Unlimited digital access from $45/mo. Print subscriptions with bound volumes available.Shop Now

Browse

View Victorian Reports and Victorian Law Reports by volume number

[1916] VLR(90 results)

Cases reported in this volume of the Victorian Reports

IN THE WILL OF DUNCANVLR 1

A’BECKETT, J.·25 Nov 1915·Supreme Court of Victoria

Administration and probateWill, validity of — Will not executed in conformity with Wills Act — Later valid will — Subsequent codicil executed after later will on back of earlier informal will — Informal will, whether incorporated and validated by codicil — Intention — Probate granted of later will and codicil only.

JOSKE v. DENTAL CASH ORDER COMPANY PROPRIETARY LIMITEDVLR 2

MADDEN, C.J. (dissenting).·5 Nov 1915·Supreme Court of Victoria

DentistOffence — Exhibition of words "Dental Company" — "Dental Cash Order Company Proprietary Limited" — Whether words prohibited in such combination — Medical Act 1915 (No. 2695), ss. 69, 70, 72.

TINSLEY v. BEVANVLR 11

A’BECKETT, J.·3 Nov 1915·Supreme Court of Victoria

ExecutionDeed of arrangement — Effect of deed of arrangement after execution levied against debtor's property — Insolvency Act 1915 (No. 2671), ss. 257, 262 — Insolvency Act 1897 (No. 1513), ss. 79, 83.

THOMSON v. DORMAN, LONG AND COMPANY LIMITEDVLR 13

CUSSEN, J.·24 Nov 1915·Supreme Court of Victoria

Factories and shopsEmploy engaged during period in different classes of work — Different Wages Board determinations applicable — How rate of wages payable determined — Girders supplied and erected by girder-maker — Girder-maker's labourer engaged in connection with making of girders, and also of their erection in building — Whether entitled in respect of work done at building to be paid rate of wages provided for builder's labourer — Factories and Shops Act 1912 (No. 2386), ss. 133, 141.

HANDASYDE v. MELBOURNE GENERAL MOTOR-BUS COMPANY LIMITEDVLR 16

A’BECKETT, J.·2 Dec 1915·Supreme Court of Victoria

NegligencePassenger on motor-omnibus injured in collision on highway — Action by passenger — Onus of proof — Res ipsa loquitur.

THE KING v. PULLARVLR 24

MADDEN, C.J.·6 Dec 1915·Supreme Court of Victoria

Local governmentRefusal of city surveyor to approve building plan and specification — Consent of Council — Matters improperly considered — Duty of surveyor — Mandamus — By-law of city of Essendon, No. 29 (1): Health Act 1915 (No. 2665), s. 286.

IN RE HASSELLVLR 29

MADDEN, C.J. (dissenting), read the following judgment·1 Dec 1915·Supreme Court of Victoria

WillShares in company — Tenant for life and remainderman — Bonuses and dividends — Special bonuses out of accumulated profits — "Distribution of assets" — Income or capital — Company carrying on business as tramway proprietors under leases of tramways — Leases about to expire — Principal objects ceasing to be operative — Apportionment of bonuses — Profits accumulated before and after testator's death.

THE KING v. THE REGISTRAR OF TITLESVLR 65

[Coram GRIFFITHS, C.J., ISAACS, HIGGINS, GAVAN DUFFY, RICH, AND POWERS, JJ.]·16 Sept 1915·In the High Court of Australia

Local GovernmentDefence purposes — Lease by municipality to Commonwealth — Peppercorn rent — Validity of lease — Refusal of Registrar to register — Lands Acquisition Act (Federal) (No. 13 of 1906), ss. 2, 5, 8, 9, 13, 14, 15 — Effect of — Validity of Act — Local Government Act 1903 (No. 1893), ss. 238, 239 — Local Government Act 1915 (No. 2686), ss. 238, 239 — Commonwealth of Australia Constitution, s. 75 (3) — Transfer of Land Act 1890 (No. 1149), s. 209 — Transfer of Land Act 1915 (No. 2740), s. 248 — Mandamus to State officer — Duty and functions of Registrar of Titles.

HODGES v. MONTGOMERYVLR 90

HOOD, J.·2 Feb 1916·Supreme Court of Victoria

Principal and agentSale of land — Authority of agent — Terms of sale — Condition that agent may retain commission out of deposit and pay balance into trust account until completion or annulment of sale, and thereupon be free from all responsibility and claim — Whether within authority conferred — Objection by principal — Right to commission.

McFARLAND v. McFARLANDVLR 93

HOOD, J.·2 Feb 1916·Supreme Court of Victoria

MaintenanceOrder for — Where husband or father has left Victoria — Order made in absence of defendant — Setting aside — Order transmitted to clerk of peace — Application to set aside — Whether Court of Petty Sessions has power to order — Justices Act 1915 (No. 2675), s. 66 — Marriage Act 1915 (No. 2691), ss. 86, 90, 93.

