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[1924] VLR(92 results)

Cases reported in this volume of the Victorian Reports

GUM v. STEVENSVLR 1

[Coram KNOX, C.J., ISAACS AND STARKE, JJ.]·31 Oct 1923·In the High Court of Australia

PatentOpposition — Grounds of opposition — "The invention is not novel" — Scope of objection — Want of inventiveness, whether included — Commonwealth Patents Act 1903-1921, s. 56 (e).

BASTARD v. McCALLUMVLR 9

(SCHUTT and McARTHUR, JJ., and WEIGALL, A.-J.)·4 Oct 1923·Supreme Court of Victoria

ContractSale of goods — Written orders for goods — Letters of acceptance containing additional term for sellers' benefit — Whether counter offers — Waiver by sellers of term not in writing — Whether permissible — Severability — Subsequent conduct of buyer — Whether concluded contract — Letter signed by buyer "for and on behalf of" a limited company — Whether signature of individual — Goods Act 1915 (No. 2663), s. 9.

CROWDER v. CROWDERVLR 28

SCHUTT, MANN and McARTHUR, JJ.·14 Dec 1923·Supreme Court of Victoria

DivorceDecree nisi — Intervention by Attorney-General — Decree absolute unless Attorney-General intervenes within three months — Leave to intervene obtained within three months — Appearance not entered till expiration of period prescribed — Appearance set aside — Right of Attorney-General to intervene — Observations on — Marriage Act 1915 (No. 2691), ss. 136 (3) (a) and 140; Marriage Act 1923 (No. 3282), s. 11 (2).

GOLDMAN v. THE CHIEF INSPECTOR OF FACTORIESVLR 33

SCHUTT, J., MANN, J., and McARTHUR, J.·4 Dec 1923·Supreme Court of Victoria

Factories and shopsWages boards — Power to appoint — Appointment by Minister of Labour — Validity of appointment — Boards to be appointed by Governor-in-Council — Factories and Shops Act 1915 (No. 2650), ss. 133 (1) and (2); 136 (5) and (6); 138-140 — Factories and Shops Act 1919 (No. 3048), s. 2 — Factories and Shops Act 1920 (No. 3093), s. 2 — Factories and Shops Act 1922 (No. 3252), ss. 14, 15.

IN RE DE GARISVLR 38

McARTHUR, J.·29 Nov 1923·Supreme Court of Victoria

Landlord and tenantLease — Covenant to rebuild if premises destroyed by fire — Impossibility of performance — By-law applying to area within which premises situated — Buildings constructed substantially of wood — By-law prohibiting construction of buildings in material other than brick, stone, concrete, etc. — "Rebuild," meaning of — Whether covenant to rebuild rendered impossible of performance by change in law — Lessees' breach of covenant — Effect on right to enforce lessor's covenant — Local Government Act 1915 (No. 2656), s. 198.

R. v. GILDAYVLR 42

(SCHUTT, MANN and McARTHUR, JJ.)·14 Dec 1923·Supreme Court of Victoria

Criminal lawTrial — Procedure — Imputation on character of witness for prosecution — Admission of accused's prior convictions — Evidence of accused's good character — Direction to jury — Purpose of admitting evidence of prior convictions — Crimes Act 1915 (No. 2) (No. 2789), sec. 2.

INNES v. LINCOLN MOTOR CO. INC.VLR 46

[Coram HIGGINS, GAVAN DUFFY, AND STARKE, JJ.]·8 Nov 1923·In the High Court of Australia

Trade marksRegistration — Disclaimer — Design containing word "Lincoln" as most prominent part — Secondary or distinctive use of word "Lincoln" in relation to goods of particular manufacture not proved — Whether disclaimer upon registration necessary — Discretion as to directing disclaimer — Right of original and independent discretion in Supreme Court — Attitude of High Court in appellate jurisdiction where statutory discretion in Supreme Court as Court of first instance has been exercised — Evidence — Development of applicant's business since application for registration — Whether proof admissible — Trade Marks Act 1905-1912 (No. 20 of 1905, No. 19 of 1912), ss. 16 (1) (e), 24 (1).

IN RE AN ARBITRATION BETWEEN THE PRESIDENT, ETC., OF THE SHIRE OF WODONGA AND CARRVLR 56

SCHUTT, J.·3 Dec 1923·Supreme Court of Victoria

ArbitrationStatement of case by arbitrators — "Question of law arising in the course of the reference" — Arbitrators asked to state case before giving award — Refusal of arbitrators — Jurisdiction of Court to direct arbitrators to state case on question of law — Exercise of Court's discretion — Questions arising incidentally during the reference — Questions in dispute before the reference — Qualification of arbitrators — Form of questions to be asked in special case settled — Arbitration Act 1915 (No. 2614), s. 19.

IN RE HAIREVLR 65

WEIGALL, A.-J.·20 Dec 1923·Supreme Court of Victoria

Administration and probateRevocation of probate — Existing grant — Living executor — Right of Curator of Estates of Deceased Persons to apply for revocation and administration pendente lite — Administration and Probate Act 1915, ss. 65, 68, 69; Imperial Acts Application Act 1922 (No. 3270), ss. 18, 20.

COOK v. COOKVLR 69

[Coram KNOX, C.J., ISAACS, HIGGINS, RICH AND STARKE, JJ.]·7 Dec 1923·In the High Court of Australia

Husband and wifeMaintenance order — Proceedings for non-compliance — Subsequent adultery of wife — No defence to proceedings — Disobedience of order a continuing offence — Time limit for "offence" — Right of appeal to General Sessions — Nature of — Statute — Interpretation — "May" — When obligatory — Marriage Act 1915 (No. 2691), ss. 91, 93 — Marriage (Maintenance) Act 1919 (No. 3010), s. 4 — Justices Act 1915 (No. 2675), s. 210.

