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[1918] VLR(107 results)

Cases reported in this volume of the Victorian Reports

IN THE WILL OF MacGREGORVLR 1

Isaacs, J., and Gavan Duffy, J.·18 Oct 1917·In the High Court of Australia

Income tax (Federal)Will — Charity — Income of residue directed to be accumulated, subject to payment thereout of annuities — Accumulations of income and corpus on death of annuitants to form charitable fund — Income of fund to charities — Whether accumulated income liable to tax — Commonwealth Income Tax Assessment Act 1915-1916 (No. 34 of 1915, No. 39 of 1916), s. 11 (d) (f).

HENNESSY v. BAKERVLR 13

CUSSEN, J.·15 Oct 1917·Supreme Court of Victoria

MarketPlace appointed for market — Articles sold at place other than market — Effect of long user — Markets Act 1915 (No. 2690), s. 25.

BAILEY v. THE NEW SOUTH WALES MONT DE PIT DEPOSIT AND INVESTMENT CO. LTD.VLR 16

Madden, C.J., Hodges, J., and Hood, J.·26 Nov 1917·Supreme Court of Victoria

Money LenderReopening transaction — Excessive interest — Circumstances of borrower — Fair rate — Right of appellate Court to consider rate — Right to possession of security — Conversion — What constitutes — Money Lenders Act 1915 (No. 2701), s. 5.

BROKEN HILL ASSOCIATED SMELTING PTY. LTD. v. COLLECTOR OF IMPOSTSVLR 31

CUSSEN, J.·10 Dec 1917·Supreme Court of Victoria

Stamp dutyMarine insurance — Annual licence — Declaration under open policy — King's enemy risks — Insurance against — Additional premiums paid to Imperial Government — Victorian Stamp Duty on additional amount — Whether payable — "Person," meaning of — Crown not named in Statute — Statute applying to Crown — Stamps Act 1915 (No. 2728), ss. 33, 84, 94, 98 — 5 Geo. V., ch. xi. — Commonwealth Marine Insurance Act 1909 (No. 11 of 1909), ss. 5, First Schedule.

LONDRIGAN v. BAIRDVLR 40

MADDEN, C.J.·8 Nov 1917·Supreme Court of Victoria

JusticesAppeal to General Sessions — Second appeal — Competency of — Same subject-matter — Res judicata — Maintenance — Illegitimate child — Marriage Act 1915 (No. 2691), s. 93.

IN RE THE INCOME TAX ACT 1915VLR 44

Hood, J., Hodges, J., Cussen, J.·17 Dec 1917·Supreme Court of Victoria

Income TaxDeductions — Repairs — Land with improvements owned and used for purposes of residence or enjoyment — Deduction of sums expended for repairs during financial year on such property not allowable — Income Tax Act 1915 (No. 2,668), s. 11.

SMART v. WILLIAMSVLR 53

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

PoundsTrespass by "cattle" — Land not enclosed by a substantial fence — Jurisdiction of justices to award damages — Quantum only affected — Restoration of "cattle" — What constitutes — Justices Act 1915 (No. 2675), s. 64 (4) — Pounds Act 1915 (No. 2710), s. 12.

TUCKER v. HENNESSYVLR 56

Madden, C.J., Hood, J., Cussen, J.·26 Nov 1917·Supreme Court of Victoria

NegligenceNew trial — Appeal from County Court — Practice — Two previous trials — Power of Full Court to order third trial — Owner of horse and vehicle leaving same unattended in street — Mechanical appliance to control horse — Horse bolting — Injury to passenger in street — What constitutes negligence — County Court Act 1915 (No. 2636), s. 133.

OGDEN v. THE MELBOURNE ELECTRIC SUPPLY CO. LTD.VLR 77

Hood, J., Madden, C.J., Cussen, J.·26 Nov 1917·Supreme Court of Victoria

NegligenceMaster and servant — Duty of master at Common Law to provide and maintain safe plant — General duties of master — Delegation of supervision — Doctrine of common employment — When applicable — Practice — County Court — Application for new trial — Appeal from original judgment — County Court Act 1915 (No. 2636), ss. 96, 133.

HEALEY v. DOBLESVLR 103

HODGES, J.·20 Dec 1917·Supreme Court of Victoria

JusticesOrder to review — Power of justices to fine and inflict imprisonment in default — Police Offences Act 1915 (No. 2708), ss. 72, 195 — Justices Act 1915 (No. 2675), s. 71.

CRISFIELD v. IRELANDVLR 105

HODGES, J.·20 Dec 1917·Supreme Court of Victoria

JusticesEvidence — Uncontradicted evidence of defendant — Disbelief — Good reasons for — Power of justices to convict — Licensing Act 1915 (No. 2683), ss. 161, 237 — Licensing Act 1916 (No. 2855), s. 19 (b).

MILLER v. SLEEVLR 109

MADDEN, C.J.·28 Nov 1917·Supreme Court of Victoria

JusticesCourt of Petty Sessions — Jurisdiction — Offence of trifling nature — Dismissal of information though charge proved — Justices Act 1915 (No. 2675), ss. 64 (2), 72.

RE PALAIS CINEMA LIMITEDVLR 113

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

CompanyPractice — Winding up by the Court — Petition — Necessary allegations — Interest of petitioner — Amendment — Formal defect or irregularity — Companies Act 1915 (No. 2631), ss. 137, 138, 139 — Rules under the Companies Act 1915, rr. 17, 191, Appendix, Forms 4 and 5.

