WEBSTER v. SHAWVLR 1
Appeal to Privy Council — Motion for leave to appeal — Order in Council of 9th June 1860 — "Final judgment decree or order" — Decision of Full Court on a reference.
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Cases reported in this volume of the Victorian Reports
Appeal to Privy Council — Motion for leave to appeal — Order in Council of 9th June 1860 — "Final judgment decree or order" — Decision of Full Court on a reference.
Administration and Probate Act 1903 (No. 1815), s. 11 — Transfer in consideration of marriage — Gift — Covenant to transfer — Immediate gift.
Costs — Taxation of bill of costs — "Rules of the Supreme Court 1900" — Order LXV., r. 27 (48) — Refresher fees — "Working hours," meaning of — Copy affidavits briefed to counsel, allowance of costs of — Advice on evidence, costs of briefing.
Will — Construction — Trustees — Building — Improvement of vacant land — Municipal rates — Payment out of corpus.
Factories and Shops Act 1903 (No. 1857) — Special Boards and determinations — Court of Industrial Appeals — Practice and Procedure — Evidence.
Land Tax Act 1890 (No. 1107), ss. 3, 4, 6, 7 — Retrospective effect of Act — Liability for tax in respect of the year or half-year during which the landed estate is classified.
Will — Probate — Printed form of will — Words written on back of will to complete sentence on the face — Incorporation — Wills Act 1890 (No. 1159), ss. 7, 8.
Change of proctor — Divorce proceedings — Unpaid costs — Proctor's lien — "Divorce Rules 1885," rr. 117 and 118.
Police Offences Act 1890, ss. 49, 51, 88 — Justices Act 1890, ss. 18, 19, 187 — Information — Variance between charge and evidence — Amendment — Betting — Power to convict on one charge upon evidence given in support of another charge.
Insolvency Act 1890 (No. 1102), s. 37 (1) — Assignment for benefit of creditors generally — Discretion given to trustee as to proof — Whether act of insolvency — Assignment of all property except leasehold.
Insolvency Act 1903 (No. 1836), s. 4 (iii.) — Insolvency Act 1890, s. 123 — Insolvency Act 1897, s. 20 — Commission payable to assignee — Net amount realized and available for payment, etc. — How calculated.
Licensing Act 1890 (No. 1111), s. 182 — Sale of liquor without a licence — Obtaining an order for purchase of liquor by agent.
Practice — Charging order — Costs not taxed.
The Administration and Probate Act 1890 (No. 1060), s. 103 — Annuity, deduction of duty from.
Costs — Taxation of bill of costs — Expenses incurred after notice of intended summons but before institution of proceedings.
Mildura Irrigation Trusts Act 1895 (No. 1409), s. 3 — "Rateable land."
Practice — "Rules of the Supreme Court 1884" — Order III., r. 6 — Special indorsement — Covenant for indemnity.
The Companies Act 1890 (No. 1074), s. 303 — Mining company — Voluntary winding-up — "Course to be pursued by directors."
Company — Calls on forfeited shares — Companies Act 1890 (No. 1074), s. 16 — Specialty debt — Creation of new debt under the Articles of Association — Statute of Limitations.
"Rules of Supreme Court" — Order XLII., r. 32 — Examination of Debtor — Costs due under a judgment — Costs not yet taxed — Whether untaxed costs a debt.
Statute of Limitations — Possession of land by servant, bailiff, or caretaker — Possession of owner — Onus of proof as to nature of possession — Acts of ownership — Effect of mortgage by owner — Tenancy at will — Right of tenant at will under Statute of Limitations — Real Property Act 1890 (No. 1136), s. 23 — Claims against estates of deceased persons, proof of — Crown lease — Crown rents paid to transform leasehold into freehold — "Debts" — Liability of beneficiaries — Tenant for life and remaindermen — Charge on land — Statute of Uses — Applicability to Crown leases — Legal estate — "Bare trustee" — "Trust to permit beneficiary to receive rents, etc." — Option in one of two beneficiaries to choose moiety of land — Duty of trustee to compel exercise of option — Breach of trust — Land Acts 1869 (No. 360), s. 20; 1878 (No. 634), s. 5.
Probate duty — Payment of too little duty — "Discovered" asset — Claim by Crown for additional duty — Right to open up statement for duty — Certificate of Master — "Final and conclusive and subject to no appeal" — "Final balance" — Administration and Probate Act 1890 (No. 1060), ss. 97, 98, 99, 105, 106, 108.
Health Act 1890 (No. 1098), s. 43 — Sale of article to the prejudice of the purchaser — Notice — Knowledge.