IN RE WALKER’SVLR 85

McARTHUR, J.·14 Dec 1923·Supreme Court of Victoria

Landlord and tenantLease prior to enactment of Federal Land Tax Assessment Act 1910 — Covenant by lessee to pay all taxes "save and except any landlord's property tax" — Lessee not liable for Federal or State land lax — Federal Land Tax Assessment Act 1910-1923 (No. 22 of 1910, No. 29 of 1923), s. 10.

GOLDMAN v. THE CHIEF INSPECTOR OF FACTORIESVLR 92

WEIGALL, A.-J.·24 Jan 1924·Supreme Court of Victoria

Factories and shopsWages boards — Chairman — Appointment — Re-appointment of previous chairman — Validity of re-appointment — Factories and Shops Act 1915 (No. 2650), ss. 136 (6) (c), 140: Factories and Shops Act 1922 (No. 3252), ss. 14, 17.

THE KING v. HAYVLR 97

MANN, J.·14 Mar 1924·Supreme Court of Victoria

Sale of goodsGoods of value of ten pounds or upwards — Verbal contract — Contract with Crown — Crown bound by sec. 9 of Goods Act 1915 — Pleading — Allegation in defence that person acted as agent — Joinder of issue — Plaintiff not entitled to contend that purported agent had no authority — Goods Act 1915 (No. 2663), s. 9.

McCOLL v. PEACOCKVLR 102

CUSSEN, A.-C.J.·18 Feb 1924·Supreme Court of Victoria

PracticeService out of jurisdiction — Breach in New South Wales of contract made in Victoria — Leave to issue writ and to serve in New South Wales — Liberty to take further proceedings — How granted — Form of application in case not provided for by Supreme Court Act 1922 — Supreme Court Act 1915 (No. 2733), s. 141 — Supreme Court Act 1922 (No. 3264), Schedule — Service and Execution of Process Act 1901 (No. 11 of 1901), ss. 4, 8, 11 — Service and Execution of Process Act 1912 (No. 18 of 1912), s. 5.

KING v. THE CITY OF FOOTSCRAYVLR 110

(SCHUTT, MANN and McARTHUR, JJ.)·14 Dec 1923·Supreme Court of Victoria

Local governmentBy-laws, power to make — Regulating and restraining the erection and construction of buildings — By-law prohibiting intended use of building on site not previously approved by council — Power to "regulate" — Power to "restrain" — Unfettered discretion in council to approve of site — Power to restrain use of buildings — Whether by-law ultra vires — Local Government Act 1915 (No. 2686), ss. 197 (1), (2), (10); 198 (1) (a), (3) (f); 232 — Local Government Act 1921 (No. 3167), s. 10.

CITY OF BALLARAT v. WALLERVLR 115

CUSSEN, A.-C.J.·25 Feb 1924·Supreme Court of Victoria

Local governmentLandlord and tenant — Land on which arrears of rates due — Possession taken and land leased by municipality — Registered title still in name of original owner — Removal of gravel by tenant from land — Damage to realty — Whether action for damages and injunction maintainable by municipality — Covenants — Lease containing express covenant to repair — Covenant to use in tenant-like manner implied — Rights of original owner — Local Government Act 1915 (No. 2686), Part XI., Div. 5, ss. 332-339.

DUNN v. DUNNVLR 120

WEIGALL, A.-J.·17 Mar 1924·Supreme Court of Victoria

DivorceWife's costs — Investigation by proctor — "Sufficient separate estate," meaning of — Income of wife insufficient for her maintenance and also for her costs — Marriage Act 1915 (No. 2691), s. 159.

IN RE BARBERVLR 123

CUSSEN, A.-C.J.·3 Mar 1924·Supreme Court of Victoria

Administration and probateAdministration — Distribution of assets — Proprietary claim to portion of assets — Whether claim "against the estate" — Extension of time — Discretion of Court to make order — Trusts Act 1915 (No. 2741), s. 31 (3).

AHERN v. NELSONVLR 127

WEIGALL, A.-J.·31 Mar 1924·Supreme Court of Victoria

Factories and shopsInformation — Failure of occupier to keep posted lowest prices or rates of payment determined by wages board — Whether Act creates an offence — Factories and Shops Act 1915 (No. 2650), s. 169.

MENCK v. DICKINSONVLR 131

SCHUTT, J., MANN, J., and McARTHUR, J.·3 Mar 1924·Supreme Court of Victoria

EvidenceAdmissibility — Admission by party to third person proved at trial of action — Evidence of circumstances surrounding making of admission — Whether admissible to show admission was made under a mistake — Substantial wrong or miscarriage in trial — New trial ordered — Rules of Supreme Court 1916, Order XXXIX., r. 6; Order LVIII., r. 5.

JASPER v. F. WATKINS PTY. LTD.VLR 137

WEIGALL, A.-J.·31 Mar 1924·Supreme Court of Victoria

HealthOffensive trade — Piggery — Boiling-down works on same premises — Consent of municipal council to trade of piggery — No consent to carrying on boiling-down works — Boiling-down works incidental to trade of piggery — Operations "usually carried on in or in connection with" the trade of a piggery — No separate consent required for boiling-down works — "Establish" any offensive trade, meaning of — Health Act 1919 (No. 3041), ss. 77 (1) (a), 80 (2), Second Schedule.

McDOUGALL v. CARTERVLR 143

MANN, J.·2 Apr 1924·Supreme Court of Victoria

Husband and wifePrincipal and agent — Household necessaries supplied on order of wife living with her husband — Whether wife contracted "otherwise than as agent" — Burden of proof — Married Women's Property Act 1915 (No. 2692), s. 4 (3).