ROXBURGH v. CROSBY & CO.VLR 118

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

ContractPrincipal and agent — Implied term — Charter-party — Commission — Payable when hire "earned and paid" — Sale of vessel by owner to charterer — Cancellation of charter — Broker also negotiating sale — Right of broker to commission under charter-party — Contract evidenced by words, conduct, and writings — Right of Court to look at all the circumstances — Right to bring immediate action on repudiation of agreement to pay money due at a future date — Effect of "subsequent conduct" on construction of contract.

TAYLOR v. TAYLORVLR 143

HODGES, J.·21 Feb 1918·Supreme Court of Victoria

DivorceDesertion — Insanity of respondent subsequent to commencement of desertion — Marriage Act 1915 (No. 2691), s. 122 (a).

CURTIN v. FARRENVLR 144

HODGES, J.·1 Feb 1918·Supreme Court of Victoria

LicensingTraffic in liquor — Evidence of — Licensing Act 1915 (No. 2683), ss. 178, 240.

WARREN v. EYRESVLR 147

MADDEN, C.J.·28 Nov 1917·Supreme Court of Victoria

Crown landsEvidence — Proof that land is Crown land — Presumption — Stripping or removing bark from trees on Crown lands — Ring-barking — Land Act 1915 (No. 2676), s. 153.

HOWARD v. NASH BROTHERSVLR 154

MADDEN, C.J.·13 Feb 1918·Supreme Court of Victoria

Factories and ShopsGuards for dangerous machinery — Whether for protection of person using machine — Duty of occupier — "In consequence of" neglect to provide guards — Factories and Shops Act 1915 (No. 2650), ss. 59, 231.

R. v. CHIRGWINVLR 160

MADDEN, C.J.·27 Feb 1918·Supreme Court of Victoria

Criminal lawPractice — Deaf juror — Evidence not heard — Judge reading his notes to such juror — Juries Act 1915 (No. 2674), Part IX.

R. v. CADLEYVLR 162

MADDEN, C.J.·27 Feb 1918·Supreme Court of Victoria

Criminal lawPractice — Juror acquainted with prisoner — Conscientious objection to sit on jury — No power of Judge to discharge juror or jury — Juries Act 1915 (No. 2674), Part IX.

PETTETT v. THE COLLECTOR OF IMPOSTSVLR 163

CUSSEN, J.·27 Feb 1918·Supreme Court of Victoria

Stamps"Settlement or deed of gift" — Transfer of property to Benevolent Asylum — Subsequent re-transfer — Compromise of claims — Property re-transferred for less than actual value — Not a "deed of gift" — Bon fide adequate pecuniary consideration for interest re-transferred — Stamps Act 1915 (No. 2728), s. 77, Schedule IX. (1).

ROBERTSON v. ROBERTSONVLR 167

HODGES, J.·13 Mar 1918·Supreme Court of Victoria

DivorcePractice — Substituted service of petition and citation on co-respondent — Co-respondent on man-of-war whose situation is unknown — Divorce Rules 1916, r. 8.

COLCLOUGH v. FEDERAL COMMISIONER OF TAXATIONVLR 170

[Coram GRIFFITH, C.J., POWERS AND RICH, JJ.]·14 Mar 1918·In the High Court of Australia

Income tax (Federal)Proprietary company — Employs' shares — Shares allotted to employs in payment for services — Dividends from shares taxable as income from personal exertion — Commonwealth Income Tax Act 1916. No. 37 of 1916 — Commonwealth Income Tax Assessment Act 1915-1916, s. 3.

MELBOURNE ELECTRIC SUPPLY CO. LTD. v. OGDENVLR 176

[Coram BARTON, DUFFY, AND RICH, JJ.]·28 Feb 1918·In the High Court of Australia

NegligenceMaster and servant — Defective plant — Findings of jury — Meaning of findings — Evidence to support.

O’BRIEN v. MURPHYVLR 179

MADDEN, C.J.·6 Mar 1918·Supreme Court of Victoria

LicensingLodger — Carrying away liquor from licensed premises — Licensing Act 1915, (No. 2683), s. 190.

EVANS BROS. v. HASSETTVLR 183

MADDEN, C.J.·6 Mar 1918·Supreme Court of Victoria

JusticesInterpleader — Principal and agent — Property — Ownership — Agent purchasing as principal — Justices Act 1915 (No. 2675), s. 113.

GILBERT v. GULLIVERVLR 185

CUSSEN, J.·8 Mar 1918·Supreme Court of Victoria

Local governmentBy-law — "Allowing" cattle to graze on unfenced land — Master and servant — Liability of master for acts of servant — Knowledge of master — Extent of delegation of authority — Justice of the peace — Qualifications — Interest — Bias — Suspicion of bias.

IN THE WILL OF BICKERDIKEVLR 191

CUSSEN, J.·18 Mar 1918·Supreme Court of Victoria

WillAdministration — Set-off — Debt due by legatee — Right to bring action barred by Statute of Limitations — Presumption of destruction by testator animo cancellandi — Interest on promissory note, whether capable of being set off — Direction to hold legacy until legatee attains age of twenty-five years — Whether legatee entitled to payment on attaining majority — Supreme Court Act 1915 (No. 2733), s. 79 — Instruments Act 1915 (No. 2672), ss. 64, 71.