Trustee — Breach of trust — Investment of separate legacies — Liability of trustee for moneys lost through solicitor — Trusts Act 1901 (No. 1769), s. 3 — Trustees acting "reasonably and honestly" — Statute of Limitations — Reinstatement of trust fund for benefit of infants, right of adult beneficiaries to — Non-joinder of co-trustee — Practice — Parties.
Practice — County Court — Application for new trial — Appeal — Police constable, powers of to arrest without warrant for felony alleged to have been committed in a foreign country.
Local Government Act 1903 (No. 1893), s. 252 (2) — Rating — Valuation of rateable property — Deductions — Statutable deductions — Renewal reserve fund — "Probable annual average cost of insurance and other expenses" — Sinking fund.
Police Offences Act 1890 (No. 1126), s. 18 (vii.) — "Injury or damage" to "property" — Killing a dog — Construction — Doctrine of ejusdem generis.
Income Tax Acts 1895 (No. 1374), s. 9 (2) (a) and (b); 1896 (No. 1467), s. 6 (1), (2) — Deduction for repairs and renewals of machinery — Deduction for depreciation of machinery — Estimate and allowance by Commissioner of Taxes — Reserve fund — "Machinery, implements, utensils, and articles" — Machinery attached to soil.
Licensing Act 1890 (No. 1111), ss. 76, 125 — Prohibition order — Who entitled to take proceedings — Evidence of injury to health — Necessity for expert evidence — Admissibility of evidence of prior convictions for drunkenness — Justices — Order to review — Wrongful reception of evidence — When decision upheld notwithstanding wrongful reception of evidence — Amendment of complaint — Discretion to refuse adjournment.
Appeal to Privy Council — Order in Council 9th June 1860 — "Final judgment order or sentence of the Supreme Court" — Decision of Full Court on a reference by primary Judge — Costs of appeal — Practice.
The Stamps Act 1890 (No. 1140) — The Stamps Act 1892 (No. 1274) — Schedule VIII. — Marriage settlement.
Deed of assignment — Act of insolvency — Creditor assenting to or approving of deed.
Licensing Act 1890 (No. 1111), ss. 4 (8), 182 — Club — Sale of liquor to person not a member of the club.
Factories and Shops Acts 1896 (No. 1445), s. 21 — Working hours for females and boys — "Week," meaning of.
Attorney and solicitor — Work and labour done, right of solicitor to sue for — Justices, jurisdiction of in case of written agreement.
Practice — Imprisonment of Fraudulent Debtors Act 1890 (No. 1100), s. 4 — Summons to debtor — Personal service — Substituted service — "Otherwise" — "Rules of the Supreme Court 1884" — Order LXVII., r. 6.
Police Offences Act 1890 (No. 1126), ss. 40 (1), 82, 88 — Power of constable to arrest without warrant — Vagrancy — Conditions of jurisdiction of justices — Dismissal — Order to review.
Patents Act 1890 (No. 1123), ss. 29 (3), 33, 74 — Rules under Patents Act 1890, r. 38 — Costs of employing patent agent — Appeal from Commissioner.
Real Property Act 1890 (No. 1136), s. 185 — 6 Geo. IV. (N.S.W.), No. 22, s. 4 — Registration of deeds, etc. — Memorial of indenture — Party signing uncompleted memorial.
Mines Act 1897 (No. 1514), ss. 129, 148 — Accident in a mine — Evidence of negligence — Cause of action — Non-observance of regulations — Particulars.
Local Government Act 1890 (No. 1112). s. 246 — Melbourne Corporation Act (No. 178), s. 42 — State Aid Abolition Act (No. 391) — Rating — Beneficial occupation — Land with statutory restriction on user — Restriction excluding profitable user — Land "stricken with sterility" — Land used exclusively for charitable purposes.
Practice — Execution — Writ of fi. fa. — Departure of writ from judgment — Change of parties — Execution against one of two joint debtors — Separate executions for debt and costs — Form of writ of fi. fa. — Writ of fi. fa. upon judgment — Writ of fi. fa. upon order for costs — Execution for costs upon same day as taxation — Irregularity — Reasonable time for objection to writ of fi. fa. — Effect of objection before sale takes place — Setting aside writ of fi. fa. — Costs — Set-off — "Rules of the Supreme Court 1884" — Order XLII., r. 18 — Order LXX., r. 2 — Appendix H., Forms Nos. 1 and 2.
Probate practice — Application for probate — Probate jurisdiction — Construction of will — "Eldest son" — Application of words of limitation in one devise to similar devise.
