IN RE MacMULLENVLR 1
Will — Construction — "Dic unmarried and without lawfully begotten children" — "And" read as "or".
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Cases reported in this volume of the Victorian Reports
Will — Construction — "Dic unmarried and without lawfully begotten children" — "And" read as "or".
Factories and shops — Hairdresser's shop — Alcove enclosed by three walls, the fourth side having, instead of a wall, a screen with an opening covered by a curtain — Building controlled by municipal council and used as public baths — Occupier — Person carrying on business of hairdresser therein for reward with permission of council — Closing of shop — Factories and Shops Act 1928 (No. 3677), secs. 3, 87, 229 (k).
Administration and probate — Will — Widow left without sufficient means of support — Application for provision out of testator's estate — Distressed circumstances of widow — Matters to be considered by Court — Costs of unsuccessful application — Administration and Probate Act 1928 (No. 3632), sec. 139.
Motor car — Weight — "Allow . . . to be weighed on a portable mechanical device" — Obligation on driver to take reasonable and necessary steps to enable weighing to be carried out — Driving car onto device — Motor Car Act 1930 (No. 3901), sec. 27.
Divorce — Desertion — Petitioner justified in leaving matrimonial home — Offer to return — Refusal — Commencement of desertion.
Unemployment relief — Work and labour — In return for sustenance and pursuant to demand — Work in excess of statutory obligation required — Claim on common count — Unemployment Relief (Administration) Act 1932 (No. 4079), sec. 8.
Contract — Hire purchase agreement — Offer to sign "usual hiring agreement" of offeree or its nominee — Uncertainty.
Company — Guarantee — Execution by managing director — Ratification by shareholders — Directors' power to delegate to managing director — Affixing of seal — Attestation by "officer" of company — Memorandum satisfying Statute of Frauds.
Local government — Building by-law — Mandamus to council — Building to comprise 228 residential flats — Use for purposes of business — Plans complying with building by-law — Permit to build refused — Bond fide belief by council on reasonable grounds that erection of building would contravene residential areas by-law — Refusal of mandamus — Local Government Act 1928 (No. 3720), sec. 198.
Police offences — Betting — "Place" — "User" — Police Offences Act 1928 (No. 3749), secs. 87, 97.
Indemnity — Company entitled to — Dissolution of company — Effect on its liabilities — Rights of assignee of right of indemnity — Transfer of Land Act 1928 (No. 3791), sec. 127 — Companies Act 1928. (No. 3659), sec. 196.
Contract — Grant of right to produce and perform musical play — Exception of motion picture film rights — Whether "sound pictures" within exception.
Will — Construction — Tenant for life and remainderman — Hazardous investments — Reversionary property — Conversion — Discretionary power to sell or postpone sale — Apportionment — Rule in Howe v. Earl of Dartmouth ([1802] 7 Ves. 137a).
Transport regulation — Limitation of hours of duty for drivers of motor cars used for the carriage of goods — "Passenger" — Owner of vehicle carried thereon while employee driving — Transport Regulation Act 1933 (No. 4198), sec. 39.
Local government — Water — Charge — Council accepting control and management of waterworks — Whether entitled to withhold supply of water to rated property until payment of moneys owing for excess water supplied to previous occupier — Local Government Act 1928 [No. 3720], secs. 197 (1) (iv), 385 (1), 651 (2).
Local government — Street construction — Land fronting, adjoining or abutting on street intended to be formed — Sale of land prior to sending out of notices of scheme — Notice of change of ownership given after service of notice of scheme but before its adoption — Whether vendor liable to contribute to cost of construction — Local Government Act 1928 [No. 3720], secs. 347, 350, 574-580, 833.
Administration and Probate — Duties on deceased persons' estates — Shares in proprietary company — Restrictions on transfer — Powers of governing director — Valuation of shares — Administration and Probate Act 1928 (No. 3632), sec. 152.