NEWLAND v. NEWLANDVLR 198

CUSSEN, J.·13 Mar 1918·Supreme Court of Victoria

DivorcePractice — Service of petition and citation — Respondent on active military service abroad — Order — Form of — Divorce Rulees 1916, r. 8.

TAYLOR v. REILLYVLR 201

CUSSEN, J.·18 Mar 1918·Supreme Court of Victoria

Husband and wifePrincipal and agent — Household necessaries ordered by wife — Contract by wife "otherwise than as agent" — Married Women's Property Act 1915 (No. 2692), s. 4 (3).

MORSE v. KLOOGERVLR 204

HODGES, J.·20 Feb 1918·Supreme Court of Victoria

JusticesOrder adjudging a person to enter into recognizance and to find sureties to keep the peace forthwith — Imprisonment in default of compliance with order — Jurisdiction — Justices Act 1915 (No. 2675), s. 101.

IN RE WARRENVLR 209

CUSSEN, J.·13 Mar 1918·Supreme Court of Victoria

Administration and probateAdministration — All assets believed to have been got in — Assets insufficient to pay creditors in full — Release by creditors — Subsequent discovery of fresh assets — Conflicting claims of creditors and next of kin — Effect of release — Statute of Limitations — Rights of creditors prejudiced by delay of administrator in disclosing discovery of fresh assets — Circumstances in which it would be inequitable to allow administrator to raise the statute or the analogous rule in Equity — Company — Dissolution — Bona vacantia — Rights of Crown — Companies Act 1915 (No. 2631), ss. 22 (2), 230 et seq. — Supreme Court Act 1915 (No. 2733), ss. 79 (1) (d), 85 (4).

WILLIAMS v. HAYNESVLR 219

HODGES, J., HOOD, J., CUSSEN, J.·5 Mar 1918·Supreme Court of Victoria

County CourtPractice — Costs — Payment into Court — No further sum recovered by plaintiff beyond that paid in — Costs payable to defendant — Discretion of Judge — Payment in by defendant of full amount claimed — Joinder of other claims — Issues other than as to the sufficiency of amount paid in — Jurisdiction — County Court Act 1915 (No. 2636), ss. 47, 62.

THE KING v. THE REGISTRAR OF TITLESVLR 228

[Coram GRIFFITH, C.J., GAVAN DUFFY AND RICH, JJ.]·21 Mar 1918·In the High Court of Australia

Transfer of LandAcquisition of land by Commonwealth — Interest acquired by notification in Gazette — Easements of light and air — Buildings to be erected in future — Registration of such easements — What constitutes an easement — Duty of registrar as to registration of easements as affecting servient tenements — Transfer of Land Act 1915 (No. 2740), ss. 4, 62, 68, 73, 238 — Commonwealth Lands Acquisition Act 1906, ss. 5, 13, 14, 15, 20.

BOHEMIANS’ CLUB v. FEDERAL COMMISSIONER OF TAXATIONVLR 234

[Coram GRIFFITH, C.J., BARTON, POWERS, AND RICH, JJ.]·21 Mar 1918·In the High Court of Australia

Income Tax (Federal)Social club — Members' subscriptions — Not taxable as income — Commonwealth Income Tax Assessment Act 1915-1916, No. 34 of 1915, ss. 3, 14.

MEARES v. THE FEDERAL COMMISSIONER OF TAXATIONVLR 238

[Coram GRIFFITH, C.J., GAVAN DUFFY, POWERS, AND RICH, JJ.]·21 Mar 1918·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 before 1st July 1914 credited to appropriation account — Whether taxable when distributed as dividend — "Profit and loss" account defined — Commonwealth Income Tax Assessment Act 1915-1916, No. 34 of 1915, s. 14 (b); No. 47 of 1915, s. 3 (c).

IN RE HORSFALL’S SETTLEMENTSVLR 242

[Coram BARTON, GAVAN DUFFY, AND RICH, JJ.]·20 Mar 1918·In the High Court of Australia

Administration and probateSettlement — Duty — Gift to persons in being with limitations to persons who may not be in being at the death of the 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 — Contract under seal — Contract not under seal — Settlor domiciled and resident in Victoria — Purchaser domiciled and resident in New South Wales — Interests in reversion and remainder — Choses in action — Locality of debt — Whether debt is Victorian asset — Bona notabilia — Administration and Probate Act 1915 (No. 2611), s. 143.

GOMM v. HALEYVLR 252

CUSSEN, J.·13 Mar 1918·Supreme Court of Victoria

Order to reviewPractice — Dispute as to what occurred in Court of Petty Sessions — Views of justices — Affidavits in reply — Sending copies for perusal by justices — Justices Act 1915 (No. 2,675), s. 150.

IN THE WILL OF HALFEYVLR 254

HODGES, J., HOOD, J., CUSSEN, J.·8 Apr 1918·Supreme Court of Victoria

Administration and probateLetters of administration cum testamento annexo — Sealing English letters of administration — Power of attorney — Verification and authentication — Declaration made before a provincial mayor in England — Sufficiency of such declaration — Practice — Administration and Probate Act 1915 (No. 2611), s. 51.

