. Statute 1865" (No. 267), s. 48 — Set-off — Duty of justices — Affidavits from justices.
"The Victorian Railways Commissioners Act 1883" (No. 767) — Liability of Commissioners on contract by Board of Land and Works — Construction of contract — Arbitrators under determined contract — Appearance under protest — Waiver — Motion to set aside a null award.
Vendor and purchaser — Easement — Right to use water pipe.
"Transfer of Land Statute" (No. 301), ss. 132, 135 — Recalling certificate — Discretion of Registrar — Refusal to state grounds.
Act No. 532, s. 1 — "Pretended game of chance."
"Local Government Act 1874" (No. 506) ss. 295, 296, 301 — "Transfer of Land Statute" (No. 301) s. 42 — Lease from council for non-payment of rates — Registration — Practice — Removal of exhibits.
Contributory negligence — Questions for the jury — Negligence of plaintiff of tender years.
Appeal from County Court — Jurisdiction of County Court to entertain counter-claim — "The Judicature Act 1883" (No. 761), ss. 56, 71.
Married woman — Imprisonment — "The Licensing Act 1876" (No. 566), s. 54.
"The Landlord and Tenant Statute 1864" (No. 192), s. 84 — Action for excessive distress — "Special action of trespass or on the case" — "Rent or sum justly due."
"The Mining Companies Act 1871" (No. 409) — Ss. 50-57 — Mining Company — Shares — "Absolute forfeiture" — Liability to calls — Manager's right to sue.
"Local Government Act 1874" (No. 506) — ss. 405, 408 — Power to alter level of street — "Levelled" — "Paved" — Construction — "One month at the least" — Notice by advertisement twice inserted.
"The Trade Marks Statute 1864" (No. 221) — "The Trade Marks Registration Act &c. 1876" (No. 539) — "Trade Mark" — Word descriptive only — Right to restrain use of name — Practice — "Supreme Court Rules 1884" — Appeal — Copies of affidavits.
"The Justices of the Peace Statute 1865" (No. 267) — Set-off — Jurisdiction — Duty of Justices — Costs.
Criminal trial — Rape — Evidence — Previous acts of familiarity.
"The Police Offences Statute 1865" (No. 265), s. 26 — Two convictions for the same offence — Statements not on oath — Certiorari.
Evidence — Solicitor and client — Privileged communication — Communication in furtherance of fraudulent or criminal purpose — Practice in determining question of privileged communication.
"The Justices of the Peace Statute 1865" (No. 267), ss. 52, 57 — "The Police Offences Statute 1865" (No. 265), s. 26 — Insulting behaviour in a public place — Indictable offence — Issue of warrant on Sunday — 29 Car. II., c. 7, s. 6.
"The Police Offences Statute 1865" (No. 265), s. 14 (ii.) — "Local Government Act 1874" (No. 506), s. 418 — "Near" a highway — Question of law, not of fact.
"The Justices of the Peace Statute 1865" (No. 267), s. 150 — Appeal case stated by justices — Duty to transmit within fourteen days — Jurisdiction of justices to alter case stated by them.
"The Licensing Act 1876" (No. 566), ss. 38, 44 — Proclamation of necessity for license in "district" — Objection that no necessity in "neighbourhood." Practice — Act No. 565, s. 10 — Affidavit by licensing magistrate in opposing motion for mandamus.
Club — Proprietary interest — Expulsion by committee — Jurisdiction.
Contract — Prize — Offer by circular — Conditions subsequently imposed — Unwritten award.
Practice — Undefended action — Affidavit verifying statement of claim.
Practice — Undefended action — Costs — Motion for judgment.
"Mining Statute 1865" (No. 291), ss. 36, 101 (iii.), 177 — Water license — Jurisdiction of Warden.
Will — Construction — "Money" — Deposit receipts.
Religious association — Constitution — Landlord and tenant.
"The Companies Statute 1864" (No. 190), ss. 111 (iii.), 121 — Voluntary winding-up — Delivery of books and papers — Exparte order — Resolution to wind up — Unsatisfactory state of affairs.
"Local Government Act 1874" (No. 506) — ss. 52, 257 — Occupation of rateable property by servant of owner — Liability to be rated — Qualification as councillor.
