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[1917] VLR(106 results)

Cases reported in this volume of the Victorian Reports

IN THE WILL OF MATHEWSVLR 1

HODGES, J.·10 Aug 1916·Supreme Court of Victoria

WillConstruction — Mis-description — Falsa demonstratio — "Equally divided" — Division per capita and not in moieties.

IN RE THE FOSTER AND DISTRICT CO-OPERATIVE BUTTER FACTORY LTD.VLR 5

CUSSEN, J.·5 Sept 1916·Supreme Court of Victoria

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

KEOGH v. DALGETY AND CO. LIMITEDVLR 11

[Coram GRIFFITH, C.J., BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·27 Oct 1916·In the High Court of Australia

Principal and AgentMortgage — Contract to obtain loan on — Secret profit made by agent — Agent guaranteeing, for a consideration, repayment of loan — Non-disclosure — Remedy of principal — Fiduciary relation — Account between parties — Whether secret profit should be credited to account or paid to principal.

IN THE MATTER OF THE WAR PRECAUTIONS (MORATORIUM) REGULATIONSVLR 32

HODGES, J.·20 Dec 1916·Supreme Court of Victoria

War Precautions Act 1914-1916 (Moratorium) RegulationsStatutory Rules 1916 (No. 284) — Principle on which applied — Mortgagees' applications.

TUCKETT v. BRICEVLR 36

MADDEN, C.J.·30 Oct 1916·Supreme Court of Victoria

EasementAccess of air — City of Melbourne Building Act (13 Vict., No. 39), ss. 3, 4, 32 — External wall — Openings left when built — Whether within s. 32 — Easement gained by user for 20 years — Effect on rights under s. 32 — Pleading easement — Sufficiency of plea — Lost grant — Mortgagee in possession — Title by adverse possession — Assignment by registered proprietor to trustees for benefit of creditors — Agreement under seal by mortgagee and one of trustees and registered proprietors of servient tenement — Release of easement and licence to maintain openings — Subsequent transfer by mortgagee of dominant tenement to purchaser of estate of registered proprietor in dominant tenement — Caveat to protect agreement — Notice to purchaser — Clean certificate of title to purchaser — Validity of release and licence — Whether purchaser bound by release — Order XXV., r. 5, of Rules of Supreme Court 1906 — Declaratory judgment — Real Property Act 1915 (No. 2719), s. 43 — Transfer of Land Act 1904 (No. 1931), s. 10 — Transfer of Land Act 1915 (No. 2740), ss. 4, 72, 87, 148.

GREGORY v. CRYANVLR 63

MADDEN, C.J.·6 Dec 1916·Supreme Court of Victoria

County CourtAppeal — Notice of appeal — Service — Time for — Service after four o'clock — Effect of — Security for costs of appeal — Deposit of money — Notice to respondent — Whether condition precedent — County Court Act 1915 (No. 2636), ss. 133, 148 — County Court Rules 1891, r. 385 — Rules of the Supreme Court 1916, Order LXIV., r. 11; Order LXX., rr. 1, 1 (a).

BUNKER v. MAHONEYVLR 65

HOOD, J.·7 Feb 1917·Supreme Court of Victoria

LicensingLicensing Act 1915 (No. 2683), s. 161 — Intoxicating Liquor (Temporary Restriction) Act 1915 (No. 2584), 7 (b) — Sale of liquor — Onus of proof — Evidence, uncontradicted — Justices — Stating reasons for decision.

IN THE WILL OF BLYTHVLR 68

HOOD, J.·28 Nov 1916·Supreme Court of Victoria

TrustsTrust moneys paid into Court — Payment out — Application for — How made — Petition — Trusts Act 1915 (No. 2741), s. 63.

ALDOM v. DUNNVLR 70

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

JusticesOrder to review — Powers of Supreme Court — Question of fact — No conflict of evidence — No question of credibility — Decision opposed to only reasonable inference from evidence — Test applied by Supreme Court — Justices Act 1915 (No. 2675), ss. 150, 155.

MATTER OF THE WAR PRECAUTIONS (MORATORIUM) REGULATIONSVLR 74

HOOD, J.·14 Feb 1917·Supreme Court of Victoria

War precautionsWar Precautions Act 1914-15 — Moratorium Regulations — Statutory Rules 1916, No. 283, clause 13 (1) — Proceedings against a member of the Forces — Hardship to female dependant.

MATTER OF THE WAR PRECAUTIONS (MORATORIUM) REGULATIONSVLR 76

HOOD, J.·22 Feb 1917·Supreme Court of Victoria

War PrecautionsWar Precautions Act 1914-1916 (Moratorium) Regulations — Statutory Rules, 1916, No. 284 — Application for leave — Persons entitled to be heard — Second mortgagee.

REX v. TOMESVLR 78

A’Beckett, Hodges, and Cussen, JJ.·1 Feb 1917·Supreme Court of Victoria

Criminal lawEvidence — Carnally knowing girl under sixteen years of age — Certificate of birth — Identity — Statements as to name and date of celebration of birthday — Hearsay — Personal appearance — Crimes Act 1915 (No. 2637), s. 44 — Registration of Births, Deaths, and Marriages Act 1915 (No. 2720), ss. 8, 10, 50.

BASTOW v. THE COLLECTOR OF IMPOSTSVLR 81

Madden, C.J., A’Beckett, J., Hodges, J., Hood, J., and Cussen, J.·5 Feb 1917·Supreme Court of Victoria

StampsDuty — Contract for purchase of land — Sale of part — Transfer by original seller to sub-purchasers — Transfer of balance to original purchaser — "Amount or value of the consideration for the sale" — Rate of duty — Stamps Act 1915 (No. 2728), ss. 17, 22, 68, Third Schedule, VI. (B) (4).