IN RE BALDERSONVLR 257

IRVINE, C.J.·11 Apr 1918·Supreme Court of Victoria

Administration and probatePractice — Letters of administration granted by High Court of Justice in England — Production for sealing with seal of Supreme Court — Power of attorney — Authentication — Attestation of execution by commissioner of Supreme Court for taking affidavits — Verification of commissioner's signature, whether necessary — Administration and Probate Act 1915 (No. 2611), Part III. — Evidence Act 1915 (No. 2647), s. 119.

IN RE HILLVLR 259

HODGES, HOOD, and CUSSEN, JJ.·9 Apr 1918·Supreme Court of Victoria

Barrister and solicitorArticles of clerkship — Satisfactory evidence of having passed necessary examinations — Matriculating after instead of before passing examinations — Nunc pro tunc order — Consolidated Rules of Council of Legal Education (1915), rr. 7, 19, 40 — Regulations of the University of Melbourne — "Matriculate."*

R. v. WEAKLEYVLR 263

HODGES, J.·25 Apr 1918·Supreme Court of Victoria

Criminal lawProcedure — Carnally knowing a girl under the age of sixteen — Commencement of prosecution — Information — Offences disclosed more than twelve months old — Offences alleged after the girl had attained sixteen — Crimes Act 1915 (No. 2637), ss. 44, 47.

ATKINSON v. NEWMARCHVLR 265

IRVINE, C.J.·15 May 1918·Supreme Court of Victoria

Imprisonment of fraudulent debtorsEvidence — Fraudulent debtor — False pretence — Pretence denied — System — Identical representations to other persons — Admissibility of evidence — Imprisonment of Fraudulent Debtors Act 1915 (No. 2667), ss. 4 and 5.

SVANOSIO v. SVANOSIOVLR 267

IRVINE, C.J.·1 May 1918·Supreme Court of Victoria

Husband and wifeMaintenance — Marriage within prohibited degrees — Voidable, not void — Jurisdiction of justices to refuse to make an order — Discretion of justices — Imperial Act, 5 & 6 Will. IV., c. 54 (1835) — Marriage Act 1915 (No. 2691), ss. 83 and 87.

DORMAN v. GOODVLR 269

IRVINE, C.J.·1 May 1918·Supreme Court of Victoria

PracticePleading — Action for slander — Plea that the words (without the alleged innuendo) are true in their natural signification — Particulars admissible — Rules of the Supreme Court — Order XIX., r. 27.

IN RE TUCKERVLR 272

IRVINE, C.J.·2 May 1918·Supreme Court of Victoria

TrustsOverpayment — Recoup to trustee — Property claimed by trustee treated by him as part of trust estate — Belief of trustee in inability to establish title — Payment of rents and profits to beneficiaries — Title of trustee established by subsequent discovery of will — Whether trustee entitled to be recouped.

IN RE SHACKELFORDVLR 279

HOOD, J.·13 May 1918·Supreme Court of Victoria

WillInterpretation — Omission — Subject-matter of gift not specified — Intention of testator.

RIDER v. HENDYVLR 280

IRVINE, C.J.·9 May 1918·Supreme Court of Victoria

HealthOffensive trade — "Marine stores" — Definition of — Supervision of City Council — Health Act 1915 (No. 2665), s. 286.

THE KING v. WALLACEVLR 285

MADDEN, C.J., HODGES, J., HOOD, J., CUSSEN, J.·17 Dec 1917·Supreme Court of Victoria

Imprisonment of fraudulent debtorsCounty Court — Order for commitment — Imprisonment — Whether in custody "in execution on any judgment decree or order for any debt or demand provable in insolvency" — Whether imprisoned as means of enforcing execution or for independent fraud — Voluntary sequestration of debtor's estate for benefit of his creditors — Application under Insolvency Act for discharge from custody — Application made ex parte — Jurisdiction of Judge of Court of Insolvency — Practice — Prohibition — Certiorari — Procedendo — Wrongful discharge — Imprisonment of Fraudulent Debtors Act 1915 (No. 2667), Part II., ss. 15, 16 — Insolvency Act 1915 (No. 2671), s. 175.

IN THE WILL OF KNIGHTVLR 343

HOOD, J.·30 May 1918·Supreme Court of Victoria

Real propertyMortgage debt — Mortgaged property primarily liable — Locke King's Act — "Contrary or other intention" — Will — Direction to pay debts out of personalty — Power to mortgage real estate for such payment if personalty insufficient — Real Property Act 1915 (No. 2719), ss. 91, 92.

IN THE WILL OF CAMERONVLR 346

HODGES, J., HOOD, J., CUSSEN, J.·8 Apr 1918·Supreme Court of Victoria

Administration and probatePractice — Executors and trustees — Administrators — Application to pass accounts and for commission — Application for commission only — Costs — When payable out of estate — Administration and Probate Act 1915 (No. 2611), s. 34 — Supreme Court Act 1915 (No. 2733), s. 18.

BROKEN HILL ASSOCIATED SMELTING PTY. LTD. v. COLLECTOR OF IMPOSTSVLR 350

[Coram ISAACS, GAVAN DUFFY, AND RICH, JJ.]·22 May 1918·In the High Court of Australia

StampsDuty — Marine insurance — Annual licence — Declaration under open policy — King's enemy risks — Insurance against — Additional premiums paid to Imperial Government — Victorian stamp duty on additional amount — Whether payable — "Person," meaning of — Crown not named in Statute — Whether Crown included — Stamps Act 1915 (No. 2728), ss. 33, 84, 94, 98.