IN RE AUSTRALIAN UNITED INSURANCE CO. LTD.VLR 146

WEIGALL, A.-J.·20 Mar 1924·Supreme Court of Victoria

CompanyCommission — Liquidation — Proof of debt — Claim for commission for underwriting share capital — Agreement to underwrite share capital at 7 per centum on nominal value of all shares underwritten — Subsequent agreement that underwriting company should be entitled to 8000l. in any event — No mention of subsequent agreement in prospectus — Subsequent agreement not authorized by articles or approved by statutory meeting — Validity of agreement to pay lump sum for commission — Unenforceability of claim for 8000l. — Companies Act 1915 (No. 2631), ss. 87, 91, 97.

DAYTON v. THE WESTERN AUSTRALIAN INSURANCE COMPANY LIMITEDVLR 153

CUSSEN, A.-C.J., SCHUTT and MANN, JJ.·4 Apr 1924·Supreme Court of Victoria

PracticeTrial — Right to a jury — "Causes or matters within the cognizance of the Court in its equitable jurisdiction" — Claim for declaration simply — Purely common law cause of action — Purely equitable cause of action disclosed — Claim for declaration and damages — Rules of the Supreme Court 1916, O. XXV., r. 5; O. XXXVI., rr. 3, 6.

R. v. WESTONVLR 166

(CUSSEN, A.-C.J., SCHUTT and MacFARLAN, JJ.)·16 Apr 1924·Supreme Court of Victoria

Criminal lawIndecent assault — Corroboration — Direction to jury — Special reference to offence being "sexual" — Victorian practice — Miscarriage of justice — Crimes Act 1915 (No. 2637), s. 593.

CLOVERDELL LUMBER CO. PTY. LTD. v. ABBOTTVLR 173

[Coram KNOX, C.J., ISAACS AND GAVAN DUFFY, JJ.]·17 Mar 1924·In the High Court of Australia

PracticeSpecially endorsed writ — Principles on which leave to defend should be given — Money-lender, what constitutes — Whether one act of lending at more than 12 per cent. sufficient — Proof of past value of land — Whether present value relevant — Rules of the Supreme Court 1916, Or. XIV., r. 1. — Money-lenders Act 1915 (No. 2701), ss. 4, 5.

IN RE KNIGHTVLR 188

[SCHUTT, MANN and McARTHUR, JJ.]·31 Mar 1924·Supreme Court of Victoria

Barrister and solicitorQualification of candidate — Service under articles, dispensing with — Persons entitled to special exemptions — Officials — Service in office of Attorney-General or Solicitor-General — Meaning — Rules of the Council of Legal Education 1921, r. 21.

ABBOTT v. CLOVERDELL LUMBER COMPANY PTY. LTD.VLR 191

MANN, J.·4 Apr 1924·Supreme Court of Victoria

PracticeRight to trial by jury — "Matter not within cognizance of Court in its Equitable jurisdiction" before 1883 — Time for applying for jury — Application by defendant not made within ten days after appearance — Application prevented by act of plaintiff — Extension of time — Rules of the Supreme Court 1916, Order XXXVI., r. 6 — Order LXIV., r. 7.

VICKERY’S MOTORS PTY. LTD. v. TARRANTVLR 195

CUSSEN, A.-C.J.·7 May 1924·Supreme Court of Victoria

ContractInfancy — Company — Infants' Relief Act — Agreement by infant to purchase shares in company — Subsequent agreement made shortly after coming of age — Terms of agreements identical — Whether ratification or independent agreements — Tests considered — Supreme Court Act 1915 (No. 2733), s. 64.

IN RE THE CHURCH OF ENGLAND TRUSTS CORPORATIONVLR 201

WEIGALL, A.-J.·10 Apr 1924·Supreme Court of Victoria

TrustCharity — Lands separately settled in trust as site for a church and for parsonage — Application to sell portion of land and apply proceeds towards repair and improvement of parsonage — Jurisdiction of Court to vary trust — When it arises — No sale of trust land merely because beneficial.

DAWSON v. HOFFMANN BRICK AND POTTERIES LTD.VLR 208

MANN, J.·8 Apr 1924·Supreme Court of Victoria

Local governmentBy-law — Prohibition of blasting and quarrying operations except with consent of council — Exception as to "operations in connection with works commenced before" certain date — "Works," "in connection with," meaning of — Local Government Act 1915 (No. 2686), s. 197 (21).

ANDERSON v. KYNASTONVLR 214

(CUSSEN, A.-C.J., MANN and McARTHUR, JJ.)·6 May 1924·Supreme Court of Victoria

Police offencesOffensive behaviour — Behaving in offensive manner in a public place — Behaviour not felt to be offensive by any member of the public, nor by person against whom directed — Whether offence constituted — External standard — Police Offences Act 1915 (No. 2708), s. 25.

STEWART v. CITY OF ESSENDONVLR 219

WEIGALL, A.-J.·26 May 1924·Supreme Court of Victoria

Local governmentCity of Essendon — By-laws, power to make — Prescribing areas within municipal district as residential areas and prohibiting or regulating erection or use of any building for purposes of such classes of trades as specified in by-law — By-law prescribing as residential areas all properties situate in or having frontages to certain named streets — Uncertainty or unreasonableness — By-law prohibiting erection or use of buildings within such areas for purposes of all classes of trades — Want of classification or specification of trades, effect of — Whether by-law in excess of power — Local Government Act 1921 (No. 3167), s. 10.

MILNE v. DUGGANVLR 224

WEIGALL, A.-J.·14 May 1924·Supreme Court of Victoria

Motor-carsDriving motor-car on left or near side of road — Obligation, whether absolute — Motor-car driven by short cut across street intersection — Free passage of traffic not interrupted — Whether offence committed — "For the purpose of such passage" — Meaning — Motor-car Act 1915 (No. 2702), s. 15 (1) (a) — Motor-car Regulations 1918, regulation 3 (4).