HARRIS v. CARNEGIE’S PTY. LTD.VLR 95

A’BECKETT, J.·20 Dec 1916·Supreme Court of Victoria

NuisanceRebuilding operations — Injury to goods in neighbouring tenement caused by dust — Independent contractor — Liability of owner — Landlord and tenant — Covenant for quiet enjoyment — Breach — Damages — Travelling and hotel expenses.

UNION BANK OF AUSTRALIA LIMITED v. CLARKEVLR 105

HOOD, J.·15 Feb 1917·Supreme Court of Victoria

War precautionsMoratorium — Guarantor — How affected — Creditor's right to sue principal debtor suspended — Whether right to sue guarantor thereby affected — War Precautions Act 1914-1916, s. 4 — War Precautions (Moratorium) Regulations: Statutory Rules 1916, No. 284, No. 324; 1917, No. 13.

WEBSTER v. OPITZVLR 107

HOOD, J.·1 Mar 1917·Supreme Court of Victoria

LicensingSunday trading — Licensed premises — Inn — Non-intoxicating liquor, sale of — Sunday — Business of licensed victualler — Police Offences Act 1915 (No. 2708), s. 49 — Licensing Act 1915 (No. 2683), s. 318.

IN THE WILL OF CHILDSVLR 112

HOOD, J.·22 Feb 1917·Supreme Court of Victoria

WillCharity — Gift to — Bequest for masses for testator's soul — Not a charitable purpose — Gift to be divided between charitable institutions as a named person thinks fit — General charitable intention — Cy-prs.

HOWELL v. BULLENVLR 115

HOOD, J.·23 Oct 1916·Supreme Court of Victoria

PracticeAttachment — Costs of order to review — Non-compliance with order for payment — Copy affidavit of service — Notice of motion — Copy not served with — Imprisonment of Fraudulent Debtors Act 1915 (No. 2667), ss. 3, 4 — Rules of Supreme Court 1906, Order LII., r. 4.

SINCLAIR v. SMITHVLR 118

HOOD, J.·21 Feb 1917·Supreme Court of Victoria

Factories and ShopsFactories and Shops Act 1915 (No. 2650), ss. 133, 171 — Special Board — Determination — Two determinations dealing with same subject — Builder's labourer — Asphalter's labourer — Meaning of.

IN RE KERRIGANVLR 124

Madden, C.J., and Cussen, J.·2 Mar 1917·Supreme Court of Victoria

WillTrust for sale — Postponement of sale — Lease — Jurisdiction to authorize lease for definite period — Settled Land and Estates Act 1915 (No. 2725), ss. 132-136.

IN THE WILL OF WRIGHTVLR 127

Madden, C.J., A’Beckett, J., and HOOD, J.·12 Mar 1917·Supreme Court of Victoria

WillCharity — Gifts to charities of income of funds directed to be invested by the trustees — Charities not entitled to call for payment to them of corpus — Parties — Joinder of Attorney-General.

R. v. LOWEVLR 155

A’Beckett, J., Hodges, J., and Cussen, J.·1 Mar 1917·Supreme Court of Victoria

Criminal lawMens rea — Wilfully making false statements — Honest belief in right to make — Mistake of law — Registration of Births, Deaths, and Marriages Act 1915 (No. 2720), s. 22.

IN RE LEWISVLR 164

HOOD, J.·28 Feb 1917·Supreme Court of Victoria

InsolvencyCompulsory sequestration — Petition and order nisi — Statement therein that debt wholly unsecured — Debt in fact a secured debt — Security of no value — Whether defect fatal — Whether curable by statement of counsel on return of order nisi that petitioning creditor willing to give estimate of value of security — Amendment, power of — Insolvency Act 1915 (No. 2671), ss. 35 (2), 41, 49.

MORRIS v. THE CITY OF PRAHRANVLR 170

A’BECKETT, J.·23 Mar 1917·Supreme Court of Victoria

Marine storesLicence as dealer — Application for — Powers of justices — Consent of Council not obtained — Consent not a condition precedent — Marine Stores and Old Metals Act 1915 (No. 2689), s. 28 — Health Act 1915 (No. 2665), s. 286.

IN RE McINNESVLR 173

HOOD, J.·16 Feb 1917·Supreme Court of Victoria

Administration and probateGrant of letters of administration — Sureties to bond — Secured creditors — Notice to — Dispensing with sureties — Practice — Administration and Probate Act 1915 (No. 2611), s. 18.

BUTLER v. FAIRCLOUGHVLR 175

[Coram GRIFFITH, C.J., BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·29 Mar 1917·In the High Court of Australia

Transfer of landPriority — Equitable mortgage of land — Subsequent transfer without notice — No caveat at date of search by transferee — Unregistered interest — Agreement to withdraw transfer — Subsequent re-lodging without notice to mortgagee — Registration of transfer — Careat treated by Office of Titles as lapsed, although transfer withdrawn — Practice of Office of Titles — Amending Act — Transfer of Land Act 1915 (No. 2740), ss. 67, 72, 179, 184, 196-200 — Transfer of Land Act 1916 (No. 2849), s. 12 — Parties — Joinder of original registered proprietor — "Fraud" — What constitutes — Contract — Consideration — Forbearance to sue — Mutual mistake as to rights.

HALL v. HALLVLR 202

[Coram GRIFFITH, C.J., BARTON, ISAACS, AND RICH, JJ.]·14 Mar 1917·In the High Court of Australia

DivorceDesertion — Just cause or excuse — Wife refusing shortly after the birth, after marriage, of child of which husband not the father, to separate herself from child and return to husband — Whether such refusal justified — Marriage Act 1915 (No. 2691), s. 122 (a).