SPEAR v. MAYOR, ETC., OF WILLIAMSTOWNVLR 96

MADDEN, C.J., HODGES, J., and HOOD, J.·17 Dec 1915·Supreme Court of Victoria

Local GovernmentStreets formed or set out on private property — Public highways — Forming, etc., such streets by municipality — Liability of owners of property abutting thereon to contribute to cost — Local Government Act 1903 (No. 1893), s. 526 — Local Government Act 1915 (No. 2686), s. 526.

IN THE WILL OF DWYERVLR 114

HOOD, J.·2 Feb 1916·Supreme Court of Victoria

WillConstruction — Gift in trust for beneficiary "until she attains her eighteenth year" — Implied gift — Gift of residue to "executrix in trust to dispose of in whatever manner she may think fit" — Trust — Void for uncertainty.

THE PRESIDENT OF THE SHIRE OF TUNGAMAH v. KINGVLR 116

HOOD, J.·1 Sept 1915·Supreme Court of Victoria

Health Act 1890 (No. 1098), s. 259; Health Act 1915 (No. 2665), s. 320Local Government Act 1903 (No. 1893), s. 313; Local Government Act 1915 (No. 2686), s. 313 — Nightsoil, removal of — Pan not in use — Charge, recovery of — Written demand.

IN RE SMITHVLR 119

MADDEN, C.J.·3 Feb 1916·Supreme Court of Victoria

InsolvencyApplication for certificate — Offence — Court of Insolvency of opinion that insolvent has been guilty of felony or misdemeanour — Conviction — Form of — Want of particularity — Power of Full Court to vary conviction — Insolvency Act 1915 (No. 2671), ss. 31, 234, 275.

R. v. NICHOLSONVLR 130

HOOD, J.·24 Nov 1915·Supreme Court of Victoria

Criminal lawNegligent act or omission causing bodily injury — Injury not direct result of act or omission — Crimes Act 1915 (No. 2637), s. 23.

DUNCAN v. ELLISVLR 131

MADDEN, C.J.·1 Jan 1916·Supreme Court of Victoria

Factories and ShopsOffence created by Statute — Mens rea — Wages board determination — Payment of lower rate of wages than rate provided — "Improver" — False statement of age — Factories and Shops Act 1915 (No. 2650), ss. 194, 221, 226, 228.

IN RE CURRIE’S SETTLEMENTSVLR 139

[Coram GRIFFITH, C.J., ISAACS, DUFFY, AND RICH, JJ.]·24 Feb 1916·In the High Court of Australia

Administration and probateAdministration and Probate Act 1890 (No. 1060), s. 112 — Administration and Probate Act 1903 (No. 1815), s. 9 (2) — Settlement — Property comprised therein partly situate in Victoria, partly elsewhere — Duty payable in respect of what property — Property originally comprised in settlement — Property in Victoria at settlor's death.

ORD v. FLOHMVLR 148

MADDEN, C.J., A’BECKETT, J., and HODGES, J.·8 Feb 1916·Supreme Court of Victoria

Police offencesPolice Offences Act 1915 (No. 2708), s. 5 (14) — Obstructing footpath or road by placing goods thereon or otherwise — Bicycle placed on footpath.

IN RE CLARKE AND LEARMONTH’S CONTRACTVLR 151

MADDEN, C.J.·9 Feb 1916·Supreme Court of Victoria

Vendor and purchaserSale of land — Conditions of sale — Land tax — Purchaser to pay vendor a sum equivalent to the land tax (Federal and State) payable by the vendor in respect of the land sold — Vendor the owner of other land than land sold — Extent of liability of purchaser — Federal Land Tax Assessment Act No. 12 of 1911, s. 10 — Conveyancing Act 1915 (No. 2633), s. 12.

THE KING v. KNIGHTVLR 159

HOOD, J.·10 Mar 1916·Supreme Court of Victoria

JusticesComplaint — Objection to Court — Other Court more easy of access — Place where "subject-matter" of complaint arose — Meaning of "subject-matter" — Goods sold and delivered — Place of payment — Debtor's duty to seek creditor — Failure to pay — Substantial part of "subject-matter" — Order to review — Whether order for adjournment may be reviewed — Mandamus — Preliminary objection wrongly decided — Justices Act 1915 (No. 2675), ss. 4, 86, 150.

IN THE WILL OF FINNVLR 165

HODGES, J.·3 Dec 1915·Supreme Court of Victoria

Administration and probatePractice — Probate — Caveat — Discovery — Discretion of Court to order general discovery — Rules of the Supreme Court 1906, c. 111 (Probate and Administration), r. 32.

IN RE UPHILLVLR 168

HODGES, J.·13 Mar 1916·Supreme Court of Victoria

InfantMaintenance, past and future — Income of trust property insufficient — Breaking in on corpus — Capital value of property over 2000l. — Jurisdiction — Trusts Act 1915 (No. 2741), s. 65.

JOSKE v. THE DENTAL CASH ORDER COMPANY PROPRIETARY LIMITEDVLR 171

[Coram GRIFFITH, C.J., BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·28 Feb 1916·In the High Court of Australia

DentistOffence — Exhibition of words "Dental Company" — "Dental Cash Order Company Proprietary Limited" — Whether words prohibited in such combination — Medical Act 1915 (No. 2695), ss. 69, 70, 72.