BUTTNER v. BUTTNERVLR 229

MANN, J.·30 Apr 1924·Supreme Court of Victoria

PracticeCosts — Special scale in Appendix N — Money claim indorsed on writ — Notice by defendant — Subsequent amendment of writ adding claim not a money claim — Judge not "otherwise ordering" as to costs at trial within Order LXV., r. 29 (a) — Rules of the Supreme Court 1916, Order XXVIII., r. 7; Order LXV., r. 29 (a).

PAYNE v. FEDERAL COMMISSIONER OF LAND TAXVLR 231

MacFARLAN, J.·11 Apr 1924·Supreme Court of Victoria

Land tax (Federal)Assessment — Unimproved value — Land suitable for subdivision — Basis of assessment — Whether price obtainable on subdivisional sale or on sale en bloc to purchaser for subdivision — "Sale on such reasonable terms and conditions as a bon fide seller would require" — Meaning — Costs — Land Tax Assessment Act 1910-1916 (No. 22 of 1910 to No. 33 of 1916), ss. 3, 10.

IN RE CARLTONVLR 237

CUSSEN, A.C.-J., SCHUTT, J., and WEIGALL, A.-J.·2 June 1924·Supreme Court of Victoria

Administration and probateTestator leaving property in Victoria — Will not disposing of any property in Victoria — Probate, when Court will grant — Sealing exemplification of foreign probate — Whether Court has discretion — Administration and Probate Act 1915, ss. 5, 51.

IN RE BUCKLEYVLR 243

WEIGALL, A.-J.·30 May 1924·Supreme Court of Victoria

TrustsInfants — Maintenance — Application of corpus of trust property for maintenance of infants — Applications in regard to — Practice on application — Trusts Act 1915 (No. 2741), s. 65 — Rules of Supreme Court 1916 Order LIV., rr. 1, 11; Order LV., rr. 2 (12), 3.

ULBRICK v. LAIDLAWVLR 247

(SCHUTT, MANN and McARTHUR, JJ.)·2 May 1924·Supreme Court of Victoria

ContractAuction — Sale of goods — Sheep — Conditions of auction — Dispute between two or more bidders — Lot or lots to be put up and resold — Two bids at highest price — One not observed — Lot knocked down to highest bidder observed — Protest by other bidder — "Dispute" between bidders — Powers of auctioneer — Duty to put up lot for resale.

COMMERCIAL BANK OF AUSTRALIA LTD. v. BARNETTVLR 254

CUSSEN, A.-C.J.·27 May 1924·Supreme Court of Victoria

Bills of exchangeCheques payable to order — Crossed "not negotiable" — Cheques cashed by banker — Collection from drawer's banker — Subsequent repayment — Cheques obtained by fraud — Purported indorsement by non-existent payee — Sale of cheques — Indorsement by seller — Implied warranty at common law on sale of cheque — Rights of purchaser against seller — Money had and received — Damages for breach of warranty — Interest — Bills of Exchange Act 1909-1912 (No. 27 of 1909, No. 24 of 1912), ss. 60, 63, 87.

IN THE WILL OF O’BRIENVLR 262

CUSSEN, A.-C.J.·17 Mar 1924·Supreme Court of Victoria

WillConstruction — Bequest of "stock and debentures" — May include ordinary shares partly paid up and preference shares fully paid in limited companies — Bequest of "life policies furniture effects and all other personal property whatsoever" — Whether specific in part or altogether residuary — Administration — Marshalling assets — Life assurance policies — Whether liable for payment of funeral and testamentary expenses or probate duty — Residuary personal estate insufficient for payment of debts — Recourse to specific legacy charged by testator in his lifetime — Leave granted to executors to fix portion of debts representing value of residue and after payment by legatee aliunde to transfer residue in specie — Companies Act 1915 (No. 2631), sec. 476 (3), (4).

FOSTER v. FRANKLINVLR 269

CUSSEN, A.-C.J. and MacFARLAN, J.·6 May 1924·Supreme Court of Victoria

ConversionSale of chattel by person not the owner — Chattel not in vendor's possession — Delivery, what amounts to — Licence to buyer to take possession.

BOOTH v. SHELMERDINE BROS. PTY. LTD.VLR 276

McARTHUR, J.·27 June 1924·Supreme Court of Victoria

JusticesCourt of Petty Sessions — Jurisdiction — Federal or State — Matters arising under a law of the Commonwealth Parliament — Concurrent jurisdiction — Jurisdiction exercisable at instance of litigants — Power of Court in its State jurisdiction — Imprisonment of fraudulent debtors — "Costs alone" — Whether applicable to order for costs to be paid by an unsuccessful complainant — Judiciary Act 1903-1920 (No. 6 of 1903, No. 38 of 1920), s. 39 — Imprisonment of Fraudulent Debtors Act 1915 (No. 2667), s. 22 — Practice — Order to review — Proof of facts affecting jurisdiction not proved at hearing.

CARR v. SHIRE OF WODONGAVLR 286

[Coram KNOX, C.J., ISAACS, RICH AND STARKE, JJ.]·29 May 1924·In the High Court of Australia

ArbitrationStatement of case by arbitrators — "Question of law arising in the course of the reference" — Arbitrators asked to state case before giving award — Refusal of arbitrators — Jurisdiction of Court to direct arbitrators to state case on question of law — Exercise of Court's discretion — Questions arising incidentally during the reference — Questions in dispute before the reference — Form of questions to be asked in special case settled — Arbitration Act 1915 (No. 2614), s. 19.

BAILEY v. BAILEYVLR 294

[Coram KNOX, C.J., ISAACS, GAVAN DUFFY, RICH AND STARKE, JJ.]·10 June 1924·In the High Court of Australia

WillTestamentary capacity — Weakness — Old age — Forgetfulness — Onus of proof — Circumstances of execution raising prim facie case of capacity — Opinions of attesting witnesses — Instructions on date antecedent to execution.