Insolvency Act 1897 (No. 1513), s. 5 — Jurisdiction — General power of Insolvency Court.
Trustees — Trustee and cestui que trust — Breach of trust — Scotch administrator in law — Trusts Act 1901 (No. 1769), s. 3 — Release of trustee from liability for breach of trust — Release of one of several jointly and severally liable.
Practice — Costs — Charge by solicitor for drawing document actually drawn by counsel — "Communis error facit jus."
Licensing Act 1890 (No. 1111), ss. 165, 182 — Selling liquor without a licence — Restaurant-keeper sending out for liquor — Retention by restaurant-keeper of part of money paid by customer for liquor — Charge by restaurant-keeper for serving liquor — Knowledge of customer — Onus of proof of sale.
County Court Act 1890 (No. 1078), s. 47 — Costs — Costs fixed by Judge or Registrar — Review — Taxation.
Practice — Costs — Settled estate — Proceedings by tenant for life for his own benefit — Salvage — Infant remaindermen — Costs of tenant for life made a charge on the estate — Jurisdiction — Sale of settled estate to pay costs of tenant for life — Action of ejectment — Plea of "res judicata."
Administration and Probate Act 1890 (No. 1060), ss. 8, 9, 40, 44 — Attorney under power of English administrator — Victorian assets, right of Victorian administrator to distribute.
Administration bond — Rights and liabilities of sureties — Right of sureties to relief against loss actually incurred — Covenant by administratrix to administer according to law and to indemnify sureties against loss — Breaches of duty by administratrix proving beneficial to estate — Right of sureties to damages for breach of covenant — Acceptance of nominal damages — Right of sureties to bring administration suit — Quia timet action — Right of sureties to injunction to prevent maladministration — Affirmative and negative covenants — Injunction or damages — Exercise of discretion — Party not appellant appearing on appeal — Costs.
Administration and Probate Act 1890 (No. 1060), s. 103 — Apportionment of liability to duty as between beneficiaries — Liability to duty of annuity directed to be raised on land — Sum charged upon land — "Legacy or bequest."
Probate Charges Act 1903 (No. 1827), ss. 2 & 3 — Taxation — Bill of costs — Special or unusual work — Disbursement — Payment of duty included in bill — Solicitor and client — Practice.
Veterinary Surgeons Act 1890 (No. 1154), ss. 13 and 20 — Registration — Certificate of qualification — "Continuously practising," meaning of — President of Board — Chairman of meetings — Mandamus.
Health Act 1890 (No. 1098), s. 204 — Notice requiring parent to vaccinate child — Service of notice on wife.
Interrogatories — Practice — Oppressive and vexatious interrogatories — Further and better answers — Information and belief.
Factories and Shops Act 1890 (No. 1091) — Factories and Shops Act 1893 (No. 1333) — Factories and Shops Act 1896 (No. 1445) — Factories and Shops Act 1897 (No. 1518) — Factories and Shops Act 1900 (No. 1654), ss. 3, 4, 15, and 27 — Factories and Shops Act 1903 (No. 1857) — Minimum rate of wage — Persons working outside factories and not for occupier — Sub-contract.
Practice — County Court — Costs — No jurisdiction — Cause struck out — Power to award costs — County Court Act 1890 (No. 1078), ss. 48, 94.
Practice — Justices — Order to review — Debt under 5l. — Set-off of solicitor's bill of costs over 5l. — Bill of costs not delivered or taxed — Refusal to adjudicate on set-off — Sum in respect of which defendant aggrieved — Taxation of costs — Jurisdiction of justices to tax costs — Order for excess of set-off over claim — Justices Act 1890 (No. 1105), ss. 79, 80 — Justices Act 1904 (No. 1959), s. 21 — Supreme Court Act 1890 (No. 1142), s. 207.
Legal Profession Practice Act 1895 (No. 1387), s. 2 — Legal Practitioners Reciprocity Act 1903 (No. 1887), ss. 2, 7 (2), (3), (4) — "Rules for the Admission of Barristers and Solicitors of 16th February 1905," rule 13 — Powers of Council of Legal Education — English barrister-at-law — Right to admission to practise in Victoria.
Will — Construction — "Rents of all my estate" — Indefinite gift of income — No specific disposition of corpus — Gift of rents to "all my children living monthly" — Power in named children to control sale of corpus — Class or person designat — Gift to child who has died before testator leaving issue — Lapse — Wills Act 1890 (No. 1159), s. 31.
Divorce — Domicile — Marriage Act 1890 (No. 1166), s. 74.