LILLIS v. HEYWARDVLR 178

HODGES, J.·8 Mar 1916·Supreme Court of Victoria

Police offencesSunday observance — Keeping open shop for purpose of trade or dealing — No by-law — Whether by-law necessary — Police Offences Act 1915 (No. 2708), ss. 49, 187.

IN RE THE BALLARAT JAM COMPANY PROPRIETARY LTD.VLR 180

HODGES, J.·25 June 1915·Supreme Court of Victoria

CompanyReduction of capital — Petition — Practice — Order on presentation of petition — Advertisement — Creditors — Use of "and reduced" — Dispensation of — Companies Act 1910 (No. 2293), ss. 53, 54, 56, 57.

McCARTHY v. HOAREVLR 183

CUSSEN, J.·22 Mar 1916·Supreme Court of Victoria

ContractBuilding contract — Conditions — Common printed form — Named architect — "Architect for the time being" — Dismissal of architect by building proprietor during progress of work — Effect — Agreed certifier — Dismissal as agent of proprietor only — Power to give certificate to contractor — Rules of Supreme Court 1906 — Order XXV., r. 2 — Question of law.

R. v. MERRICKVLR 195

MADDEN, C.J.·29 Mar 1916·Supreme Court of Victoria

Criminal lawPerjury — Surety for person under arrest — Administration of oath by justice of peace — Jurisdiction — Demurrer — Justices Act 1915 (No. 2675), ss. 29 (f), 31 (d) and (e); Evidence Act 1915 (No. 2647), s. 142.

RUTTER v. MOLLOYVLR 196

HODGES, J.·29 Mar 1916·Supreme Court of Victoria

PoundsTrespass rate — Trespass of bull — Damage other than to land — Service of cows — Loss thereby sustained by occupier — Whether under s. 10 additional trespass rate in respect thereof may be demanded — Pounds Act 1915 (No. 2710), ss. 10, 25, 26.

STRAUSS v. WYKESVLR 200

MADDEN, C.J.·4 Mar 1916·Supreme Court of Victoria

Administration and probatePractice — Commission — Executors — Administrators — Trustees — Passing accounts — Future commission — Form of order — Application ex parte — Application in suit or by originating summons — Duty of trustees as to keeping and passing accounts — Costs — When allowable out of estate — Administration and Probate Act 1915 (No. 2611), s. 34; Supreme Court Act 1915 (No. 2733), s. 18.

WILKIE v. THE MELBOURNE MOTOR-BUS COMPANY LTD.VLR 211

A’BECKETT, J.·3 Apr 1916·Supreme Court of Victoria

EvidencePractice — Examination de bene esse — County Court action — Judgment entered for defendant — Application for new trial — Evidence Act 1915 (No. 2647), ss. 4, 9 — "Action or suit depending."

SCHUMACHER MILL FURNISHING WORKS PTY. LTD. v. SMAILVLR 213

[Coram GRIFFITH, C.J., BARTON, ISAACS, AND RICH, JJ.]·23 Mar 1916·In the High Court of Australia

InsolvencyAppeal — Procedure — Special Case — Proceedings extra cursum curi — Jurisdiction of High Court — Insolvency Act 1915 (No. 2671), s. 32 — Commonwealth Judiciary Act (No. 6 of 1903), s. 35.

CRESPIN & SON v. COLAC CO-OPERATIVE FARMERS LIMITEDVLR 215

[Coram GRIFFITH, C.J., BARTON, ISAACS, HIGGINS, AND RICH, JJ.]·24 Mar 1916·In the High Court of Australia

CustomsDuty — Contract — Sale of goods — "Agreement for the sale or delivery of goods duty paid" — Goods to be imported — Unascertained goods — Increase in Customs duties between date of agreement and importation — Alteration of price — Right of seller to add duty — Taxation, law with respect to — Law imposing taxation — Commonwealth Parliament, powers of — Commonwealth of Australia Constitution Act, ss. 51 (ii.), 55 — Commonwealth Customs Act 1901-1910, s. 152.

FULLARTON v. THE NORTH MELBOURNE ELECTRIC TRAMWAYS AND LIGHTING COMPANY LIMITEDVLR 231

[Coram GRIFFITH, C.J., BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·24 Mar 1916·In the High Court of Australia

NegligenceTramway — Statutory authority — Defendant acting under — Extent of — Defective apparatus — Uninsulated wire — Escape of electricity — Injury to person using highway — Liability of tramway company — Extent of — Whether liable apart from negligence — Meaning of "negligence" — Rylands v. Fletcher — Misdirection — New trial — County Court — Particulars of demand — Sufficiency of — Tramways Act 1890 (No. 1148), ss. 3, 5, 13; Second Schedule, clauses 1, 4, 5, 21 — County Court Act 1890 (No. 1078), s. 146 — County Court Rules 1891, r. 41 — Res judicata.