"The Marriage and Matrimonial Causes Statute 1864" (No. 268) — Practice Matrimonial — Dissolution of marriage — Alimony pendente lite — Foreign domicil — Jurisdiction.
"Insolvency Statute 1871" (No. 379), s. 113 (ii.) — Preferential debt — "Clerk or servant" — Commercial traveller — Costs.
"Insolvency Statute 1871" (No. 379), secs. 135, 136, 138 (i.) — Refusal of certificate — Not keeping accounts — Liability of partner — Dispensation with payment of 7s. in the — Appeal to Full Court — Materials — Costs.
"Insolvency Statute 1871" (No. 379), s. 147 — Uncertificated insolvent — After-acquired property — Right of subsequent creditor.
Practice Probate — Revocation of administration — Fresh grant within three months.
Practice Probate — Commission to executors — Continuing business of testator.
Practice Probate — Administration to married woman.
Practice Probate — Executor's commission.
Practice Probate — "The Administration Act 1872" (No. 427), s. 36 — Executrix not proving or renouncing — Order nisi — Dispensing with affidavit of publication.
Practice Probate — Executor according to the tenor.
Practice Probate — Administration to husband of person entitled.
Practice Probate — Supreme Court Rules 1884, Ord. XXXVIII., r. 9, Ord. LXVIII., r. 1 — Affidavit — Form of jurat.
Practice Probate — Company executor — Reserving leave to come in and prove.
"Lunacy Statute" (No. 309), s. 154 — Act No. 342, s. 3 — Sale of lunatic's lands — Application of proceeds.
Vendor and purchaser — Sale of land — Specific performance — Agent's authority — Sale on mortgage — Profit by agent — Cancellation of lease — Practice — Costs — Re-hearing.
Act No.308 — Trust for A. or his "representatives" — Vested interest — Parties — Executor who has not proved.
Agreement — Will — Doubtful points of law — Family compromise.
"Supreme Court Rules 1884," Ord. LXIV. r. 7 — Extension of time — Appeal from final judgment.
"The Companies Statute 1864" (No. 190), s. 64 — Joint stock company — Directors — Unknown disqualification — Validity of acts done.
Supreme Court Rules 1884, Ord. XXXVI. r. 6 — Trial by jury — Ex parte application — Time within which application for a jury to be made — Discretion of judge.
"Insolvency Statute 1871" (No. 379), s. 58 — Right of insolvent to sue trustee on cause of action accruing before insolvency.
"The Stamp Duties Act 1879" (No. 645), s. 51 — "Promissory Note" — Mortgage containing covenant to pay — Act imposing duties — Construction — "Transfer of Land Statute" (No. 301), s. 116 — Caveat by mortgagor.
Bigamy — "The Criminal Law and Practice Statute 1864" (No. 233), s. 54 — Absence during seven years — Knowledge of wife's existence — Onus probandi.
Sunday entertainments for gain — 21 Geo. III. c. 49 s. 1 — Whether in force in Victoria — 9 Geo IV. c. 83 s. 24 — Test of applicability of Act.
"The Pounds Act 1874" (No. 478), ss. 28, 29 — Complaint for illegally impounding or to recover excessive rates — Statutory conditions to be complied with.
"The Public Health Amendment Statute 1883" (No. 782), ss. 159, 160 — Local Board of Health — Liability to be sued as a corporation — Health officer — Destruction of infected clothing, &c.
Slander — Privileged occasion — Deputation to Cabinet Minister of persons interested — Introduction of reporters — Pleading — Supreme Court Rules 1884 O. XIX. r. 4 — Statement of defence of privilege — Proper mode of objecting for insufficiency.
"The Life Assurance Companies Act 1873" (No. 474), s. 37 — "Property and interest" of an assured — Voluntary settlement of policy — Insolvency — Death — Practice — Chief Clerk's Certificate — Confirmation — Re-opening — Appeal to Full Court.
11 Vic. No. 32, s. 2 — "The Statute of Wrongs 1865" (No. 251), s. 14 — Trustee and c.q.t. — Constructive trustee — Administratrix — Feme covert — Receipt — Appeal on question of fact.