OLSON v. JOHNSONVLR 206

HOOD, J.·13 Mar 1917·Supreme Court of Victoria

Police offencesPolice Offences Act 1915 (No. 2708), s. 72 (9) — Suspected person — "Loitering" — Evidence of.

DOWLING v. DOWLINGVLR 208

A’BECKETT, J.·5 Mar 1917·Supreme Court of Victoria

SettlementAfter acquired property — Covenant to assign to trustees — Contingent interest — Interest of settlor as next of kin under a will in event of death of beneficiary under 25 — Settlor surviving testator but predeceasing beneficiary — Contingent interest caught by covenant.

McCANN v. BUTCHERVLR 214

CUSSEN, J.·11 Apr 1917·Supreme Court of Victoria

Police offencesStreet betting — "Street" — Meaning of — Enclosed ground — Access restricted — Charge for admission — Whether a "street" — Unrestricted access — Colourable attempt at or pretence of restriction — Effect of — Police Offences Act 1915 (No. 2708), ss. 33, 104, 106, 150.

ROBINSON v. HOLDSWORTHVLR 218

CUSSEN, J.·11 Apr 1917·Supreme Court of Victoria

PracticeCosts — Scale — Judgment for sum not exceeding 50l. — Special order — Time for application — Judge in Chambers — Jurisdiction to make — Rules of the Supreme Court 1916, Order LXV., r. 12.

FALKINER v. WHITTONVLR 222

[Coram LORD BUCKMASTER, L.C.; LORDS ATKINSON, PARKER, SUMNER, AND WRENBURY.]·1 Dec 1916·Privy Council

CustomsDuty — Classification for — Motor cars, lorries, and waggons — Chassis — Motor engines and trailers — Action to recover duty alleged to have been overpaid — Payment under protest — Customs Tariff 1908-1911 — Customs Act 1901-1910, s. 167.

WALKER v. WALBRANVLR 231

CUSSEN, J.·11 Apr 1917·Supreme Court of Victoria

PracticeTrial, mode of — Jury — Right to — Cause previously "within the cognizance of the Court in its Equitable Jurisdiction" — Action on promise of testator to leave bequest as remuneration for work done — Rules of Supreme Court 1906 and 1916 — Order XXXVI., rr. 3, 4, 6, 7a — Supreme Court Act 1915 (No. 2733), s. 16.

R. v. GARRETTVLR 238

CUSSEN, J.·2 Mar 1917·Supreme Court of Victoria

Criminal lawProcedure — Prisoners jointly presented — Evidence on oath and statements — Right of reply — Order of addresses and evidence — Crimes Act 1915 (No. 2637), s. 449 — Crimes Act 1915 (No. 2) (No. 2789), ss. 2 (8) (9).

DUNCAN v. JAMES MOORE AND SONS PTY. LTD.VLR 240

MADDEN, C.J.·18 Apr 1917·Supreme Court of Victoria

Factories and shopsMaster and servant — Apprenticeship, indenture of — Form prescribed by Woodworkers' Board — Wages, non-payment during period works closed — Factories and Shops Act 1915 (No. 2650), s. 188.

LOCKHART v. McLEANVLR 243

HOOD, J.·8 Apr 1917·Supreme Court of Victoria

InsolvencyAction for declaration that plaintiffs entitled to land and proceeds of crop and for interest and damages — Sequestration of defendant's estate, effect of — Insolvency Act 1915 (No. 2671), s. 174.

IN RE HARTVLR 247

HODGES, J.·15 May 1917·Supreme Court of Victoria

EvidencePractice — Application to seal South Australian probate — Affidavit made out of Victoria — South Australia — Justice of the peace of that State — Authority to administer an oath in that State — Purported authority — Judicial notice — Evidence Act 1915 (No. 2647), s. 116 — Administration and Probate Act 1915 (No. 2611), s. 51.

IN RE GILLOTTVLR 249

HODGES, J.·8 May 1917·Supreme Court of Victoria

WillExecutrix — Passing accounts — Commission — Application under liberty to apply in order on originating summons — Costs — Whether out of estate — Administration and Probate Act 1915 (No. 2611), s. 34.

IN RE McMICHAELVLR 251

HODGES, J.·17 May 1917·Supreme Court of Victoria

WillExecutor — Passing accounts — Commission — Application under originating summons — Accounts already accepted by beneficiaries — Costs of application — Payment by executor — Commission sole object of summons — Administration and Probate Act 1915 (No. 2611), s. 34.

WEBSTER v. LUCHINGERVLR 254

HODGES, J.·9 May 1917·Supreme Court of Victoria

EducationFailure to cause child to attend State school — Reasonable excuse — Illegitimate child — Subsequent marriage of parents — Whether father liable — Contradictory views of parents — Education Act 1915 (No. 2644), ss. 25, 30, 34.

R. v. SEFTONVLR 259

CUSSEN, J.·2 May 1917·Supreme Court of Victoria

Criminal lawMurder — Bail, subject to accused reporting himself to police — Special circumstances — Necessity for personal inquiry for evidence.

LEVINGSTON v. PRESIDENT, ETC., OF THE SHIRE OF HEIDELBERGVLR 263

Madden, C.J., Hodges, J., and Hood, J.·4 Apr 1917·Supreme Court of Victoria

Local governmentBy-law — Validity of — Hoardings, construction of — Advertisements, affixing of — Prohibition of unless with consent of council — Absence of provision as to nature of hoarding or advertisement permitted or prohibited — Discretion of council — Unreasonableness — Absence of appeal — Local Government Act 1915 (No. 2686), s. 198 — Supreme Court Act 1915 (No. 2733), s. 203 — Rule nisi to quash.