BECKWITH v. NICHOL BROTHERSVLR 261

HODGES, J.·8 Mar 1916·Supreme Court of Victoria

DairyCharge of not holding licence — Renewal of licence — Retention of fee by authorities, effect of — Right of applicant for renewal to be treated as licensee — Report from supervisor — Condition precedent — Dairy Supervision Act 1915 — (No. 2639), ss. 12 (3), (5), (9), 24, 44 (g).

IN THE WILL OF MUDIEVLR 265

CUSSEN, J.·1 Dec 1915·Supreme Court of Victoria

WillConstruction — Vesting — In interest or in possession — "Die before attaining a vested interest" — Life interest preceding distribution of residue — Vesting at testator's death — Children and grandchildren — Per capita.

IN RE NICKSONVLR 274

A’BECKETT, J.·24 Mar 1916·Supreme Court of Victoria

Administration and ProbateProbate — Will — Solicitor and client — Gift to solicitor of testatrix — Onus probandi — Independent advice.

R. v. STORERVLR 285

MADDEN, C.J.·11 Apr 1916·Supreme Court of Victoria

Criminal appealReport of trial Judge — Disclosure to parties — Conclusiveness of report — Exception to conclusiveness — Crimes Act 1915 (No. 2637), ss. 598, 599.

IN RE SALMONVLR 288

A’BECKETT, J.·13 Apr 1916·Supreme Court of Victoria

Administration and ProbateAuthority to trustee company to apply for probate — Withdrawal of authority by consent — Rights of executor — Administration and Probate Act 1915 (No. 2611), s. 7 (1), 8.

IN THE WILL OF McNEIGHTVLR 292

A’BECKETT, J.·2 May 1916·Supreme Court of Victoria

WillConstruction — Gift of specified property to executors for sole use and benefit of wife for her support during her life — Subsequent dispositions — Other assets — "Balance if any is left" — Whether gift of specific property absolute or for life interest only.

IN THE WILL OF O’LEARYVLR 297

MADDEN, C.J.·11 May 1916·Supreme Court of Victoria

WillConstruction — Rule in Shelley's Case — Use of words of distribution — Effect of — Real Property Act 1915 (No. 2719), s. 62 — Wills Act 1915 (No. 2749), s. 26.

IN RE SMITHVLR 302

[Coram BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·18 May 1916·In the High Court of Australia

InsolvencyApplication for certificate — Offence — Court of Insolvency of opinion that insolvent has been guilty of felony or misdeameanour — Conviction — Form of — Want of particularity — Power of Full Court to vary conviction — Insolvency Act 1915 (No. 2671), ss. 31, 234, 275.

SIBLEY v. GROSVENORVLR 307

[Coram GRIFFITH, C.J., BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·24 Mar 1916·In the High Court of Australia

Vendor and purchaserContract — Misrepresentation — Deceit — Sale of land — False representation by agent that principal was a mortgagee — Inducement — Materiality — Principal innocent of fraud — Obligation of fraudulent agent to indemnify purchaser — Parties — Rules of Supreme Court — Order XVI., r. 4 — Joinder of principal and agent as defendants — Relief obtainable — Rescission and restitution — Damages — Value of repairs and improvements by purchaser — Other expenditure by purchaser — Findings of fact — Duty of Appellate Court — Evidence — Admission — Burden of proof.

DUNCAN v. ELLISVLR 325

[Coram BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·16 May 1916·In the High Court of Australia

Factories and shopsOffence created by Statute — Mens rea — Wages board determination — Payment of lower rate of wages than rate provided — "Improver" — False statement of age — Reasonable belief of employer, whether defence — Factories and Shops Act 1915 (No. 2650), ss. 194, 221, 226, 228 — Fixing penalty.

IN RE CASKIEVLR 332

CUSSEN, J.·15 Dec 1915·Supreme Court of Victoria

InsolvencyOrder nisi — Estate placed in hands of assignee for district other than that in which assignee resides — Jurisdiction — Amendment of order nisi — Insolvency Act 1915 (No. 2671), ss. 35, 41, 52, 69, 70.

MURPHY v. KENNYVLR 335

MADDEN, C.J.·18 May 1916·Supreme Court of Victoria

War precautionsMens rea — Criminal law — Master and servant — Prohibition of sale of military badges — Sale by servant — Sale in absence of and against instructions of master — Whether master guilty of offence — Commonwealth War Precautions Act 1914-1915, s. 6 — War Precautions Regulations 1915, No. 42A.

R. v. HERBERTVLR 343

MADDEN, C.J.·4 May 1916·Supreme Court of Victoria

Criminal lawEvidence — Sodomy, charge of — Similar acts committed on prior and subsequent days, admissibility of evidence as to — Rules as to admission of evidence of similar acts — Crimes Act 1915 (No. 2637), s. 477.

R. v. McNICOLVLR 350

MADDEN, C.J.·2 June 1916·Supreme Court of Victoria

Criminal lawAutrefois convict — Plea of — Test of validity — Offences — Interference with goods subject to control of Customs — Conviction of that offence — Larceny — Subsequent charge of in relation to same goods — Whether conviction of interference a bar to charge of larceny — Commonwealth Customs Act 1901-1914, s. 33 — Acts Interpretation Act 1915 (No. 2609), s. 25 — Crimes Act 1915 (No. 2637), s. 427.