GELL v. DAVISVLR 315

(CUSSEN, A.-C.J., SCHUTT, and MacFARLAN, JJ.)·10 June 1924·Supreme Court of Victoria

Malicious prosecutionInnocence of plaintiff — Termination of criminal proceedings in plaintiff's favour, whether conclusive — Nolle prosequi — Evidence — Instituing criminal proceedings — Concocted story designed to bring about laying of information — Depositions on criminal proceedings — Admissibility — Whether must be put in — Practice — New trial — Misdirection — No substantial miscarriage of justice — Rules of the County Court 1922, r. 192.

WILLIAMS v. CHIEF INSPECTOR OF FACTORIESVLR 321

McARTHUR, J.·1 July 1924·Supreme Court of Victoria

Factories and ShopsRegulations — Removal of dust from buffing wheels and polishing belts — Ventilation — Arrangements for securing health of employees — Validity of regulations — Regulations not purporting to be made under specific section — Factories and Shops Act 1915 (No. 2650), s. 242.

IN RE WARREN’S SETTLEMENTVLR 326

SCHUTT, J.·28 July 1924·Supreme Court of Victoria

Settled landPerson having powers of tenant for life, sale by — Clause in settlement prohibiting sale, whether void — Settled Estates and Settled Lands Act 1915, ss. 117, 124 (1) (ix.), (2).

R. v. HOPKINSVLR 329

SCHUTT, J.·10 July 1924·Supreme Court of Victoria

Criminal lawBail — Demand with menaces — Application for bail after conviction and pending appeal — "Special circumstances" — Crimes Act 1915 (No. 2637), ss. 116, 452, 605, 608.

PAGE v. WATSONVLR 330

McARTHUR, J.·30 June 1924·Supreme Court of Victoria

PracticeInterrogatories — Sale of business — Alleged fraud — Representations as to takings prior to sale — Interrogatories as to takings subsequent to sale — No proof that business carried on in same way — Inadmissibility — Rules of Supreme Court 1916, Order XXXI., rr. 1, 6.

BROWN v. SMITTVLR 333

[Coram KNOX, C.J., ISAACS, GAVAN DUFFY, RICH, AND STARKE, JJ.]·13 May 1924·In the High Court of Australia

ContractSale of land — Misrepresentation — Rescission — Action by purchaser — Restitutio in integrum — Purchaser in possession of farm — Improvements, permanent and otherwise — Repairs — Collateral losses by purchaser carrying on business — How far compensation allowable — Delay — Laches — Election to affirm contract, test of — Form of account.

BUNKER v. KELLYVLR 349

McARTHUR, J.·1 July 1924·Supreme Court of Victoria

Police offencesVagrancy — Rogue and vagabond — Person found without lawful excuse in enclosed garden — "Garden" — "Enclosed garden" — Nursery garden enclosed by fence belonging to Melbourne City Council — Garden not attached to dwelling — Defendant previously presented on charge of warehousebreaking — Nolle prosequi — Liability of defendant to be charged with summary offence on facts partly the same — Autrefois acquit — Defendant not in jeopardy on previous charge of conviction on present charge — Police Offences Act 1915 (No. 2708), s. 72 (13).

IN RE KENNONVLR 356

CUSSEN, A.-C.J.·22 Feb 1924·Supreme Court of Victoria

TrustsAdministration — Life tenant and remainderman — Capital or income — Company — Conversion of undistributed profits into capital — Declaration of dividend — Issue of new shares — Intention of directors conveyed to shareholders — Partial application of dividend in payment of new shares — Real option to shareholders — Value of shares a little above par — Distribution of dividend and payment for new shares, whether linked together as parts of same transaction — Whether conversion into capital — Practice — Release by life tenant — Oral evidence on originating summons — Validity determined — Rules of Supreme Court 1916, Order LV., r. 3.

IN RE CASTIEAUVLR 366

CUSSEN, A.-C.J., SCHUTT, J., and WEIGALL, A.-J.·6 Aug 1924·Supreme Court of Victoria

Barrister and solicitorAdmission to practise — "Service under articles" — Declaration by Supreme Court dispensing with service under articles — Applicant employed in office of Attorney-General for Commonwealth — Work performed by applicant such as to require a knowledge of law — Legal Profession Practice Act 1915 (No. 2681), s. 14 — Rules of Council of Legal Education of 20th October 1921, r. 21.

IN RE SALEEBAVLR 369

(CUSSEN, A.-C.J., McARTHUR, J., and WEIGALL, A.-J.)·6 Aug 1924·Supreme Court of Victoria

Barrister and solicitorAdmission to practise — "Service under articles" — Declaration by Supreme Court dispensing with service under articles — Applicant employed in office of Commonwealth Crown Solicitor — Whether work performed by applicant such as to entitle him to an order dispensing with articles — Legal Profession Practice Act 1915 (No. 2681), s. 14 — Rules of Council of Legal Education of 20th October 1921, r. 21.

IN RE BENNETTVLR 372

(CUSSEN, A.-C.J., McARTHUR, and WEIGALL, JJ.)·1 Aug 1924·Supreme Court of Victoria

Barrister and solicitorQualification for admission — Service in lieu of articles in specified Government offices — Period of ten years — Whether service in fact necessary — Applicant on leave of absence on war service — Legal Profession Practice Act 1915 (No. 2681), s. 14 — Rules of the Council of Legal Education 1921, rr. 21, 22.

R. v. MURRAYVLR 374

SCHUTT, MANN, and McARTHUR, JJ.·14 Mar 1924·Supreme Court of Victoria

Criminal lawMurder — Two persons concerned — Actual killing by person other than accused — Preconcert, evidence of, whether sufficient — Proof of guilt, onus of, sufficiency of direction — "Beyond reasonable doubt" — Attempting to define meaning of — Conduct of trial, how far relevant to question of sufficiency of direction — Shorthand notes of proceedings — Correction by Judge — Crimes Act 1915 (No. 2637), ss. 3, 593, 594 (1), 599.