LONG v. THE COMMERCIAL TRAVELLERS’ ASSOCIATION OF VICTORIAVLR 278

Madden, C.J., Hodges, J., and Hood, J.·1 May 1917·Supreme Court of Victoria

PracticeAscertainment of damages — Mode of — Default in delivery of defence — Interlocutory judgment entered — Whether damages to be ascertained by Prothonotary or jury — Facts to be regarded — Difficulty of assessment — Rules of the Supreme Court 1916 — Order XXVII., r. 4.

CLARKE v. THE UNION BANK OF AUSTRALIA LIMITEDVLR 284

[Coram BARTON, ISAACS, AND RICH, JJ.]·17 May 1917·In the High Court of Australia

PracticeSpecially indorsed writ — Final judgment — Leave to defend — When to be allowed — Arguable defence — War precautions — Moratorium — Whether applicable — "Mortgagor," meaning of — Whether guarantor of debt secured by mortgage included — "Fluctuating advance" by way of bank overdraft, meaning of — War Precautions Act 1914-1916, s. 4 — War Precautions (Moratorium) Regulations, Statutory Rules 1916, No. 284, No. 324; 1917, No. 13, No. 76 — Rules of the Supreme Court 1916 — Order XIV., r. 1.

IN RE KILLEENVLR 287

MADDEN, C.J.·30 Apr 1917·Supreme Court of Victoria

Barrister and solicitorArticled clerk — Articles — Evidence of having passed examinations — Failure to produce before entering into articles — Enlargement of time for production of evidence — Power to order in such case — Consolidated Rules for the Admission of Barristers and Solicitors, 19th April 1915, rr. 19, 40.

THE ZINC CORPORATION LTD. v. HIRSCHVLR 289

HOOD, J.·8 May 1917·Supreme Court of Victoria

ContractSuspensory clause — War, effect of — Contract dissolved as to future performance — Claim for price of goods sold and delivered before war — Price to be fixed by London quotations — London quotations ceasing to represent world's market — Whether right to recover price terminated or suspended — Implied condition — Alien enemy — Liability to be sued — Intercourse with enemy, what is — Australian agent of alien enemy — How far authority of revoked by war — Enemy Contracts Cancellation Act 1915 (No. 2063) — Commonwealth Enemy Contracts Annulment Act, No. 11 of 1915.

KEOGH v. DALGETY AND CO. LTD.VLR 309

HODGES, J.·9 May 1917·Supreme Court of Victoria

PracticeJudgment of Supreme Court — Appeal to High Court of Australia — Variation of judgment — Order for payment — Interest on judgment debt — Date from which payable — Supreme Court Act 1915 (No. 2733), s. 181 — Judiciary Act, No. 6 of 1903, s. 37.

DAVIDSON v. THE AUSTRALIAN SOCIETY OF PROGRESSIVE CARPENTERS AND JOINERSVLR 312

[Coram BARTON, ISAACS, AND RICH, JJ.]·17 May 1917·In the High Court of Australia

Conciliation and arbitrationOrganization — Branch — Separate authority of — Recovery of contributions from member — Whether proceedings may be taken by and in name of branch — Commonwealth Conciliation and Arbitration Act 1904-1915, ss. 4, 68.

R. v. POTTAGEVLR 317

HOOD, J.·12 June 1917·Supreme Court of Victoria

Criminal lawLarceny — Appeal — Bail — Special circumstances — Appeal not heard for two months — Crimes Act 1915 (No. 2637), ss. 605, 608.

IN THE WILL OF ROSSVLR 318

HODGES, J.·21 May 1917·Supreme Court of Victoria

WillInterpretation — Gift for donee's own use — Gift over of "what is left" — Life estate and remainder — No repugnancy or uncertainty.

IN RE ELLIOTTVLR 322

HODGES, J.·5 June 1917·Supreme Court of Victoria

Administration and probateProbate — Soldier's will — Testator under twenty-one years of age — "Being in actual military service" — Wills Act 1915 (No. 2749), ss. 6, 10.

IN THE WILL OF RAWESVLR 323

HODGES, J.·28 May 1917·Supreme Court of Victoria

WillInterpretation — Misdescription — Bequest of funds under settlement — Previous revocation of settlement — Transfer of securities of funds to testatrix.

UNION BANK OF AUSTRALIA LIMITED v. CLARKEVLR 329

CUSSEN, J.·6 June 1917·Supreme Court of Victoria

War precautionsMoratorium — Practice — Pleading — Fluctuating advance made by way of bank overdraft — Application for determination that Moratorium Regulations should apply — Whether application may be made by way of defence to action — Statement in defence that such application will be made — Whether proper — War Precautions (Moratorium) Regulations: Statatory Rules 1916, Nos. 284 and 342; 1917, Nos. 13 and 76 — Rules of Supreme Court 1916 — Order XIX., r. 27.

THE AUSTRALIAN WORKERS’ UNION v. COLESVLR 332

A’BECKETT, J.·23 May 1917·Supreme Court of Victoria

Conciliation and arbitrationPowers of registered organization — Publication of newspaper — Whether ultra vires — Commonwealth Conciliation and Arbitration Act 1904-1915, ss. 55, 58, 66, Schedule B.

JOHNSON v. TEMPLETONVLR 339

HODGES, J.·14 June 1917·Supreme Court of Victoria

Transfer of LandAdverse possession — Application for vesting order — Applicant not in possession at time of application — Registered owner in possession — Transfer of Land Act 1915 (No. 2740), ss. 72, 87, 89, 244, 248, Schedule VI.; Transfer of Land Act 1916 (No. 2849), s. 28.