ROGERSON v. WILLIAMSVLR 356

HOOD, J.·16 June 1916·Supreme Court of Victoria

Gold buyersCriminal law — Gold Buyers Act 1915 (No. 2662), s. 48 — Person having possession of gold and failing to satisfy a member of the police force that he came lawfully by it.

R. v. GIDDINGSVLR 359

CUSSEN, J.·7 June 1916·Supreme Court of Victoria

Criminal lawNotice of intention to prefer presentment — Place of trial — Discretion of Attorney-General — Review by Court — "Good cause," what is — Onus of proof — Crimes Act 1915 (No. 2637), ss. 387, 393.

BRUNSWICK, MAYOR, ETC., OF THE CITY v. BAKERVLR 363

[Coram BARTON, ISAACS, AND RICH, JJ.]·8 June 1916·In the High Court of Australia

Local GovernmentStreets formed or set out on private property — Setting out of street — Highways — Forming such by municipality — Liability of owners abutting thereon to contribute to cost — Scheme of distribution — Two sets of contributors, one on each side of street — Local Government Act 1915 (No. 2686), ss. 526, 532, 537 — What constitutes "dedication" of highways to the public.

R. v. ENNORVLR 376

MADDEN, C.J.·7 Apr 1916·Supreme Court of Victoria

Criminal lawAppeal — Application for leave — Fresh evidence — Alibi — Witnesses available but not called at trial — Other witnesses competent but not compellable — Special circumstances — Practice — Right of Crown to be heard on application — Crimes Act 1915 (No. 2637), ss. 593, 594 (1), 603.

COOPER & SONS v. DAWSONVLR 381

MADDEN, C.J., HOOD, J., and CUSSEN, J.·1 June 1916·Supreme Court of Victoria

JusticesCourt of Petty Sessions — Order of — Enforcement — Imprisonment of fraudulent debtor — Application for — Statute of Limitations — Period of limitation — Nature of order of Court of Petty Sessions — Whether a judgment — Whether a debt by specialty or simple contract debt — Court of Record — Whether Court of Petty Sessions is — Test to be applied — Power to fine and imprison — Previous fraud summons — No order thereon — Whether a bar to subsequent application — Imprisonment of Fraudulent Debtors Act 1915 (No. 2667), s. 22 — Justices Act 1915 (No. 2675), ss. 60, 84, 88 (17), 210 — Supreme Court Act 1915 (No. 2733), ss. 55, 79 — Rules of the Supreme Court 1906 — Order XLII., rr. 22, 23.

IN THE MATTER OF THE TRANSFER OF LAND ACT 1915VLR 397

CUSSEN, J.·6 July 1916·Supreme Court of Victoria

Transfer of landCorporation — British corporation — Power to hold land in Victoria — Trusts — Trustee — Public Trustee of England — Power to accept trusteeship relating to land in Victoria — Right to be registered as joint proprietor under Transfer of Land Act — Public Trustee Act 1906 (6 Edw. VII., c. 55) — Companies Act 1915 (No. 2631), s. 271 — Instruments Act 1915 (No. 2672), s. 206 — Conveyancing Act 1915 (No. 2633), s. 54 — Transfer of Land Act 1915 (No. 2740), ss. 18, 55, 248, 249 — Costs of summons — "Special circumstances" — Trusts Act 1915 (No. 2741), s. 14.

WESTCOTT v. RAMSAYVLR 410

CUSSEN, J.·28 June 1916·Supreme Court of Victoria

LicensingBilliard table — "Keeps or maintains" — Person permitted by licensed victualler for consideration to have use for profit of table on licensed premises — Licence — Licensing Act 1915 (No. 2683), ss. 18, 223.

THE KING v. STEEDMANVLR 412

A’BECKETT, J.·24 May 1916·Supreme Court of Victoria

Habeas corpusWard of the Department for Neglected Children — Duty of Secretary, as guardian, to act under the instructions of the Minister — Custody of wards of the Department — Control of Court over Secretary as guardian — Neglected Children's Act 1915 (No. 2703), ss. 9, 25 — Infants' Life Protection Act 1915 (No. 2670), s. 15 (5).

McLINEY v. CAMPBELLVLR 418

CUSSEN, J.·28 June 1916·Supreme Court of Victoria

Motor-carObstruction of street — "Unnecessary obstruction" — Waiting for passenger who has hired car — Motor-car Act 1915 (No. 2702), s. 15 — Regulation 2 (2).

IN RE THE COBDEN AND DISTRICT CHEESE AND BUTTER FACTORY CO. LTD.VLR 421

Per Curiam (MADDEN, C.J., HODGES and CUSSEN, JJ.)·2 June 1916·Supreme Court of Victoria

CompanyAlteration of objects — "Conveniently or advantageously be combined with business of the company" — Scope of alteration permissible — Modification of special resolution — Companies Act 1915 (No. 2631), s. 17 (1) (d), 4.