Milk and dairy supervision — Prices to suppliers of milk — Milk received at a factory — Receipt for manufacturing purposes — "Surplus milk" — Milk and Dairy Supervision Act 1928 (No. 3736), sec. 18 — Dairy Produce Act 1935 (No. 4349), sec. 2.
Administration and Probate — Duties on deceased persons' estates — Joint property — Acquired by purchase — Beneficial interest passing by survivorship — Liability to duty — Administration and Probate Act 1928 (No. 3632), sec. 174.
County Court — Remission to — Infant plaintiff — No visible means of paying defendant's costs — Whether plaintiff's or next friend's means to be considered — Circumstances rendering it advisable that action be tried in Supreme Court — County Court Act 1928 (No. 3663), sec. 58.
Practice — Stay of proceedings pending appeal — Discretion as to granting — Rules of the Supreme Court 1916, Order LVIII, r. 16.
Divorce — Frequent convictions — "Sentenced in the aggregate to imprisonment for three years" — Sentence during Governor's pleasure — Sentence prior to marriage — Marriage Act 1928 (No. 3726), sec. 75 (c).
Lunacy — Detention in hospital for insane — Discharge — Temporary nature of insanity — Probability of recurrence — Likelihood of danger — Patient a chronic alcoholic — Lunacy Act 1928 (No. 3721), sec. 103.
Criminal Law — Conviction — Setting aside — New evidence — As to credit only — Order on appeal — Power of Full Court to set aside — Reference to Full Court on petition for mercy — Form of petition — Crimes Act 1928 (No. 3664), sec. 610.
Transport Regulation — Vehicle operated otherwise than in accordance with the licence relating thereto — Driver's want of knowledge of the terms of the licence — Transport Regulation Act 1933 (No. 4198), sec. 46.
Police offences — Offensive behaviour — At public meeting — Meeting of municipal council — Whether a "public meeting" — Local Government Act 1928 (No. 3720), sec. 183 (4) — Police Offences Act 1928 (No. 3749), sec. 32.
Book debts — Assignment — Unregistered instrument — Moneys received by assignee under — Deed of arrangement under Part XII. of Bankruptcy Act by assignor — Assignee of book debts an assenting creditor — Whether entitled to hold moneys received as assignor against trustee of deed of arrangement — Set-off — Whether assignee entitled to set off money payable by him to trustee against money owing to him by assignor — Instruments Act 1928 (No. 3706), sec. 81 — Bankruptcy Act 1924-1933 (No. 37 of 1924 — No. 66 of 1933), secs. 82, 199.
Police offences — Warrant to enter premises and to arrest, search and bring before a justice persons found therein — Attempted search by police without arresting — Whether police acting in execution of duty — Obstruction — Police Offences Act 1928 (No. 3749), secs. 124, 145.
Practice — Order nisi to review a conviction — Death of party before return — Joinder of personal representative — Jurisdiction to hear — Rules of the Supreme Court 1916, Order XVII., r. 4.
Real Property — Restrictive covenant — Not to erect any building except a double-fronted house — Double-fronted villa containing two dwellings — Whether erection a breach of covenant.
Will — Husband and wife — Agreement by husband, in consideration of wife leaving him residue of her estate should he survive her, to leave his property to named persons — Creation of legal relationship — Wills made in accordance with agreement — Whether any repugnancy between absolute gift in wife's will and husband's promise — Husband surviving wife and making fresh will, not in accordance with agreement, after accepting benefits given, by wife's will — Whether agreement enforceable, after husband's death, for benefit of persons named in it — Instruments Act 1928 (No. 3706), sec. 128.
Lunacy — Jurisdiction of Supreme Court — "Management" of lunatic's estate — Purchase of land as an incident of management — Sanction of Court to purchase — Lunacy Act 1928 (No. 3721), sec. 131.
Sale of goods — Goods not in possession of seller at time of sale — Seller subsequently acquiring possession — Re-sale by person who having sold goods "is in possession of the goods" — Receipt of goods in good faith without notice of previous sale — Title to goods — Goods Act 1928 (No. 3694), sec. 30.