NEPTUNE OIL COMPANY LTD. v. CITY OF RICHMONDVLR 385

SCHUTT, J.·4 Aug 1924·Supreme Court of Victoria

Local governmentBy-law — Validity — Power of regulating and prohibiting storage of dangerous things — Building proposed to be used for storage of more than 250 gallons of volatile fluids — Approval by council of site of building required — Power to prohibit — Power to require approval of site — Unreasonableness — Ultra vires — Local Government Act 1915 (No. 2686), ss. 197 (20), 198 (1) (a), 214, 218, 232 — Health Act 1919 (No. 3041), ss. 3 (1) (2), 75 (j).

IN RE OTWAY SOCIAL CLUBVLR 390

CUSSEN, A.-C.J., McARTHUR and MacFARLNA, JJ.·28 Aug 1924·Supreme Court of Victoria

LicensingClub — Application for certificate of registration — Refusal — Power of Licensing Court to state case for Supreme Court — Licensing Act 1915 (No. 2683), ss. 67, 250.

WILLIAMS v. CHIEF INSPECTOR OF FACTORIESVLR 391

CUSSEN, A.-C.J., MacFARLAN, J., and WEIGALL, A.-J.·29 Aug 1924·Supreme Court of Victoria

Factories and shopsRegulations — Removal of dust from buffing wheels and polishing belts — Ventilation — Arrangements for securing health of employees — Generally for the better carrying out of the provisions of the Act — Validity of Regulations — Factories and Shops Act 1915 (No. 2650), ss. 62, 242.

IN RE McPHEEVLR 394

SCHUTT, J.·24 July 1924·Supreme Court of Victoria

Administration and probateWill — Execution — Attestation — Will made by testator on printed form — Signed on first and second pages — Attestation only on first page, whether will sufficiently attested — Wills Act 1915 (No. 2749), s. 7.

McMAHON v. SWANVLR 397

WEIGALL, A.-J.·7 Aug 1924·Supreme Court of Victoria

Landlord and tenantOption to purchase — Rule against perpetuities — Lease for uncertain period terminable by notice, with option to purchase leased premises — Whether option creates an interest in land — Option granted to partners — Dissolution and equitable assignment of interest — Whether option enforceable by continuing partner — Transfer of land — Transfer by lessor to third person — Subsequent attempted creation of easement — Rights under option, whether preserved as encumbrance affecting third person's title — Transfer of Land Act 1915 (No. 2740), s. 72 — Practice — Registrar of Titles as defendant — No appearance — No motion for judgment — Rules of Supreme Court 1916 — Order XIII., r. 12; Order XXI., r. 8; Order XXVII., r. 11.

CORLESS v. CITY OF RICHMONDVLR 408

CUSSEN, A.-C.J., McARTHUR and MacFARLAN, JJ.·28 Aug 1924·Supreme Court of Victoria

Local GovernmentBy-laws, power to make — Prescribing areas within the municipal district as residential areas and prohibiting or regulating erection or use of any building for purposes of such classes of trades as are specified in by-law — By-law prescribing as residential areas all properties situate in or having frontages to certain named streets — Uncertainty — By-law prohibiting erection or use of buildings within such areas for purposes of unspecified classes of trades — Whether specification necessary — Local Government Act 1921 (No. 3,167), s. 10.

FINCH v. POND AND THE HARRISON PATENT KNITTING MACHINE CO. LTD.VLR 411

MacFARLAN, J.·21 Aug 1924·Supreme Court of Victoria

PracticeService out of jurisdiction — British corporation — Service permissible — Supreme Court Act 1922 (No. 3264), schedule.

MACKAY v. MAYVLR 413

CUSSEN, A.-C.J.·10 Sept 1924·Supreme Court of Victoria

JusticesForm of information — Duplicity — Motor-car — Driving — "Negligently in a manner dangerous to the public" — Whether two offences — Amendment of information and conviction — Motor Car Act 1915 (No. 2702), s. 10 (1). — Justices Act 1915 (No. 2675), s. 155.

HOOD v. GRAVEVLR 416

SCHUTT, J.·15 July 1924·Supreme Court of Victoria

LicensingSale of liquor with meals between 6 p.m. and 8 p.m. — Permit, condition of — Outer door to be "kept unlocked" — "Yale" lock on inside — Not keeping door unlocked, whether an offence — Licensing Act 1916 (No. 2855), s. 31 (1) — Licensing Act 1922 (No. 3269), ss. 35, 43.

SPENCER v. PIERCEVLR 421

CUSSEN, A.-C.J., McARTHUR, J., and WEIGALL, A.J.·25 Aug 1924·Supreme Court of Victoria

ContractIllegality — Gaming — House kept for conducting the business of gaming — Commission on bets "brought to" house — Whether recoverable — Bets paid at request of keeper — Whether recoverable — Police Offences Act 1915 (No. 2708), s. 97.

PEART v. VICTORIAN RAILWAYS COMMISSIONERSVLR 425

CUSSEN, A.-C.J., McARTHUR and MacFARLAN, JJ.·28 Aug 1924·Supreme Court of Victoria

RailwaysEmployee — Claim for pension — Public corporation with limited powers — Railways Commissioners — Representation that employee is entitled to pension — No power to contract to grant pension — Estoppel — Pension — County Court — Jurisdiction to hear claim for pension — Railways Act 1915 (No. 2716), ss. 175, 183 (2).