MacBEAN v. THE TRUSTEES EXECUTORS AND AGENCY COMPANY LIMITEDVLR 425

A’BECKETT, J. (dissenting), read the following judgment·1 June 1916·Supreme Court of Victoria

TrustsTrustees — Remuneration — Trustee company — Commission, rate of — How ascertained — Flat rate — Separate rate for each trust — Future commission — Costs of application to reduce rate of commission — Liability of trustee company — Findings of fact — Jury and Judge — Duty of Court of Appeal — Rules of Supreme Court — Order XXXIX, rr. 1, 1 (b); Order LVIII., r. 1 — The Executors Company's Amendment Act 1885 (No. 842), s. 7.

GRAY v. DALGETY AND CO. LIMITEDVLR 444

[Coram GRIFFITH, C.J., BARTON, ISAACS, HIGGINS, GAVAN DUFFY, RICH, AND POWERS, JJ.]·2 June 1916·In the High Court of Australia

ContractLoan — Agreement, not in writing, to find lender on mortgage — Interest in land — Statute of Frauds — Uncertainty — Certain terms of contract not specified — Exoneration — Rescission, what constitutes — Estoppel — Prior judgment directing new trial — Res judicata — Instruments Act 1890 (No. 1103), s. 208 — Instruments Act 1915 (No. 2672), s. 228.

IN THE WILL OF JOHNSONVLR 502

CUSSEN, J.·6 July 1916·Supreme Court of Victoria

Administration and probateAdministration bond — Sureties — Dispensing with — Public Trustee of South Australia — South Australian letters of administration sealed in Victoria — Administration and Probate Act 1915 (No. 2611), ss. 19, 51.

IN THE ESTATE OF HOWARDVLR 503

CUSSEN, J.·1 Aug 1916·Supreme Court of Victoria

Administration and probateAdministration — Application for — Trustee company — Authority — Next of kin — Person entitled to obtain administration — Person, to whom administration would be granted, of kin of intestate but not entitled to share in estate — Whether such person is one of "next of kin" who may authorize application — The Perpetual Executors and Trustees Association's Act (49 Vict., No. 840), s. 4; Administration and Probate Act 1915 (No. 2611), s. 7 (2).

VINE v. VINEVLR 506

A’BECKETT, J.·24 May 1916·Supreme Court of Victoria

Husband and wifeDivorce — Condonation — Intercourse between petitioner and respondent while petitioner drunk — Marriage Act 1915 (No. 2691), s. 128 — Intervention by Attorney-General.

BISHOP v. DANCEVLR 509

MADDEN, C.J.·10 Aug 1916·Supreme Court of Victoria

Factories and shopsSpecial Boards — Employ engaged in one trade doing work for which rate fixed by Special Board in another trade — What wages to be paid — "Hot cross" buns made by pastrycook — Rate fixed for making "hot cross" buns by Bread Board — Bread, whether buns are — Duplicity — Amendment — Factories and Shops Act 1915 (No. 2650), s. 226 — Bakers and Millers Act 1915 (No. 2617), s. 3 — Justices Act 1915 (No. 2675), s. 85 (1).

IN RE KERRIGANVLR 516

CUSSEN, J.·7 July 1916·Supreme Court of Victoria

WillTrust for sale — As soon after testator's death as conveniently may be — Power to postpone sale — Tenant for life and remaindermen — Real estate — Postponement of sale — Interim rents — Enjoyment in specie — Hotel property — Federal estate duty — Apportionment — Estate Duty Assessment Act (No. 22 of 1914), s. 35.

IN RE THE AUSTRALIAN MIDAS GOLD ESTATES LIMITEDVLR 526

CUSSEN, J.·6 July 1916·Supreme Court of Victoria

CompanyWinding-up — Voluntary liquidation in England — Compulsory liquidation in Victoria — Rights of English creditors in Victorian winding-up — Claim by English liquidator for costs, charges, and expenses of winding-up — Preferential claim — Companies Act 1915 (No. 2631), Part I., s. 212.

THE UNION BANK OF AUSTRALIA LTD. v. LOHMANN AND CO.VLR 530

HOOD, J.·21 June 1916·Supreme Court of Victoria

PracticeWrit of summons — Service — Partnership firm — Foreign partnership — Enemy firm — "Carrying on business within the jurisdiction" — Rules of the Supreme Court 1906, Orders XLVIII.A, rr. 1-3; XII., r. 30.

BUTLER v. FAIRCLOUGHVLR 533

A’BECKETT, J.·27 July 1916·Supreme Court of Victoria

Transfer of landPriority — Equitable mortgage of land — Subsequent transfer without notice — No caveat at date of transfer — Search by transferee — Unregistered interest — Agreement to withdraw transfer — Subsequent re-lodging without notice to mortgagee — Registration of transfer — Fraud — Practice of Titles Office — Caveat treated as lapsed though transfer withdrawn — Transfer of Land Act 1915 (No. 2740), ss. 179, 184, 196-200.