FOWLER v. DAVIDSONVLR 356

HODGES, J., HOOD, J., CUSSEN, J.·6 June 1918·Supreme Court of Victoria

Police offences"Unlawful game" — Poker — Game of chance — Cards — Whether instrument of gaming — Licensing Act 1915 (No. 2683), s. 204 — Police Offences Act 1915 (No. 2708) ss. 30, 72 (7), 88 — Imperial Act 33 Hen. VIII., c. 9 — Whether in force in Victoria.

SUDHOLZ v. WITHERS PROPRIETARY LIMITEDVLR 375

IRVINE, C.J., CUSSEN, J., HODGES, J.·6 June 1918·Supreme Court of Victoria

NegligenceParties — County Court — Joint liability of two defendants — Separate acts of negligence — Joinder of causes of action — Damages — No discrimination between defendants — County Court Rules of 1891, r. 98.

NICHOLSON v. ROBERTSONVLR 384

HOOD, J.·22 May 1918·Supreme Court of Victoria

LicensingSale of non-intoxicating liquors between 6 p.m. and 11.30 p.m. — Failure to keep doors unlocked — Licensing Act 1916 (No. 2855), s. 24.

DUNCAN v. SNOWDROP ICE CREAM COMPANYVLR 387

HOOD, J.·22 May 1918·Supreme Court of Victoria

Factories and shopsWages Board determination — Interpretation of — "Packer" — Meaning of — Ordinary meaning — Technical trade meaning in particular case — Evidence — Onus of proof — Factories and Shops Act 1915 (No. 2650), ss. 141, 222 (i), 226.

R. v. CANANVLR 390

CUSSEN, J.·16 May 1918·Supreme Court of Victoria

Criminal lawPractice on trial — Prisoners jointly charged and tried — One the only witness in his own defence — The other calling other evidence — Extent of cross-examination — Counsel's addresses — Right of reply — Order of addresses — Crimes Act 1915 (No. 2637), ss. 432, 448, 449 — Crimes Act 1915 (No. 2), (No. 2789), s. 2.

R. v. MOOREVLR 395

IRVINE, C.J.·20 June 1918·Supreme Court of Victoria

Criminal lawSpecial jury — Application for — Two previous disagreements not a ground for — Direct conflict of testimony on a simple issue — Special grounds to be shown — Juries Act 1915 (No. 2674), s. 41 — Juries Act (No. 2) 1915 (No. 2777), ss. 3, 5.

IN THE WILL OF COMSTOCKVLR 398

IRVINE, C.J.·29 Apr 1918·Supreme Court of Victoria

WillGift to widow and executrix — "Full free and uncontrolled use during her life" — Power to dispose of property and to apply proceeds at discretion — Gift of property after death of widow — "If undisposed of at the death of" widow — "Which shall remain" at death of widow — Gift of corpus to charities and others — Nature of widow's estate — Life estate, with power to dispose of corpus.

IN THE WILL AND CODICIL OF CALLOWVLR 406

CUSSEN, J.·20 June 1918·Supreme Court of Victoria

Administration and probateGrant of probate — Attestation in presence of testatrix — Witnesses signing in another room — No evidence that testatrix saw witnesses signing — Wills Act 1915 (No. 2749), s. 7.

MURRAY v. KERRVLR 409

IRVINE, C.J.·11 July 1918·Supreme Court of Victoria

WrongsSeduction — Proof in action by parent or person in loco parentis — Fact of seduction not alone sufficient — Physical incapacity arising from seduction — Wrongs Act 1915 (No. 2751), s. 13.

BUGGE v. BROWNVLR 413

IRVINE, C.J.·18 July 1918·Supreme Court of Victoria

NegligenceFire — Master and servant — Fire spreading to adjoining land — Damage — Liability of master — Scope of employment.

R. v. WARDVLR 418

HODGES, J., HOOD, J., CUSSEN, J.·6 June 1918·Supreme Court of Victoria

Criminal law"Indictable offence" — Meaning of in sec. 514 of the Crimes Act 1915 — Previous convictions for indictable offences before Courts of Petty Sessions — Declaration that prisoner is an "habitual criminal" — Jurisdiction — Direction under s. 515 that prisoner be detained in reformatory prison — Crimes Act 1915 (No. 2637), ss. 72, 75, 514, 515, 593 — Justices Act 1915 (No. 2675), s. 100.

FOWLER v. PITCHERVLR 424

HOOD, J.·22 July 1918·Supreme Court of Victoria

Police offencesRogue and vagabond — Gaming — Public place — Meaning of — Licensed billiard-room after closing hours — Police Offences Act 1915 (No. 2708), ss. 27, 72 (7) (a).

IN RE DUFFVLR 426

CUSSEN, J.·26 June 1918·Supreme Court of Victoria

LunacyInquisition or finding in United Kingdom or British colony — Filing copy in Supreme Court — Appointment of committee — Costs — Jurisdiction — Lunacy Act 1915 (No. 2687), s. 130.