McLEOD v. CARDIFF COLLIERY CO.VLR 430

WEIGALL, A.-J.·11 Aug 1924·Supreme Court of Victoria

ContractCompany — Contract between syndicate and agents — Contract purporting to be for company before incorporation — Employment of agents — Conduct of company after incorporation — Implication of new contract to like effect — Intention to contract — Statute of Frauds — Agreement not to be performed within one year — Memorandum — References in correspondence to written agreement before incorporation — Whether sufficient — Signature of company's secretary — Whether "thereunto by him lawfully authorized" — Formal contract contemplated — Contract binding although formal agreement not executed — Instruments Act 1915 (No. 2672), s. 228.

BELFRAGE v. McNAUGHTONVLR 441

MacFARLAN, J.·2 Sept 1924·Supreme Court of Victoria

Vendor and purchaserSale of land — Statement of acreage — "280 acres more or less" — Deficiency of 18 acres — Whether misdescription of area — "More or less" — Meaning — How far deficiency covered — Compensation to purchaser — Basis — Conveyancing Act 1915 (No. 2633), s. 12 — Transfer of Land Act 1915 (No. 2740), Twenty-fifth Schedule, Table A.

GUY v. PIONEER TOURIST COACHES PTY. LTD.VLR 445

CUSSEN, A.-C.J.·4 Sept 1924·Supreme Court of Victoria

County CourtJurisdiction — Joinder of parties — Causes of action joined — Action by husband and wife for tort — Remission — Action incapable of commencement in County Court — County Court Act 1915 (No. 2636), ss. 48, 51, 54.

CRICHTON v. CRICHTONVLR 448

WEIGALL, A.-J.·19 Sept 1924·Supreme Court of Victoria

DivorceDesertion — Deed of separation still in force at date of alleged desertion, effect of — Non-payment under deed — Disappearance — Intention to treat deed as a nullity — Marriage Act 1915 (No. 2691), s. 122a.

MOLONEY v. WHITWELLVLR 454

CUSSEN, A.-C.J.·24 Sept 1924·Supreme Court of Victoria

Police offences"Public place" — "Place to which the public . . . are permitted to have access" — Sanitary convenience in church grounds — Entrance partially fenced in — Act of indecency — Police Offences Act 1915 (No. 2708), ss. 27 (f), (g), (m), (n), (o); 72 (5) — Practice — General Sessions — Order of names of parties in case stated.

CAVANAGH v. BERNASOCHIVLR 457

SCHUTT, J.·11 Sept 1924·Supreme Court of Victoria

Police offencesAmendment of information — Betting houses and places — User of house for betting purposes — Continuous offence — Period of user specified in information — Proof of user for lesser period — User on one day — Repeated acts — Continuing offence — Power of Justices to convict for lesser period without amending information — Duplicity — Uncertainty — Police Offences Act 1915 (No. 2708), ss. 97, 98.

EX PARTE HUTCHISONVLR 463

SCHUTT, J.·1 Oct 1924·Supreme Court of Victoria

ArchitectRegistration of — Qualifications for registration — Architect and builder — "Person who has for one year . . . been engaged . . . in the practice of the profession of an architect" — Applicant not practising exclusively as architect — Meaning of "one year" — Decision of Board not final — Architects Registration Act 1922 (No. 3207), s. 7.

R. v. TAYLORVLR 467

MANN, J.·28 Aug 1924·Supreme Court of Victoria

Criminal lawJustices — Conviction — Indeterminate sentence — Conviction by Court of Petty Sessions — Prisoner sentenced and ordered to appear before Supreme Court to be dealt with under Indeterminate Sentences provisions of the Crimes Act 1915 — Appeal to Court of General Sessions — Jurisdiction of Court of General Sessions to quash that part of order directing prisoner to be dealt with under Indeterminate Sentences provisions — Procedure where order made without jurisdiction by General Sessions — Crimes Act 1915 (No. 2637), s. 516 — Indeterminate Sentences Act 1915 (No. 2758), s. 7 — Justices Act 1915 (No. 2675), ss. 136, 137 (8).

MYERS v. WITHAMVLR 470

CUSSEN, A.-C.J.·13 Oct 1924·Supreme Court of Victoria

Vendor and purchaserContract for sale of land — Balance of deposit to be paid before the taking of possession — Date of completion of contract — No date specified — Claim by municipality in respect of street formation — Charge on land created after balance of deposit paid but before possession taken — Presumed intention — Whether vendor or purchaser liable — Local Government Act 1915 (No. 2686), Part XVIII., Div. 11, s. 526 et seq. — Conveyancing Act 1915 (No. 2633), s. 12.

WOODMASON’S MELROSE DAIRY PTY. LTD. v. KIMPTONVLR 475

SCHUTT, MANN, and MacFARLAN, JJ.·16 Oct 1924·Supreme Court of Victoria

ContractRestraint of trade — Restraint of trade with particular persons — Master and servant — Covenant not to solicit or serve customers of employer for six months from termination of employment — Validity of covenant — Extent of employer's right to protection.

AHERN v. RICHARDSONVLR 482

SCHUTT, J.·7 Oct 1924·Supreme Court of Victoria

HealthPractice — Offensive trade, carrying on — Offence — Who may lay complaint — Health Act 1919 (No. 3041), ss. 82, 351 (2), 354 (2), 355 (1), 357 (1) (b), 369.

R. v. HOPKINSVLR 484

CUSSEN, A.-C.J., McARTHUR, J., and WEIGALL, A.-J.·4 Sept 1924·Supreme Court of Victoria

Criminal lawDemanding money with menaces — Attempt — Misdirection — Verdict of guilty of attempt only — Whether equivalent to acquittal of offence charged — New trial — Crimes Act 1915 (No. 2637), ss. 116, 452, 595.