McGRATH v. BRADYVLR 346

MADDEN, C.J.·20 June 1917·Supreme Court of Victoria

Police offencesObscene pictures — Wilfully exposing to view in a public place — What is — Police Offences Act 1915 (No. 2708), s. 72 (4).

O’TOOLE v. BENNETTVLR 351

CUSSEN, J.·29 May 1917·Supreme Court of Victoria

Police offencesHighway — Obstruction — Cart remaining across road — Reasonable user — Lawful user — Use of street for exchange of goods between carriers — Police Offences Act 1915 (No. 2708), s. 5 (14) — Practice — Order to review — Test case — Affidavit of facts not before justices.

STEWART v. KELLYVLR 359

A’BECKETT, J.·19 June 1917·Supreme Court of Victoria

LicensingLease — Reduction of hours of trading — Adjustment of rent — Agreement between the parties — Lease of hotel, transfer of — Fine on transfer — Refusal of consent, whether reasonable — "Provision to the contrary" — Conveyancing Act 1915 (ss. 24, 25) — Intoxicating Liquor (Temporary Restriction) Act 1915 (No. 2584) — Licensing (Rents and Fees Adjustment) Act 1915 (No. 2776), s. 4 — Intoxicating Liquor (Temporary Restriction) Act 1916 (No. 2827) — Licensing Act 1916 (No. 2855), s. 49, 2nd Schedule, clause (d).

SHAW v. DENATVLR 365

HODGES, J.·30 May 1917·Supreme Court of Victoria

LicensingDrinking on unlicensed premises during prohibited hours — "Subsequent offence" — Previous offence against repealed Act — Intoxicating Liquor (Temporary Restriction) Act 1915 (No. 2584), s. 5 — Licensing Act 1916 (No. 2855), s. 22.

RUSSELL v. WATSONVLR 368

MADDEN, C.J.·27 June 1917·Supreme Court of Victoria

Thistle ActFailure to destroy thistles — Notice to owner or occupier — Notice served on firm — Information against individual members — Insufficiency of notice — Thistle Act 1915 (No. 2736), s. 4.

THE PERPETUAL EXECUTORS AND TRUSTEES ASSOCIATION OF AUSTRALIA LTD. v. WRIGHTVLR 372

[Coram BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·13 June 1917·In the High Court of Australia

TrustHusband and wife — Title to land and money in Savings Bank in name of deceased wife — Claim by husband to land and money — Secret written declaration of trust by wife — Property put into wife's name for purpose of defeating future creditors — Illegality — Intention to defeat creditors not carried out — Right of husband to recover property — Trusts Act 1915 (No. 2741), s. 71 — Married Woman's Property Act 1915 (No. 2692), ss. 5, 10, 13 — Stamps Act 1915 (No. 2728), 3rd Schedule, IX. (2) — Declaration as evidence of existing trust only — Appeal — Question of fact — Attitude of appellate Court.

HOLLAND v. JONESVLR 392

[Coram BARTON, A.C.J., ISAACS AND GAVAN DUFFY, JJ.]·21 May 1917·In the High Court of Australia

War precautionsStatements prejudicial to recruiting — Consent to prosecution — Official signature of Minister — Judicial notice — "Particular" and "general" facts — Abetting in making statements — What constitutes — War Precautions Act 1914-1916, s. 6 (3A) — Statutory Rules, No. 28 of 1915 — Commonwealth Evidence Act (No. 4 of 1905), s. 4.

HUGHES v. WATSONVLR 398

A’BECKETT, J., HOOD, J., and CUSSEN, J.·27 June 1917·Supreme Court of Victoria

PracticeEvidence — Interrogatories — Libel — Privilege — Answer tending to criminate — Extent of privilege — Form of objection to answer — Evidence Act 1915 (No. 2647), ss. 26, 29 — Rules of Supreme Court 1916 — Order XXXI., rr. 6, 11.

R. v. McNAMARAVLR 407

MADDEN, C.J., and A’BECKETT and CUSSEN, JJ.·25 Oct 1916·Supreme Court of Victoria

Criminal lawLarceny — Receiving stolen goods — Proof of ownership — Evidence — Admissibility — imported goods — Marks and brands on goods corresponding with marks and brands on goods referred to in shipping documents.

IN RE THE OPERATIVE MASONS’ SOCIETY OF VICTORIAVLR 411

HODGES, J.·27 June 1917·Supreme Court of Victoria

Court of Industrial AppealsRemission of matter to Special Board for review — Jurisdiction — Cost of living — Ground of remission — Factories and Shops Act 1915 (No. 2650), ss. 176, sub-s. (9), 179, 180.

THE KING v. FLOYDVLR 414

MADDEN, C.J.·31 July 1917·Supreme Court of Victoria

County CourtPractice — Interrogatories — Second set — Jurisdiction — County Court Act 1915 (No. 2636), s. 81.

GIVENS v. DAVID SYME & CO.VLR 418

A’BECKETT, J., HODGES, J. and HOOD, J.·27 June 1917·Supreme Court of Victoria

DefamationPleading — Libel — Report of Parliamentary proceedings — Composite plea of fair report and fair comment — Comment in form of statement of fact — Particulars under plea of fair comment — Rules of Supreme Court 1916 — Order XIX., r. 27 — Application to strike out — Existence of basis for comment — When to be finally ascertained — Determination by Judge at trial.

GIVENS v. DAVID SYME & CO.VLR 437

CUSSEN, J.·17 July 1917·Supreme Court of Victoria

DefamationLibel — Report of Parliamentary proceedings — Fair comment, basis of — Fair report — Matters material to interpretation of words complained of — Speeches in Parliament — Context, limited use of — Mitigation of damages.