IN THE WILL OF SICHLAUVLR 431

CUSSEN, J.·2 Aug 1918·Supreme Court of Victoria

TrustsWill — Company — Shares in limited company held by testator — Direction to retain — Reconstruction of company after testator's death — Shares in new company received by trustee — Right to retain — Duty to sell — New company substantially different from old company — Old shares specifically given in succession — No power to convert — Bonus shares — Life tenant and remainderman — Shares in old company purchased by trustee under investment clause — New shares on reconstruction — Bonus shares added — Unauthorized investment in new shares — Right to retain any of such shares — Adjustment.

BOWES v. GREGORYVLR 445

IRVINE, C.J.·23 July 1918·Supreme Court of Victoria

County CourtRemitting action from Supreme Court — Jurisdiction — Unliquidated damages — Practice — County Court Act 1915 (No. 2636), s. 50.

IN RE HALLVLR 448

HOOD, J.·22 July 1918·Supreme Court of Victoria

WillConstruction — "All my belongings remaining" — Meaning of — Realty included — Intestacy — Presumption against.

IN RE GIPPSLAND AND NORTHERN CO-OPERATIVE SELLING AND INSURANCE CO. LTD.VLR 451

HODGES, J., HOOD, J., CUSSEN, J.·16 Aug 1918·Supreme Court of Victoria

CompanyMemorandum of Association — Alteration of objects — What are "objects" — Enlarging class of permitted shareholders — Jurisdiction to confirm — Companies Act 1915 (No. 2631), s. 17.

IN THE WILL AND CODICILS OF McLEODVLR 456

HOOD, J.·19 July 1918·Supreme Court of Victoria

Administration and probateExecutor and trustee — Passing accounts — Commission — Order for passing accounts and obtaining commission in the future — Form of order — Costs — Administration and Probate Act 1915 (No. 2611), s. 34.

IN RE TUCKERVLR 460

HODGES, J., CUSSEN, J., HOOD, J.·1 Aug 1918·Supreme Court of Victoria

TrustsRecoup to trustee — Two executors and trustees — Property treated as part of testator's estate — Rents and profits distributed amongst beneficiaries — Claim by one trustee to property in his own right — Discovery of will giving title — Estate moneys available for distribution — Right of such trustee to recoup of rents and profits distributed — Such trustee a beneficiary — Position of trustee who treats his own property as part of trust estate — Independent proceedings to establish claim to property and rents and profits.

MATTER OF ARBITRATION BETWEEN BLAND BROS. AND COUNCIL OF BOROUGH OF INGLEWOODVLR 467

HOOD, J., HODGES, J., CUSSEN, J.·6 June 1918·Supreme Court of Victoria

ArbitrationAward — Jurisdiction — Injury to land — Flooding — Overflow of water channel — Statutory remedy — Acts — Omissions — Water Act 1915 (No. 2747), ss. 253, 259, 260, 263, 264, 265 — Water Act 1916 (No. 2852), s. 6 — Arbitration Act 1915 (No. 2614), ss. 12, 19.

BRETT v. SMITHVLR 476

HODGES, J., HOOD, J., CUSSEN, J.·13 Aug 1918·Supreme Court of Victoria

Income tax (Federal)Mortgage — Option to mortgagor to pay income tax and interest at reduced rate — Whether a stipulation to pay tax — Federal Income Tax Assessment Act 1915 (No. 34), s. 54.

ARTHUR v. WESTCOTTVLR 482

HODGES, J.·9 Sept 1918·Supreme Court of Victoria

County CourtEquitable jurisdiction — Claim relating to amount exceeding 500l. — "Amount or value" — Determination as to value — Right of appeal — Transfer of cause to Supreme Court — Order made during progress of suit before question of jurisdiction raised — Validity of — County Court Act 1915 (No. 2636), ss. 121, 130, 133.

CREIGHTON v. CREIGHTONVLR 487

HOOD, J.·13 Sept 1918·Supreme Court of Victoria

DivorceInfant — Custody pendente lite — Wife's costs — Marriage Act 1915 (No. 2691), ss. 150 (2), 159.

KEMP v. BARBERVLR 489

[Coram BARTON, GAVAN DUFFY, AND RICH, JJ.]·16 Sept 1918·In the High Court of Australia

Local governmentBy-law — "Footway" — Definition of — Used by pedestrians — Park not included — By-law of city of Melbourne, No. 134.

POWELL v. STAMPVLR 492

HOOD, J.·29 Aug 1918·Supreme Court of Victoria

ContractBreach of — Combination of party to contract and third person to commit breach — Cause of action — Liability of third person — Voluntary act of party committing breach — Breach not induced or procured by third party — Pleading.

HAMMERLI v. HAMMERLIVLR 497

HOOD, J.·20 Aug 1918·Supreme Court of Victoria

DivorcePractice — Costs of wife — Sum not exceeding twenty pounds fixed by Taxing Master — Order for payment into Court — Inability of husband to pay — Stay of proceedings — Security — Marriage Act 1915 (No. 2691), s. 159.

KOLLNER v. KOLLNERVLR 500

HOOD, J.·27 Aug 1918·Supreme Court of Victoria

DivorceDesertion — Constructive desertion — Conduct compelling wife to leave husband — Marriage Act 1915 (No. 2691), s. 122 (a).