Local Government — Making streets at cost of frontagers — Road set out on private property — Road formerly formed to satisfaction of council — Reconstruction of road — Liability of frontagers — Local Government Act 1928 (No. 3720), sec. 574.
Practice — Case stated — Setting down for hearing — Reference to Full Court — Rules of Supreme Court 1916, Order XXXIV., rr. 1, 5.
Administration and Probate — Duties on deceased persons' estates — Joint property — Acquired by purchase — Beneficial interest passing by survivorship — Liability to duty — Administration and Probate Act 1928 (No. 3632), sec. 174.
Criminal Law — Conviction — Setting aside — New evidence — As to credit only — Mode of identification of accused persons — Direction as to evidence of identification.
Administration and probate — Will — Widow left without sufficient means of support — Application for provision out of testator's estate — Matters to be considered by Court — Refusal of application — Appellate Court's discretion — Administration and Probate Act 1928 (No. 3632), sec. 139.
Local Government — Proceedings of council — Appointment of shire solicitor — Notice of motion to revoke — Refusal of president to put motion to council meeting — Point of order — Mandamus — Solicitor's retainer — Termination whether amounting to breach of contract — Local Government Act 1928 (No. 3720), Thirteenth Schedule, Part XI., cl. 21.
Licensed premises — Permit for supply of liquor during prohibited hours — Extension of permit — Failure to keep door by which access had to dining room unlocked during hours specified in extension — Offence — Consolidating Act changing law — Licensing Act 1928 (No. 3717), secs. 43, 159.
Practice — Determination of questions of law before evidence is given — Convenience — Possibility of evidence being put in jeopardy — Rules of the Supreme Court 1916, Order XXXIV., r. 2.
Criminal Law — Evidence — Conduct of police — Identification — Showing photograph of suspected person to identifying witness — Evidence of informers — Warning to jury — Sufficiency of Judge's charge.
Medical practitioner — Registration as — Course of study of applicant — Pursued in non-reciprocating foreign country — Whether applicant entitled to registration — Medical Act 1928 (No. 3730), secs. 13, 14.
Will — Tenant for life and remainderman — Contract of Sale — Deficiency on realisation after testator's death — Apportionment of proceeds.
Will — Bequest of "all the money I die possessed of including money in hand or in any bank" — Distributive share in intestate estate coming in after testatrix's death — Whether included in bequest.
County Court — Jury — Remitted action — Plaintiff's right to a jury — County Court Act 1928 (No. 3663), secs. 58, 67, 87 (6).
Divorce — Desertion for three years and upwards — Separation agreement after expiration of statutory period — No covenant not to sue — Matrimonial relationship not resumed — Whether agreement a bar to petition — Marriage Act 1928 (No. 3726), sec. 75 (a).
Road traffic — "More than two vehicles travelling side by side in the same direction" — Two lines of stationary motor cars facing in same direction — Third car driven in same direction alongside stationary cars — Road Traffic Act 1935 (No. 4352) — Road Traffic Regulations 1936, reg. 17.
Will — Construction — Gift to cousins — Gift to "legal representatives of any of such cousins as shall predecease me" — Cousins dead at date of will — Commonwealth estate duty — Whether covered by phrase "probate and legacy duty" — Estate Duty Assessment Act 1914-1928 (No. 22 of 1914 — No. 47 of 1928), sec. 35.
Contract of sale — Licensed premises — Transfer of licence — Obligation on purchaser to procure transfer on date fixed for possession.
Criminal Law — Punishment — Detention in reformatory prison — Power of Court of General Sessions in its appellate jurisdiction to order such detention — Habeas corpus — Release of prisoner illegally detained on return of order nisi for habeas corpus — Crimes Act 1928 (No. 3664), secs. 514, 515 — Justices Act 1928 (No. 3708), sec. 137 (7) — Rules of the Supreme Court 1916, Order LIII, r. 46.
Criminal Law — Bigamy — Mens rea — Honest belief on reasonable grounds former marriage void — Crimes Act 1928 (No. 3664), sec. 61.