R. v. O’DONOGHUEVLR 449

MADDEN, C.J., HODGES, J., and HOOD, J.·3 Aug 1917·Supreme Court of Victoria

Criminal lawEvidence — Admissibility — Charge of false pretences — Introduction in cross-examination of Crown witness of evidence irrelevant to particular charge, but capable of influencing jury in relation thereto — Right of Crown to call explanatory evidence — Appeal — Crimes Act 1915 (No. 2637), Part V.

LONG v. THE COMMERCIAL TRAVELLERS’ ASSOCIATION OF VICTORIAVLR 453

CUSSEN, J.·19 June 1917·Supreme Court of Victoria

EvidencePhysician or surgeon — Patient — Privilege — Divulging information — Honorary physician to public hospital — Evidence Act 1915 (No. 2647), s. 28.

R. v. GOULDVLR 454

MADDEN, C.J.·16 Aug 1917·Supreme Court of Victoria

Criminal lawPoor prisoner — Application for legal aid for defence — Poor Prisoners Defence Act 1916 (No. 2831), ss. 2, 3 — Regulations, First Schedule.

EDDY v. EDDYVLR 456

MADDEN, C.J., HODGES, J., and HOOD, J.·9 Aug 1917·Supreme Court of Victoria

DivorceDesertion — Separation by mutual consent — Wife's consent not directly revoked — Intent by husband to desert inferred from conduct — Marriage Act 1915 (No. 2691), s. 122 (a) — Evidence of facts undisputed — Power of appellate Court to draw inferences contrary to those drawn by trial Judge.

MORRIS v. MOGGVLR 462

MADDEN, C.J.·18 July 1917·Supreme Court of Victoria

Sheep dippingSheep Dipping Act 1915 (No. 2727), ss. 3, 4 (1) — Failure to dip sheep — "Owner" — "Sheep-owner" — Sale of sheep "off shears," cash on delivery — Passing of property — "Right, title, or interest to or in any sheep" — Goods Act 1915 (No. 2663), ss. 22, 23, 33.

STONEHOUSE v. BONDVLR 467

HOOD, J.·22 Aug 1917·Supreme Court of Victoria

Attachment of debtGarnishors and garnishee — Priority of claims — Garnishee paying without going into Court — Another garnishor seeking to make absolute his order nisi — Position of — Justices Act 1915 (No. 2675), ss. 125 to 128, Second Schedule, Forms 70 and 71 — Rules of the Supreme Court 1916 — Order XLV., r. 1.

IN THE MATTER OF TRAMWAY BOARD ACT 1915VLR 472

MADDEN, C.J., HODGES, J., and HOOD, J.·1 June 1917·Supreme Court of Victoria

TramwaysCable tramways — Statutory acquisition of land, buildings, rolling stock, cables, plant, and other accessories belonging to Tramway Company on termination of its leases of tramway lines — Vesting in Tramway Board — Company prohibited from continuing operations in metropolitan area — Arbitration — "Compensation" — Lands Compensation Act 1915 (No. 2678) — No allowance to be made for compulsory acquisition — Principles to be applied — "Structural cost, less depreciation" — "Loss" to company — Possibility or probability of conversion of tramway system into electrical system — Obsolescence of rolling stock, etc. — Interest — The Tramway Board Act 1915 (No. 2818), ss. 30, 33, 34, 46, 48, 50.

R. v. HENRYVLR 525

MADDEN, C.J.·15 Aug 1917·Supreme Court of Victoria

Criminal lawPlea of guilty — Effect — Admission of all material facts.

THE KING v. THE COMMISSIONER OF TAXESVLR 526

HODGES, J.·7 Sept 1917·Supreme Court of Victoria

Administration and probateExecutor's statement — Inclusion of debt or liability — Contingent amount — Request to Commissioner to state Special Case — Refusal — Discretion — Mandamus — Administration and Probate Act 1915 (No. 2611), s. 124.

IN RE THE WILL OF MOORHOUSEVLR 530

HODGES, J.·5 Sept 1917·Supreme Court of Victoria

Administration and probateEnglish probate — Attorney of English executors — Probate sealed in Victoria — Victorian assets — Application by Victorian executor for leave to pass accounts and for commission — No beneficiary in Victoria — Motion ex parte — Costs of applicant out of estate — Administration and Probate Act 1915 (No. 2611), s. 34.

MAYOR, ETC., OF BENDIGO v. BURKEVLR 531

HOOD, J.·29 Aug 1917·Supreme Court of Victoria

Local governmentRates — Liability for — Land belonging to municipality — Tenant in occupation — No agreement as to rates — Right of tenant to set off against rent — Local Government Act 1915 (No. 2686), ss. 249, 265, 314, 318, 319.

IN RE HORSFALL’S SETTLEMENTSVLR 535

MADDEN, C.J., HODGES, J., and HOOD, J.·4 Sept 1917·Supreme Court of Victoria

Administration and probateSettlement — Duty — Gift to persons in being with limitations to persons who may not be in being at death of settlor — Whether gift inter vivos — Death of settlor within twelve months of settlement — Settlement of proceeds of contract for sale of land in New South Wales — Settlor domiciled and resident in Victoria — Purchaser domiciled and resident in New South Wales — Locality of debt irrelevant — Victorian assets — Administration and Probate Act 1915 (No. 2611), s. 143.

McCANN v. BUTCHERVLR 548

[Coram BARTON, A.C.J., GAVAN DUFFY AND POWERS, JJ.]·18 Sept 1917·In the High Court of Australia

Police offencesStreet betting — "Street" — Meaning of — Enclosed ground — Access restricted — Charge for admission — "Enclosed or unenclosed land" — Construction of Statute — Effect of context on unambiguous words — Police Offences Act 1915 (No. 2708), ss. 33, 104, 106.