BIGGS v. WALLACEVLR 502

HOOD, J.·23 Aug 1918·Supreme Court of Victoria

AttachmentContempt — Failure to obey order to pay costs — Prior sequestration of estate in insolvency, effect of — Conviction by justices — Order to review conviction — Whether a continuation of proceedings before justices — "Process against the person" — Debt provable in insolvency — Insolvency Act 1915 (No. 2671), ss. 173, 174, 175.

R. v. FARLEYVLR 505

IRVINE, C.J.·11 Sept 1918·Supreme Court of Victoria

Criminal lawLarceny — Servant obtaining property on terms requiring him to account for it to his employer — Transaction resulting in mere duty to pay price — Crimes Act 1915 (No. 2637), s. 142.

FAULKNER v. WISCHER AND CO. PTY. LTD.VLR 513

IRVINE, C.J., HODGES, J., HOOD, J.·9 Sept 1918·Supreme Court of Victoria

NegligenceDangerous article — Duty to third parties when article sent forth — Not dependent upon contract or continued control — Sufficiency of warning — Knowledge of defect causing actual danger — Damages.

SYME & CO. v. CANAVANVLR 540

IRVINE, C.J. (dissenting), read the following judgment·13 Sept 1918·In the High Court of Australia

DefamationLibel — Defamation of a class — Member of ill-defined body — Member of a league suing for a libel on the league — Question whether words complained of refer to plaintiff — Findings of jury — Functions of jury — Test of whether words not naming plaintiff refer to him.

IN RE TULLEYVLR 556

HOOD, J.·17 Sept 1918·Supreme Court of Victoria

WillVerbal trust for "use and benefit" of invalid daughter — Life estate — Interpretation of verbal trust.

NEWMARCH v. ATKINSONVLR 558

[Coram BARTON, ISAACS AND RICH, JJ.]·26 Sept 1918·In the High Court of Australia

Imprisonment of fraudulent debtorsSupreme Court — Order for commitment — Jurisdiction — Punishment of dishonest conduct — Coercion of debtor's body — Principle upon which order made — Imprisonment of Fraudulent Debtors Act 1915 (No. 2667), Part I., ss. 3-13.

STONE v. FEDERAL COMMISSIONER OF TAXATIONVLR 567

ISAACS, J.·18 Oct 1918·In the High Court of Australia

Income tax (Federal)Appeal against assessment — Burden of proof — Assumption that Commissioner has made assessment after careful consideration — Income Tax Assessment Act (Federal) 1915-1918, s. 32.

EQUITY TRUSTEES EXECUTORS AND AGENCY CO. LTD. v. HASKEWVLR 571

CUSSEN, J.·11 Oct 1918·Supreme Court of Victoria

GiftUndue influence — Transfer of property by father to daughter — Action for retransfer.

IN RE MAHONEYVLR 580

HOOD, J.·3 Oct 1918·Supreme Court of Victoria

WillPower of appointment — Appointment upon condition — Benefit to appointor — Quantum not defined — Validity of appointment.

COOPER & SONS v. NEILSON AND MAXWELL LTD.VLR 583

IRVINE, C.J.·18 Oct 1918·Supreme Court of Victoria

ContractPerformance — Impossibility — Implied terms — Discharge — State of war arising — Probability that goods are to be obtained in enemy country — Possibility of obtaining goods, elsewhere.

REID v. BORCHARDTVLR 592

HOOD, J.·16 Oct 1918·Supreme Court of Victoria

JusticesCourt of Petty Sessions — Parties — Misjoinder of complainant — Power of amendment by justices — Amendment on hearing of order to review — Justices Act 1915 (No. 2675), s. 96.

IN RE GRAHAMVLR 595

IRVINE, C.J.·10 Oct 1918·Supreme Court of Victoria

Administration and probateDuty — Settlement — General power of appointment — Loan by trustee of settlement on mortgage of land in New South Wales — Trustee and mortgagor domiciled in Victoria — Covenant in deed of extension — Deed in Victoria at death of appointor — Covenant to pay in Melbourne — Covenant "so as to bind lands now mortgaged but not so as to incur any liability otherwise" — Effect — Right of executor of appointor to call for payment in Victoria — Victorian property — Costs of Case stated — Jurisdiction — Administration and Probate Act 1915 (No. 2611), ss. 124, 145.

IN RE OFFICER’S TRANSFERVLR 607

IRVINE, C.J., HOOD, J., CUSSEN, J.·10 Oct 1918·Supreme Court of Victoria

StampsDuty — Deed of gift — Sale — Stamps Act 1915 (No. 2728), s. 17, Schedule 3 (IX.)

FAIRBAIRN v. MILLERVLR 615

CUSSEN, J.·11 Oct 1918·Supreme Court of Victoria

BailmentRemoval of furniture — Destruction by fire — Onus of proof — Duty to negative want of care — Whether furniture removers are common carriers — Pleading — Allegation of duty to carry "safely" and of failure to deliver — Sufficiency.

REX v. COOKVLR 618

IRVINE, C.J., HODGES, J., HOOD, J.·4 Oct 1918·Supreme Court of Victoria

Criminal lawEvidence — "Part of conversation," what is — Supplementary statement on subsequent day — Limitation by Crown of issues of fact — Evidence as to other issues — Improper rejection of evidence, effect of — Mode of conducting trial — No substantial miscarriage of justice — Crimes Act 1915 (No. 2637), s. 594 (1).