Divorce — Husband and wife — Dissolution of marriage — Uncorroborated statement of petitioner, power of Court to act upon — Marriage Act 1890 (No. 1166), s. 81.
Instruments Act 1890 (No. 1103), ss. 92, 94 — Summary proceedings — Action on a bill — Telegraphic money order tendered — Demand of costs — Payment — Tender — Setting aside proceedings — Waiver — Estoppel — Exercise of discretion — Delay — Appeals — Grounds of appeal, departure from.
Discovery and inspection of documents — Communication from agent of party — Reports sent to solicitor — Privilege.
Insolvency — Proof of debt — Composition with creditors — Substituted contract — Release of one of two joint debtors — "Insolvency Rules 1898" — Rule 241 (2) — Appeal from rejection of proof, time for — Ultra vires.
Conveyancing Act 1904 (No. 1953), ss. 4 (5), 10 — Requisition — Expenses of proof — Vendor and purchaser.
Practice — Costs — Bill of costs — Taxation — Costs of action — Costs incurred in effecting compromise — Party and party costs — Writ of subpna, form of — Witnesses — "Rules of Supreme Court 1884" — Order XXXVII., rr. 27, 29, 30, 31, and 32.
Appeal to Privy Council — Income Tax Acts — Liability to tax of salary of Federal officer — Leave to appeal to the Privy Council from decision of State Court — Imperial Order in Council of 9th June 1860 — Power of Commonwealth Parliament to take away right of appeal — Commonwealth of Australia Constitution Act, 63 & 64 Vict., c. 12, ss. 73, 74, 77 — Commonwealth Judiciary Act 1903, ss. 30, 38, 39 — "Invested" — "Federal" jurisdiction of State Courts.
Will — Gift to widow for the benefit of herself and children — Trust — Precatory trust.
The Railways Act 1890 (No. 1135), s. 93 — Compensation — Right of railway employ to compensation on removal at pleasure of Commissioners — "To be computed under the provisions of Act No. 160," meaning of — Act No. 160 — Public Service Act.
Fire Brigades Act 1890 (No. 1200), ss. 2, 42, 45 — Fire Brigades Act 1891 (No. 1207) — "Insurance company" — Marine insurance company — Insurance of goods against fire whilst in transit to and from ship or whilst temporarily warehoused — Insurance of vessel temporarily moored to wharf — Liability to contribute to expenditure of Fire Brigades Board — Fire and marine insurance companies distinguished.
Vermin Destruction Act 1890 (No. 1153), ss. 14, 15 — Notice to destroy vermin — Summons for neglecting to destroy — Dismissal of summons — Second summons against same defendant without serving fresh notice — Summons for period, including shorter period in respect of which previously acquitted — Onus of proof.
Lands Compensation Act 1890 (No. 1109), ss. 37, 40 — Compensation for lands compulsorily taken — Interest on — Right to interest from date of "taking of possession" — Date fixed by Statute for payment of compensation — Right to interest for period prior to.
Land Tax Act 1877 (No. 575), s. 40 — Land Tax Act 1890 (No. 1107), s. 41 — Landed estate — Sale and transfer of part — Liability to land tax in respect of balance without reclassification — Balance sold to person not previously on register — Liability of latter to land tax.
Divorce — Marriage Act 1890, s. 74 — Divorce jurisdiction — Continuing matrimonial offence — Matrimonial offence committed in part outside Victoria — Act unlawful where committed — Act not a ground for divorce where committed — Domicil.
Marriage Act 1900 (No. 1684), s. 8 — Prematernity order — Paternity of child — Oath of enceinte woman — Corroborative evidence — What sufficient.
Justices — Practice — Right of accused person to be present during hearing of cause.
Bakers and Millers Act 1893 (No. 1332), s. 6 — Weight of bread — Deficiency in weight — How to be tested — Average weight of number taken.
Divorce — Domicil of infant — Married infant — Divorce jurisdiction — Deserted wife — Marriage Act 1890 (No. 1166), s. 74.
Administration and Probate Act 1903 (No. 1815), s. 11 — Property chargeable with duty — Probate — Duty — Gifts — "Part of the estate of donor."
Deceit, action of — Innocent misrepresentation — Falsity afterwards discovered — Duty to disclose — Verdict of jury — Costs follow event — Substantial failure of successful party's claim — "Good cause" — Discretion — "Rules of the Supreme Court 1884" — Order LXV., r. 1.
Evidence — Admission — Pleadings in another action — Trustee — Negligence — Documents left in hands of solicitor.
Practice — "Rules of the Supreme Court 1900" — Order LV., r. 5* — Originating summons — Debenture-holders — Order for sale, with accounts to be taken — Jurisdiction.