Act No. 627, ss. 8, 9, 17, 22 — Curator of felon's estate — Assignment of property after completion of sentence — Trust property — Practice — Want of parties.
Criminal law — Unnatural offence — "Assault" — Consent of party assaulted.
Act No. 319, s. 3 — Order or conviction by justices — Drawing-up — Pronounced in party's presence — Service not necessary.
Certiorari — Practice — Grounds to be stated — Objections not going to jurisdiction — "The Discipline Act 1870" (No. 389), ss. 2, 4, 5, 12 — Persons "appointed" not required to take oath — Competency to sit on court-martial — Governor-in-Council — Mode of appointment by.
"`Duties on the Estates of Deceased Persons Statute 1870" (No. 388) s. 7 (ii.) — Debts in Victoria secured on assets in another country.
"The Distillation Act 1862" (No. 147), ss. 121, 161 — Imprisonment — Conviction.
Appeal from Justices — Mistake of fact involving mistaken application of principle.
Infant — Civil proceedings before justices — Next friend.
Practice — Supreme Court Rules 1884 — Ord. XXIII. Rs. 1, 4 — Time for delivering reply to counter-claim.
"County Court Statute 1869" (No. 345), s. 100 (iv.) — Agreement to exchange lands — Specific performance — Jurisdiction of County Court — Statutes conferring jurisdiction — Construction.
Practice Supreme Court — Security for costs — Absent plaintiff — Real estate in colony.
"Printers and Newspapers Registration Statute 1864" (No. 212), ss. 10, 19, 26, 27 — "Newspaper" — Recognisance — Publication — Penalties — Pleading — Contra formam statuti — Practice — Questions of law reserved at trial — Motion for judgment.
"Real Property Statute 1864" (No. 213), s. 18 — Ejectment — Statute of Limitations — Discontinuance of possession — Title of occupant at end of fifteen years.
"Real Property Statute 1864" (No. 213,) ss. 18, 19, 43 — Ejectment — Statute of Limitations — Discontinuance of possession — Onus of proof — Presumption arising from possession — How rebutted — Title on extinction of that of rightful owner.
"Local Government Act 1874" (No. 506), s. 253 — Rateable property — "Mines" — Building on land held for mining — Exemption from rates.
Lessor and lessee — Breach of agreement by lessor to put in repair — Measure of damages — Practice — Plaintiff successful on claim and defendant on counter-claim — Costs how allotted.
"The Companies Statute 1864" (No. 190) — Voluntary winding-up — Order directing payment of call — Amendment — General meeting — Quorum — Forfeited shares in name of manager.
Charitable trust — Inebriate retreat — Charge for admission — Sale of trust property — Action by Attorney-General — Relator.
"The Companies Statute 1864" (No. 190), ss. 73, 75 — Winding-up — Debt — Bon fide dispute — Amount of debt.
"The Trade Marks Registration Act 1876" (No. 539) — Trade Mark — Registration — Objection — Partnership name — Practice — Special case — Right to begin.
Practice Probate — "The Administration Act 1872" (No. 427), s. 36 — Solicitor executor — Commission — Prospective order — Certificate of Master-in-Equity — Order without prejudice.
Executors' commission — Neglect to keep accounts — Accountant's fees — Guarantee commission — Personal estate account — Investments — Costs — Severance of executors — Interlocutory motions.
County Court action — Estoppel.
Administration — Allowance to executors — Tombstone — Accountant's fees.
Practice — Infant's property — Corpus — Maintenance.
Investment of trust property — Government debentures or securities — Mortgage of real estate — Fixed deposit in bank.
Practice — Death of one defendant — Abatement of suit — Payment of money out of Court.
Practice — Stay of proceedings on judgment — Suppression of material facts — Inability to satisfy judgment — Order set aside.
Agreement — Will — Doubtful points of law — Family compromise.
Practice Matrimonial — Filing Judge's Order — Lapsed Order — Evidence taken under, inadmissible — New trial — Distinct issues of adultery — Rules of Court — Costs — New trial — Rejected evidence irregularly getting to jury — Discovery of fresh evidence — Verdict against evidence — Suppression by witness of material facts — Evidence — Opinion of witness as to adultery having been committed — Acts of adultery not alleged — Statement by co-respondent not appearing — Impropriety of respondent after last alleged act of adultery — Re-calling a witness for further cross-exmination — Witness subpnaed not appearing — Cruelty — Costs — Sum paid in for respondent's costs increased during trial.