MATEAR v. LYNEVLR 629

HODGES, J.·1 Nov 1918·Supreme Court of Victoria

Vendor and purchaserContract — Sale of land — Transfer completed — Mistake — Rectification — Specific performance.

BURNSIDE v. MELBOURNE FIRE OFFICE LIMITEDVLR 637

HOOD, J.·25 Oct 1918·Supreme Court of Victoria

PracticeAmendment — Trial by jury — Memorandum of close of pleadings — Error as to mode of trial — Power to correct — Rules of Supreme Court 1916 — Order XXVIII., r. 12; Order LXX., r. 1.

BURNSIDE v. MELBOURNE FIRE OFFICE LIMITEDVLR 639

HOOD, J.·15 Nov 1918·Supreme Court of Victoria

EvidencePractice — Commission — Witness resident in another State — Personal credibility not involved — Evidence Act 1915 (No. 2674), s. 4 — Service and Execution of Process Act 1901-1912 (No. 11 of 1901, No. 18 of 1912), s. 16.

McKINNA v. CONNELLYVLR 641

HOOD, J.·24 Oct 1918·Supreme Court of Victoria

Police offences"Public place" — Mustering-room of Stevedoring Co. — Building in private occupation — User by general public — No right to enter — Police Offences Act 1915 (No. 2708), ss. 25, 27.

IN RE KEATINGVLR 645

HOOD, J.·29 Oct 1918·Supreme Court of Victoria

WillClass gift — Direction to divide residue equally between named persons and children of another named person — Evidence to show relationship to testator — Admissibility.

IN RE DYMKEVLR 649

HOOD, J.·29 Oct 1918·Supreme Court of Victoria

WillLegacies — Debts — Funeral and testamentary expenses — Charge — Direction to pay out of real estate specifically devised in proportion to acreage — Part of real estate transferred by testator after date of will — Whether legacies payable out of personal estate either wholly or beyond proportion payable out of untransferred real estate — Whether debts, etc., payable out of personal estate only — Probate duty — Whether payable out of residuary estate — Federal estate duty — How payable — Whether covered by "probate duty" — "Testamentary expenses" — Administration and Probate Act 1915 (No. 2611), s. 133 — Federal Estate Duty Assessment Act 1914-1916; No. 22 of 1914, s. 35.

MORTON v. ARBUCKLEVLR 657

IRVINE, C.J.·15 Nov 1918·Supreme Court of Victoria

DefamationLibel — Pleading — Fact and comment — Particulars of — General Assembly of Presbyterian Church — Matter of public interest — Application to strike out pleading as embarrassing or for particulars — Rules of the Supreme Court 1916 — Order XIX., r. 27.

RE IRWIN AND TAYLOR’S CONTRACTVLR 661

HOOD, J.·13 Nov 1918·Supreme Court of Victoria

Vendor and purchaserSale of land — Statement of acreage — "Or thereabouts" — Whether representation or mere estimate — Reference to plan showing boundaries — Compensation — Deficiency in area of very small value — Transfer of Land Act 1915 (No. 2740), Schedule 25, Table A.

IN RE McPHERSONVLR 666

HOOD, J.·27 Sept 1918·Supreme Court of Victoria

InsolvencyContempt of Court — Attachment for non-payment of damages in divorce — Court of Insolvency — Power to discharge prisoner attached by Supreme Court — Refusal to exercise jurisdiction — Discretion of Supreme Court — Insolvency Act 1915 (No. 2671), s. 175.

YULE BROTHERS v. SIMSVLR 670

CUSSEN, J.·31 Oct 1918·Supreme Court of Victoria

Sale of goodsAgreement to buy — Possession obtained with consent of seller — Sale and delivery by person so in possession to another receiving in good faith and without notice of lien or other right in original seller — Conditional agreement — Condition subsequent — Right to return goods — Ability to pay purchase money — Damages — Measure of — Goods Act 1915 (No. 2663), ss. 31, 65.

SHARPE v. BROWNVLR 678

HOOD, J.·13 Nov 1918·Supreme Court of Victoria

Friendly societyDecision of domestic tribunal — Jurisdiction of Court to review — Dispute between society and lodge — Provision in rules of society for settling dispute — Suspension of lodge — Expulsion automatically following upon suspension for two years — Audi alteram partem — No notice of meeting at which penalty inflicted — Full previous opportunity for stating defence — Friendly Societies Act 1915 (No. 2656), s. 21.

BALLARAT TRUSTEES EXECUTORS AND AGENCY CO. LTD. v. THE KINGVLR 687

CUSSEN, J., IRVINE, C.J., HOOD, J.·14 Nov 1918·Supreme Court of Victoria

Administration and probateDuty — Transfer of land by aged father to sons — Land subject to mortgage — Contract purporting to be sale — Agreement by sons to pay mortgage, sum of money, and annuity to transferor — Undervalue — Knowledge of — Annuity not made payable out of property transferred — Onus of proof — "Purporting to operate as an immediate gift inter vivos" — Meaning of — Duty on whole value of property transferred — Administration and Probate Act 1915 (No. 2611), s. 143.

POSTSCRIPTVLR 701

IN the case of Faulkner v. Wischer and Co. Pty. Ltd. and Rosenhain & Co., which is reported, on appeal to the Full Court, [1918] V.L.R., p. 513, the written judgment of the learned trial Judge was as follows:—·1 Jan 1918·Supreme Court of Victoria