R. v. McMENAMINVLR 552

HOOD, J.·11 Sept 1917·Supreme Court of Victoria

Criminal lawPerjury — Appeal — Bail — Special circumstances — Appeal to be heard at next sittings of Full Court — Crimes Act 1915 (No. 2637), ss. 605, 608.

BENJAMIN v. HONANVLR 554

HOOD, J.·27 Aug 1917·Supreme Court of Victoria

PracticeRules of the Supreme Court 1916 — Order III., r. 6 — Debt or liquidated demand arising under contract for sale of land — Interest on unpaid purchase-money — Application under Order XIV., r. 1.

LAYCOCK v. VICTORIAN RAILWAYS COMMISSIONERSVLR 556

MADDEN, C.J., HODGES, J., and HOOD, J.·5 Sept 1917·Supreme Court of Victoria

Lands compensationCompulsory taking of land — Notice to treat — Withdrawal — Simultaneous service of second notice to treat — Date of assessment of compensation — Damage done to remaining land by works on land not acquired from owner — Whether compensation payable for — Interest — Date of possession and date of award — Lands Compensation Act 1915 (No. 2678), s. 35.

TEESE v. REVILLVLR 569

HODGES, J.·5 Sept 1917·Supreme Court of Victoria

EvidencePublic place — Licensed billiard-room — Proof of licence — Non-production of document — Cross-examination of defendant — Questions as to character and convictions — Effect on justices' minds — Police Offences Act 1915 (No. 2708), ss. 21, 27 — Crimes Act 1915 (No. 2), (No. 2789), s. 2 (5).

EDEBOHLS v. FOYVLR 573

HOOD, J.·22 Aug 1917·Supreme Court of Victoria

Principal and agentCommission — Purchaser introduced — Unwilling to sign contract — Withdrawal of agent's authority — Subsequent sale by another agent to same purchaser — When agent's work is completed — Signature of contract.

THE KING v. THE REGISTRAR OF TITLESVLR 576

CUSSEN, J.·1 Oct 1917·Supreme Court of Victoria

Transfer of landAcquisition of land by Commonwealth — Interest acquired by notification in Gazettee — Easements of light and air — Buildings to be erected in future — Registration of such easements — Transfer of Land Act 1915 (No. 2740), ss. 4, 62, 238 — (Commonwealth) Lands Acquisition Act 1906, ss. 5, 13, 14, 15, 20 — (Commonwealth) Judiciary Act (No. 6 of 1903 and No. 8 of 1907), s. 40A.

R. v. JOHANSENVLR 584

MADDEN, C.J., and CUSSEN, J.·11 Sept 1917·Supreme Court of Victoria

Criminal lawEvidence — Matters applicable to one count but not to another — Direction of Judge as to — Joinder of counts — When permissible — Part of a series of offences of the same or a similar character — Presentments Act 1916 (No. 2856), ss. 5, 8, 9 (3), 10, Second Schedule (r. 2) — Judge's report — Attitude of Full Court to — Shorthand note of summing up.

LANGMORE v. VINESVLR 595

HODGES, J., HOOD, J., and CUSSEN, J.·1 Aug 1917·Supreme Court of Victoria

Landlord and tenantOccupation of land in consideration of payment of rates — Nature of tenancy — Notice determining tenancy — Tenancy-at-will — Tenancy from year to year — Tenancy during municipal year — Adverse possession — Real Property Act 1915 (No. 2719), ss. 18, 23, 43.

THE KING v. THE REGISTRAR OF TITLESVLR 603

HOOD, J.·5 Oct 1917·Supreme Court of Victoria

Transfer of landEasement — Registration — Refusal of Registrar to register — Mandamus — Easement attached to one square link — Whether in gross — Abandonment of easement — Transfer of Land Act 1915 (No. 2740), s. 69, Schedule 5.

GRIEVE v. LEWISVLR 607

[Coram BARTON, A.C.J., ISAACS AND GAVAN DUFFY, JJ.]·18 Sept 1917·In the High Court of Australia

War PrecautionsInformation — Whether charge sufficiently stated — Dissuading a person from continuing to be engaged in the performance of an industrial operation connected with shipping — Proof of Regulations — Regulation produced in Court and dealt with as part of materials before the Court — Regulation not formally put in or marked as an exhibit — Whether regulation sufficiently proved — War Precautions Act 1914-16, ss. 3, 6 — War Precautions Regulations 1917, Reg. 40 C — Statutory Rules 1917 (Nos. 190 and 210) — Commonwealth Crimes Act 1914 (No. 12), s. 7 — Commonwealth Rules Publication Act 1903 (No. 18), s. 6.

IN THE WILL OF BENJAMINVLR 615

CUSSEN, J.·11 Oct 1917·Supreme Court of Victoria

WillConstruction — Vested interest — Payment at 25 — Forfeiture clause — Validity — Repugnancy — Gift over — Forfeiture on marrying person not of Jewish faith.

PERPETUAL EXECUTORS AND TRUSTEES ASSOCIATION OF AUSTRALIA LTD. v. ENGLANDVLR 620

A’BECKETT, J.·12 Mar 1915·Supreme Court of Victoria

IN THE WILL OF CHILDSVLR 621

[Coram BARTON, A.C.J., ISAACS AND POWERS, JJ.]·1 Oct 1917·In the High Court of Australia

WillCharity — Bequest for masses for repose of souls — Superstitious uses — Conflicting English and Irish decisions — Perpetuity — Imperial law — Statute of Edward VI., c. 14 — Application to Australia.