Veterinary Surgeons Act 1890 (No. 1154), ss. 13 and 20 — Registration — Mandamus — Evidence to show fraud on part of applicant.
Supreme Court Act 1890 (No. 1142), ss. 212, 213, 215, 216 — Costs — "Re-taxation" — "Review and correction of taxation" — Party interested in property — Assignee — Right of to review of taxation.
Executor — Debt owed by executor to testator — "Assets in the hands of the executor" — Statute of Limitations — Trusts Act 1896 (No. 1421), s. 29.
Will — Life tenant and remaindermen — Capital and income — Shares in company — Accumulated profits — Dividend not distributed in money — Dividend applied in payment for new shares — Option of shareholder — Carrying on business of testator — Amount of capital invested.
Stock Diseases Act 1890 (No. 1141), ss. 74, 99 — Travelling sheep — Rate of travelling — Act for public benefit — Right to prosecute for offence against.
Licensing Act 1890 (No. 1111), ss. 153, 197 — Informer — Right to lay information for statutory offence affecting the public.
International law — Conflict of laws — Tort committed abroad — Jurisdiction — Patent in New South Wales — Infringement by Victorian company in New South Wales of New South Wales patent — Action not justiciable in Victoria — "Local action" — "Transitory action" — Practice — Demurrer — Right of reply.
Will — Contingent legacy — Infant — Interest on legacy.
Vermin Destruction Act 1890 (No. 1153), s. 15 — "Owner or occupier of land," meaning of — Insolvent person, position of as an "owner."
Secret process — Passing off action — Identity of plaintiff's process with defendant's — Right to cross-examine as to secret process — Proceeding in camera — Power to exclude parties.
Will — Gift of fee on attaining 21 — Gift over in event of death under 21 or without male issue — "Or" read as "and" — Rule of law — Rule of construction — Sale by sheriff of interest in land under a will — Real Property Act 1890 (No. 1136), s. 125.
Practice — Entry up of judgment — Miscalculation of interest — Amendment of judgment — Ex parte application refused — "Clerical error" — "Accidental slip" — "Proceeding" — "Rules of the Supreme Court 1884" — Order XXVIII., rr. 11, 12.
Administration and Probate Act 1890 (No. 1060), ss. 15, 40, 43 — Supreme Court Act 1890 (No. 1142), s. 20 — Probate jurisdiction — Sealing letters of administration granted in another colony — Administration bond — Power of Court to dispense with bond.
Justices Act 1890 (No. 1105), ss. 22, 59 (4), 201 — Justices Act 1904 (No. 1959), s. 17 — Municipal rates — Period of limitation — Default summons — "Civil debt recoverable summarily" — Local Government Act 1903 (No. 1893), s. 313.
Factories and Shops Acts: No. 1091, ss. 46, 47, Fourth Schedule; No. 1445, ss. 34, 38; No. 1654, s. 9. — Weekly half-holiday — Validity of regulation — Early closing legislation.
Police Offences Act 1890 (No. 1126), s. 37 — Lottery — Calcutta sweep — Prizes competed for by lot or other mode of chance.
"The Land Tax Act 1877" (No. 575), ss. 2, 14, 21, 40, 44 — Land Tax Act 1890 (No. 1107), ss. 3, 15, 22, 41, 45 — "Landed estate" — Sale and transfer of part of landed estate — Sale of balance to person not previously on register — Liability to land tax — Severance of sufficient part of landed estate to affect whole — Declassification of landed estate — Lands belonging to one owner within five-mile area — Classification as one landed estate — Addition of land to landed estate without new classification — Effect on legality of previous classification — Exemption from land tax — Deduction in respect of each of several landed estates belonging to one owner — Practice — Appeal against classification to Commissioners of Land Tax — Payment, under threat of legal process — Right to recover money back — Crown Remedies and Liability Act 1890 (No. 1080), Part I. — Suits by the Crown — Costs against the Crown.
Trespass — Mandatory injunction — Nuisance, abatement of — Delay — Melbourne and Metropolitan Board of Works Act 1890 (No. 1197), s. 79.
Criminal law — Receiving stolen goods — Evidence of possession of other stolen goods of the same kind belonging to a different owner — Evidence of theft of other similar goods — Admissibility.
Practice — "The Rules of the Supreme Court 1884" — Order XXVI., rr. 1, 3, 4 — Discontinuance — Terms of leave to discontinue — Patent — Action for infringement — Patents Act 1890 (No. 1123), s. 50 (2), (6) — Costs of particulars of objections.