IN THE WILL OF SMITHVLR 540

MADDEN, C.J.·9 Aug 1916·Supreme Court of Victoria

WillSpecific gift — Ademption — Time from which will speaks — Contrary intention — House, subject-matter of devise, sold before death, and another answering description in the will acquired — "My house and land in U.-street, Coburg" — Wills Act 1915 (No. 2749), s. 22.

IN THE WILL OF HUTTONVLR 546

HODGES, J.·11 Aug 1916·Supreme Court of Victoria

WillSpecific gift — Ademption — Change in subject-matter — Interest in a business — Subsequent acquisition of business by limited company — Interest in business disposed of for shares in company.

ZINC CORPORATION LIMITED v. HIRSCHVLR 550

CUSSEN, J.·27 July 1916·Supreme Court of Victoria

PracticeSubstituted service — Defendant alien enemy resident in enemy country — Two modes of service ordered — One ineffective, the other likely to be effective — Motion to set aside ex parte order — Fresh facts, admissibility of — Supreme Court Act 1915 (No. 2), (No. 2590), ss. 2, 3, 5; Supreme Court Act 1915 (No. 2733), ss. 141-145.

TENNANT v. HARRISVLR 557

CUSSEN, J.·17 July 1916·Supreme Court of Victoria

Police offencesDog — Permitting dog to worry another animal — "Permitting," meaning of — Police Offences Act 1915 (No. 2708), s. 17 (9).

HALL v. THE CENTREWAY CAFE CO. PROPRIETARY LTD.VLR 560

MADDEN, C.J., HOOD, J., and CUSSEN, J.·1 Sept 1916·Supreme Court of Victoria

Factories and shopsDetermination of Special Board — Hotel Employees' Board — "Casual work," "casual employee," "employed," meaning of — Short time work — Person employed each week for less than half maximum number of hours fixed — "Persons employed for less than one week's continuous work" — Factories and Shops Act 1909, No. 2 (No. 2241), ss. 5, 9 — Factories and Shops Act 1912 (No. 2386), s. 141 — Factories and Shops Act Amendment Act 1914 (No. 2558), s. 29 — Factories and Shops Act 1915 (No. 2650), s. 141 (1), (4).

HALLETT v. BARRIZVLR 571

MADDEN, C.J.·1 Sept 1916·Supreme Court of Victoria

County CourtRemission of action from Supreme Court — Action within equitable jurisdiction — Specific performance — Alternative claim for damages — Effect of — Application to remit — Delay — Step in action — Effect of — County Court Act 1915 (No. 2636), ss. 50, 124.

HALL v. HALLVLR 576

A’BECKETT, J.·5 Sept 1916·Supreme Court of Victoria

DivorceDissolution of marriage — Desertion — Just cause or excuse — Existence of in absence of matrimonial offence by petitioner — Facts personal to respondent — Whether sufficient cause or excuse — Wife refusing shortly after the birth, after marriage, of child of which husband not the father, to separate herself from her child and return to husband — Whether such refusal justified — Marriage Act 1915 (No. 2691), s. 122.

NEW GOOD HOPE CONSOLIDATED GOLD MINES NO LIABILITY v. STUTTERDVLR 580

A’BECKETT, J.·5 Sept 1916·Supreme Court of Victoria

CompanyNo-liability company — Issue of shares at a discount — Validity of — Agreement to take shares — Amount due in respect of shares payable by instalments — Obligation to pay instalments — Distinction between such obligation and liability for calls — Companies Act 1915 (No. 2631), ss. 97, 413, 414 (6).

IN RE HASSELLVLR 594

[Coram GRIFFITH, C.J., BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·13 Oct 1916·In the High Court of Australia

WillShares in company — Tenant for life and remainderman — Bonuses and dividends — Special distributions out of accumulated profits — "Distribution of assets" — Income or capital — Company carrying on business as tramway proprietors and otherwise — Leases of tramways — Leases about to expire — Principal objects of company ceasing to be operative — Profits accumulated before and after testator's death, but substantially after — Appeal — Costs — Beneficiaries unsuccessfully appealing — Payment out of estate.

McCARTHY v. DAVIESVLR 636

HOOD, J.·3 Oct 1916·Supreme Court of Victoria

EvidenceMember of His Majesty's Forces — How fact may be proved — Acting in capacity — Wearing of uniform — Uncontradicted evidence — Duty of magistrate to accept — Federal War Precautions Act 1914-1916, s. 6 — War Precautions Regulations 1915, reg. 12.

REX v. CONLEYVLR 639

MADDEN, C.J., and CUSSEN, J.·9 Oct 1916·Supreme Court of Victoria

Criminal lawOffence against female between 16 and 18 years of age — Previous intercourse — "Male person" — Pleading — Duplicity — Time of offence — Evidence of several offences within time alleged — Limit of time for prosecution — When prosecution commenced — Crown Case reserved — Jurisdiction — No substantial miscarriage of justice — Crimes Act 1915 (No. 2637), ss. 46, 47, 477, 478, 593, 594.

MORTON v. WALKERVLR 647

HODGES, J.·23 Aug 1916·Supreme Court of Victoria

Local governmentBuildings — Regulation of — Breach of regulations — Evidence — Certificate of official referees — Whether conclusive — Form of certificate — Melbourne Building Act (13 Vict., No. 39), s. 13.