R. v. BROWNVLR 491

SCHUTT, MANN, and McARTHUR, JJ.·12 Sept 1924·Supreme Court of Victoria

Criminal lawPractice — Joint presentment — Obtaining money by false pretences — Money received in part by one and in part by the other of two persons presented, but as result of false pretence jointly made — Whether joint offence — Whether valid presentment — Crimes Act 1915 (No. 2637), s. 181.

IN RE HILLVLR 496

CUSSEN, A.-C.J.·23 Sept 1924·Supreme Court of Victoria

TrustsAdministration — Charge on land payable on future event — Infants — Scheme for exoneration of land by payment into Court of larger sum, with directions for payment of interest pending the happening of event and for payment out — Sanction of Court — Trusts Act 1915 (No. 2741), s. 62.

KHYAT v. SCHMIDTVLR 499

CUSSEN, A.-C.J.·13 Oct 1924·Supreme Court of Victoria

JusticesSetting aside ex parte order — Default summons — Returnable on day when Court not sitting — Notice of intention to defend given — Postponement of hearing by Clerk of Petty Sessions in absence of Justices — Further adjournment in absence of defendant — Order against defendant in his absence — Application by defendant to set aside order after twenty-one days — Whether sustainable under sec. 66 of Justices Act 1915, having regard to sec. 2 (1) (d) of Default Summonses Act 1915 — Whether order validly made having regard to postponement of hearing — Scope of sec. 66 — Justices Act 1915 (No. 2675), ss. 66, 89 (5), 99 — Default Summonses Act 1915 (No. 2771), s. 2 (1) (d).

IN RE THE AUSTRALIAN UNITED INSURANCE CO. LTD.VLR 505

SCHUTT, MANN and MacFARLAN, JJ.·13 Oct 1924·Supreme Court of Victoria

CompanyWinding up — Summons to contributories who have not paid — Service by post — Service on contributories in other States of the Commonwealth — Service and Execution of Process Act 1901-1922, ss. 3, 5, and 14 — Rule 15 of Rules under the Companies Act 1915.

MIDLAND BANK LTD. v. BROWNVLR 507

MacFARLAN, J.·19 Aug 1924·Supreme Court of Victoria

PracticeThird party proceedings — Whether appropriate — Warranty of authority — Indemnity — Bill of exchange — Agreement between acceptor and agent of indorsee — Liability of acceptor to be terminated on certain terms — Repudiation of agreement by indorsee — Action by indorsee against acceptor — Liability of agent to third party proceedings — Rules of the Supreme Court, Order XVI, r. 48.

IN RE BIRCHVLR 510

SCHUTT, J.·20 Nov 1924·Supreme Court of Victoria

Administration and probateAdministration — Executor and trustee — Commission — Provision in will — Rate of commission upon income fixed — Accompanied by declaration that a specified executor should be entitled to a specific sum as commission on corpus — Whether other executors entitled to commission on corpus — Administration and Probate Act 1915 (No. 2611), s. 34.

DRIVER v. THE WAR SERVICE HOMES COMMISSIONERVLR 515

CUSSEN, A.-C.J., McARTHUR J., and WEIGALL, A.-J.·26 Sept 1924·Supreme Court of Victoria

ArbitrationSpecial case — Application to Court to direct statement of — "Matter of law arising in the course of the reference," what is — Conflict of evidence — No evidence — Function of arbitrators — Arbitration Act 1915 (No. 2614), s. 19.

DRIVER v. THE WAR SERVICE HOMES COMMISSIONERVLR 535

CUSSEN, A.-C.J., McARTHUR, J., and WEIGALL, A.J.·26 Sept 1924·Supreme Court of Victoria

ArbitrationSpecial case stated — Three arbitrators, majority to decide — Facts stated found by two only — Contract — Supply of timber — Evidence — Construction of written document — Ambiguity — Extrinsic evidence, admissibility of — "Current market price" — Meaning of — Course of dealing where meaning of contract doubtful.

NICHOLAS v. THOMPSONVLR 554

CUSSEN, A.-C.J., McARTHUR, J., and WEIGALL, A.-J.·29 Oct 1924·Supreme Court of Victoria

ContractSale of chattel interests — Fraudulent misrepresentation by seller — Allegation as to previous offers and refusal — Materiality — What constitutes a material misrepresentation — Whether essential part of cause of action — Inducement — What amounts to — Pleading — What must be alleged by plaintiff — Disaffirmation before action — Not necessary — Appeal — Course of conduct at trial — How far binding on appeal.

COLLIGAN v. COLLIGANVLR 583

MacFARLAN, J.·13 Nov 1924·Supreme Court of Victoria

DivorceDesertion — Petitioning wife guilty of adultery — Exercise of discretion in favour of wife — Principles on which exercised — Marriage Act 1915 (No. 2691), ss. 122 (a), 131.

BYSOUTH v. CITY OF NORTHCOTEVLR 587

SCHUTT, J.·26 Nov 1924·Supreme Court of Victoria

Local GovernmentCity of Northcote — By-laws, power to make — Prohibiting, regulating, or controlling quarrying or blasting operations — By-law purporting to be made for regulating or controlling quarrying operations, but in form forbidding such operations except under such conditions as to time, place and extent as should be appointed or approved by the municipal council — Whether regulating or prohibiting — Uncertainty — Unreasonableness — Validity — Local Government Act 1915 (No. 2686), ss. 197 (21), 214 (1), 218 (1).

GERMANO v. GRESHAM FIRE AND ACCIDENT INSURANCE SOCIETY LTD.VLR 592

CUSSEN, A.-C.J., and WEIGALL, A.-J., and McARTHUR, J.·29 Oct 1924·Supreme Court of Victoria

InsuranceEmployers' indemnity policy — Workers' compensation — Contract to indemnify "the insured" — Firm of four partners — Trading under trade name — Dissolution — One partner continuing business under same trade name — Claim of employee of continuing partner subsequent to dissolution — Liability of insurer — "Fluctuating body" — Joint or several rights.