"Mining Statute 1865" (No. 291), s. 16 — Leasing Regulations 27th January 1871, clause 4 (d) — Mining claim under public street — Permit to mine — Mining lease — Notice — Person in occupation — Act No. 446, s. 4 — Default.
"The Mining on Private Property Act 1884" (No. 796), ss. 18, 22, 27 — Claim for compensation — Parties — Damages — Evidence — Costs.
Creditor's claim made after expiry of advertisement — Fund in Court — Costs of application for special leave to establish claim.
13 Eliz., c. 5 — Husband and wife — Judicial separation — Voluntary conveyance to defeat wife's costs and alimony.
"Transfer of Land Statute" (No. 301), sec. 42 — Certificate of title — Voluntary transfer — Unregistered transfer — Deposit by way of security — Registration.
Act No. 284 — Imprisonment for debt — Intent to defeat a particular creditor — Insolvency of debtor.
"Local Government Act 1874" (No. 506) — ss. 376, 380, 399, 418 — Negligence — Road not yet cleared, levelled or made — Contributory negligence.
"The Licensing Act 1876" (No. 566), s. 55 — Act No. 532, s. 5 — "Unlawful game."
Practice Probate — Executor according to the tenor — "After payment of debts" — Dispensing with sureties — No debts.
Practice Probate — Administration — Married woman — Separation deed — Husband living in adultery.
Practice Probate — Probate to substituted executor — Notice to executor of deceased executor.
Practice Probate — Administration to a stranger.
"The Administration Act 1872" (No. 427), s. 18 — Practice Probate — Administration — Estate under 500l. — Caveats.
"The Administration Act 1872" (No. 427), s. 28 — Administration bond — Breach — Non-filing three months' account — Non-payment of debt — Funeral expenses — Practice Probate — Assignment of administration bond — Notice of motion.
Practice Probate — Administration — Revocation of grant — Rule nisi — Advertisement — Illegitimacy of grantee of administration, being daughter of intestate — Husband's right to administer wife's estate.
Practice Probate — Pre-decease of sole devisee — Administration c.t.a.
"Duties on the Estates of Deceased Persons Statute 1870" (No. 388), ss. 7 (ii.), 8 — Probate duty — Power of appointment by will.
Practice Probate — Probate of will to one executor and of codicil to another executor — "In the event of my leaving no will" — Construction.
Criminal law — Husband and wife — Burglary — Presumption of wife's coercion by husband.
"Transfer of Land Statute" (No. 301), s. 117 — Caveat — Right to summons caveator — Unregistered transferee — Supreme Court Rules 1884 — Ord. lxiii., r. 2* — Practice — Urgency.
Negligence — Railway or highway — Injury in crossing — Contributory negligence — Burthen of proof.
Supreme Court Rules 1884 — Ord. LVII., r. 14 — Interpleader Order.
"The Duties of Customs Act 1883" (No. 769), Sched. II. — "Drained peel" — "Fruit dried or preserved."
Libel — Fair comment — Existence of matters commented on — Malice against a third person — Practice — New trial — Costs of first trial.
"The Licensed Carriages Statute 1864" (No. 217), s. 5 — Regulations touching conduct of licensed owner or driver — Bye-law providing for relation of master and servant — Presumption that such relation exists.
Building contract — Architect — Certificate of completion to architect's satisfaction — Discharge of architect before certificate given — Penalties for non-completion within specified time.
Public right-of-way — Cul de sac — Back entrance to houses.
"County Court Statute 1869" (No. 345), ss. 120, 122 — County Court Rules 1881, r. 272 — Time for transmitting appeal case — Practice — Appeal from County Court — Preliminary objection that case not transmitted in time.
Reg. Gen., 21st May 1885, r. 25 — Solicitor originally admitted in Tasmania — Admission of, in Victoria.
Written contract of sale — Subsequent parol variation in mode of performance — Practice — Appeal — Counsel's note of judgment below.