IN THE WILL OF LOBBVLR 651

HOOD, J.·24 Oct 1916·Supreme Court of Victoria

WillConstruction — Income — Gift to children and upon death to grandchildren — Whether vested interest in grandchildren — "If he she or they so dying should leave no child or children."

HOARE v. McCARTHYVLR 656

[Coram GRIFFITH, C.J., BARTON AND ISAACS, JJ.]·24 Oct 1916·In the High Court of Australia

ContractBuilding contract — Conditions — Common printed form — Named architect — "Architect for the time being" — Dismissal of architect by building proprietor during progress of work — Effect — Power of building proprietor to dismiss — Power of dismissed architect to give certificate — Whether dismissal of architect effective until notified to contractor — Estoppel — Finding of fact — Reversal of on appeal.

SCHIFFMAN v. WHITTONVLR 667

[Coram GRIFFITH, C.J., BARTON, GAVAN DUFFY, AND RICH, JJ.]·17 Oct 1916·In the High Court of Australia

CustomsOffence — Interference with goods subject to control of Customs — Evidence — Onus of proof — Averments in information — Absence of proof to contrary — Allegations of mixed law and fact — Allegation of offence in words of Statute — Further allegations of facts showing commission of acts constituting offence — Whether statutory provision as to proof of offence operates — Customs Act 1901-1914, ss. 33, 255.

CAMPBELL v. THE KINGVLR 673

A’BECKETT, J.·25 Oct 1916·Supreme Court of Victoria

Administration and probateSettlement containing trusts or dispositions to take effect after death — Duty — Person taking child of settlor — Half rate "if total value of whole of estate of deceased under 2000l." — "Whole estate of deceased" — Meaning of — Administration and Probate Act 1915 (No. 2611), s. 147, Tenth Schedule, Part III., Clause I. (Proviso).

MacKAY v. ABRAHAMSVLR 681

HOOD, J.·19 Oct 1916·Supreme Court of Victoria

Police offencesObstructing a member of the police force in the execution of his duty — Constable making inquiries in regard to alleged offence — Right to enter private premises — Police Offences Act 1915 (No. 2708), ss. 185, 206.

BARRY v. THE VICTORIAN RAILWAYS COMMISSIONERSVLR 686

A’BECKETT, J., HODGES, J., and HOOD, J.·25 Oct 1916·Supreme Court of Victoria

Workers' compensationAmount of compensation — How determined — Payment, allowance, or benefit received from employer — Railway employ — Pension allowance — Prospective rights — Whether to be regarded in assessing compensation — Workers' Compensation Act 1915 (No. 2750), s. 5 (1), Second Schedule, clauses (1) (b), (3).

MURPHY v. MURPHYVLR 691

HOOD, J.·21 June 1916·Supreme Court of Victoria

FencesVermin-proof dividing fence — Liability to contribute — Condition precedent — Certificate of Chief Inspector for the Suppression of Vermin — Certificate given after service of notice to fence — Jurisdiction — Fences Act 1915 (No. 2651), ss. 7, 8, 20, 22 — Unused Roads and Water Frontages Act 1903 (No. 1894) — Local Government Act 1915 (No. 2686), Part XXXIX. — Whether licensee is an "occupier" within the Fences Act 1915.

BARKER v. BARKERVLR 695

HOOD, J.·10 Oct 1916·Supreme Court of Victoria

DivorceHusband and wife — Nullity, undefended suit for — Bigamy, respondent guilty of — Prosecution for — Whether a condition precedent to petition — Question not raised by pleadings — Marriage Act 1915 (No. 2691), s. 157.

MACHIN v. MACHINVLR 696

[Coram GRIFFITH, C.J., BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·10 Mar 1916·In the High Court of Australia

PracticeAppeal — High Court — Appeal from Supreme Court of State — Divorce — Desertion — Undefended suit — Service of notice of appeal — Rules of High Court of Australia, 1911 — Part I., Order LV., rr. 2, 6; Part II., s. 3, rr. 1, 4 — Marriage Act 1915 (No. 2691), s. 122.

IN THE WILL OF DOIGVLR 698

HOOD, J.·30 Nov 1916·Supreme Court of Victoria

WillGift to trustees — Beneficial or upon trust — Memorandum — Attempted incorporation of in will by reference — Verbal trust — Whether effective — Restrictive condition in grant of probate — "German subject" — No payment without consent of Crown — Effect — Australian-born woman marrying German subject — Status — Alien — When an alien enemy — Residence in Victoria — Right to hold property — Naturalization Act 1870 (33 Vict., c. 14), s. 10 — Supreme Court Act 1915 (No. 2733), s. 58.

WESTCOTT v. HURLEYVLR 706

HOOD, J.·15 Nov 1916·Supreme Court of Victoria

LicensingSale of liquor on licensed premises during unauthorized hours — Sale — Whether delivery on licensed premises essential — Evidence — Admissibility — Statements made in presence of accused person — Licensing Act 1915 (No. 2683), ss. 177, 238.