PEARCE v. JONESVLR 650

(Coram BARTON, A.C.J., ISAACS AND GAVAN DUFFY, JJ.)·24 Sept 1917·In the High Court of Australia

War precautionsStatement likely to prejudice recruiting — Resolution put to meeting to call upon Labour members to refuse to assist recruiting — Whether chairman in putting such resolution to the meeting is liable for making a statement likely to prejudice recruiting — Whether seconder of such motion is so liable — War Precautions Acts 1914-1916 — War Precautions Regulations 1915, reg. 28 — Statutory Rules 1915 (No. 130) and 1916 (No. 159) — Practice — Order to review — Conflicting affidavits.

THE KING v. DUNKINVLR 655

CUSSEN, J.·22 Oct 1917·Supreme Court of Victoria

InfantCustody — Child placed by father without assent of mother in Methodist Homes — Father absent on military service — Right of mother to custody of child — Neglected Children's Act 1915 (No. 2703), s. 67 — Marriage Act 1915 (No. 2691), s. 69.

ARNOLD v. THOMPSONVLR 658

HODGES, J., HOOD, J., and CUSSEN, J.·4 Oct 1917·Supreme Court of Victoria

Workers' compensationAssessment of compensation payable — "Fourth Schedule" injury — Lump sum instead of weekly payments — Basis of commutation — Memorandum of agreement — Refusal to register — Appeal out of time — Special Case stated treated as appeal — Workers' Compensation Act 1915 (No. 2750), ss. 5, 7, 8, Second Schedule, cl. 1 (b), Third Schedule, cl. 6 — Fourth Schedule.

ROCHE v. TYLERVLR 665

CUSSEN, J.·31 Oct 1917·Supreme Court of Victoria

Sale of goodsMerchandise marks — Trade description — Exposing for sale under false trade description — Meaning of "flannel" — Dictionary meaning — Meaning attributed by public — "False" meaning "untrue" — Goods Act 1915 (No. 2663), s. 87,

R. v. INGLISVLR 672

MADDEN, C.J., HOOD, J., and CUSSEN, J.·7 Nov 1917·Supreme Court of Victoria

Criminal lawPrisoner's plea of guilty — What it admits — Depositions in the Court below — Not disclosing proof of offence — Duty of presiding Judge.

R. v. JOHANSENVLR 677

HODGES, J., HOOD, J., and CUSSEN, J.·8 Nov 1917·Supreme Court of Victoria

Criminal lawSentence — Severity of — When the Full Court will interfere — Crimes Act 1915 (No. 2637), s. 594.

HIRSCH v. ZINC CORPORATION LTD.VLR 680

[Coram BARTON, A.C.J., ISAACS, HIGGINS, GAVAN DUFFY, AND POWERS, JJ.]·12 Oct 1917·In the High Court of Australia

ContractWar, effect of — Suspensory clause — Contract dissolved as to future performance — Claim for price of goods sold and delivered before war — Prices to be fixed by London quotations — London quotations ceasing to represent world's market — Whether right to recover price terminated or suspended — Buyers' option as to basis for fixing price — Arbitration clause — Implied terms in contract — Alien enemy — Liability to be sued — Intercourse with alien enemy — Australian agent of alien enemy — The King's proclamation of 9th September 1914 — Effect of as to intercourse — Enemy Contracts Act 1915 (No. 2603) — Commonwealth Enemy Contracts Annulment Act (No. 11 of 1915).

IN RE LOBBVLR 723

CUSSEN, J.·22 Oct 1917·Supreme Court of Victoria

PracticeOriginating summons — Order directing inquiries — Signature by Judge — Not to be passed and entered — Title to land — Who should draw up order — Conduct of inquiries given to defendants — Rules of the Supreme Court 1916 — Order LV., rr. 32, 74.

STEWART v. BECKWITHVLR 725

CUSSEN, J.·24 Oct 1917·Supreme Court of Victoria

HealthAdulterated food — Sale of — Milk — Contract for daily supply — Delivery under contract — Samples taken from separate cans containing day's supply — Separate analysis of samples — Prosecutions for several offences — Health Act 1915 (No. 2665), ss. 57, 86.

MEARES v. FEDERAL COMMISSIONER OF INCOME TAXVLR 728

BARTON, A.C.J.·5 Oct 1917·In the High Court of Australia

Income tax (Federal)Company — Dividend — Profit and loss — Undistributed profits accumulated — Amount carried forward to credit of profit and loss account — Profits accumulated in appropriation account — Whether taxable when distributed in dividend — Federal Income Tax Assessment Act 1915, s. 14 (b).

LINDSAY v. LOVELLVLR 734

HODGES, J., HOOD, J., and CUSSEN, J.·5 Nov 1917·Supreme Court of Victoria

Military lawCivil law — Action by soldier against military police — Jurisdiction of civil Courts — Military orders — Unreasonable, excessive, or malicious exercise of authority — Acts not in accordance with orders — Commonwealth Defence Act 1903-15, ss. 4, 30, 31, 55, 64, 113, 121, 124 — Regulations under the Defence Act, Nos. 21, 248, 281, 459, 460, 496, 497 — Imperial Army Act 1881, 44 & 45 Vict., c. 58, ss. 11, 43, 45, 74, 158, 170.

IN THE WILL OF DAVIDSONVLR 748

CUSSEN, J.·19 Nov 1917·Supreme Court of Victoria

WillDuty — Commonwealth estate duty — Apportionment amongst beneficiaries — Mode of apportionment — Life tenant and remainderman — Annuitant — Gift to infant subject to contingencies — Reduced rate of duty to widow, children, and grandchildren — Mode of final adjustment, where gift to privileged and non-privileged classes in succession — Whether reduced rate applies where privileged class not solely entitled — Commonwealth Estate Duty Assessment Act (No. 22 of 1914), ss. 8, 19, 34, 35, 36, 37 — Commonwealth Estate Duty Act (No. 25 of 1914), s. 3, Schedule.