Local Government — Water — Excess water — Charge — Council accepting control and management of waterworks — Whether entitled to withhold supply of water to rated property until payment of money owing for excess water supplied to previous occupier — Whether such money a charge on property — Local Government Act 1928 (No. 3720), secs. 197 (1)(iv), 385 (1), 651 (2).
Barrister and Solicitor — Admission to practise — Applicant a practitioner of another State — Reciprocity with Victoria — Victorian practitioners admitted conditionally in other State — Conditional order for admission — Rules of the Council of Legal Education of 29th December 1932, rr. 7, 8.
Workers' compensation — Contract by employer for execution of works for principal — Condition — Employer to be "responsible for any claims arising in connection with the works under any statute dealing with the question of the liability of employers in respect to injury sustained by employees" — Accident due to principal's negligence causing injury to employer's workmen — Claims under Workers' Compensation Act against employer — Payment by insurer — Employer's right to indemnity from principal — Workers' Compensation Act 1928 (No. 3806), sec. 16 (2).
Barrister and solicitor — Articles of clerkship — Service with the Deputy Crown Solicitor in Victoria for the Commonwealth he not being a barrister and solicitor of the Supreme Court of Victoria — Rules of the Council of Legal Education 1932-1936, r. 23.
Company — Liquidation — Secured creditor — Obligation to give up security — Creditor holding legal mortgage of land in which the company has an equitable interest — General lien charging certificates of title to come into possession of creditor — Whether a specific security — Companies Act 1928 (No. 3659), sec. 207 — Insolvency Act 1928 (No. 3705), secs. 194, 195 — Transfer of Land Act 1928 (No. 3791), sec. 179.
Licensing — Disposal — Meal permit — Extension to 11.30 p.m. for birthday dinner — Liquor supplied to guests, as part of function, at 9 p.m. — Meal not intended to be served until 10.30 p.m. — Licensing Act 1928 [No. 3717], sec. 43.
Company — Liquidation — Moneys held on trust by the company and not paid over — Interest thereon — At what rate — Right to interest actually received — Proof in winding up for difference between interest actually received and interest charged — Companies Act 1928 (No. 3659), sec. 283.
Divorce — "Maintenance order" — Order of High Court of England, made after decree absolute, for periodical payments by former husband for maintenance of former wife — Enforcement in Victoria — Maintenance Act 1928 (No. 3722), Part V.
Second-hand dealer — Sunday — "Deal in" second-hand wares — Meaning — Offer to sell — Contract not made — Second-hand Dealers Act 1928 [No. 3767], sec. 19.
Evidence — Information alleging defendant a common prostitute — Method of proof.
Will — Construction — Life interest — Inalienable personal provision for beneficiary — Payable "into her own hands" — Forfeiture clause — Beneficiary becoming lunatic patient — Whether forfeiture incurred — Lunacy Act 1928 (No. 3721).
Income Tax — Special tax — Unemployment relief tax — Reserve funds of company representing undivided profits — Issue of bonus shares to full amount of reserve funds — Whether "dividend interest profit or bonus credited paid or distributed" to shareholder — Liability of shareholder to special tax and unemployment relief tax — Income Tax Act 1935 (No. 4309), sec. 2 (1) (g) (ii) — Unemployment Relief Tax (Assessment) Act 1933 (No. 4171), sec. 4.
Divorce — Decree obtained by husband — Power to order monthly or weekly payments to wife — Marriage (Divorce) Act 1933 (No. 4210), sec. 5 (1).
Transport Regulation — Commercial goods vehicle — Licence to operate solely within twenty-five miles of Melbourne — Vehicle operating otherwise than in accordance with licence — Driver detected within twenty-five mile area while on journey extending outside area — Transport Regulation Act 1933 (No. 4198), secs. 5, 22 (a), 46.
Administration and Probate — Duties on deceased persons' estates — "Gift of personal property" — Money — Whether identifiable on donor's death — Expenditure by donor — Dutiability — Administration and Probate Act 1928 (No. 3632), sec. 173.