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Cases reported in this volume of the Victorian Reports
Health Act 1890 (No. 1098), ss. 234, 255 — Local Government Act 1891 (No. 1243), s. 111, sub-sec. 16 — Spreading nightsoil, offence of — Order of Governor in Council — Repeal of section.
Supreme Court Act 1890 (No. 1142), s. 85 — Foreign procedure — Service of writ out of jurisdiction — Breach of contract within jurisdiction — Residence of contracting parties — Mortgage, place of payment.
Practice — "Rules of the Supreme Court 1884" — Order LXIV., r. 13 — Proceedings after a year — Notice of intention to proceed — Taxation.
Recovery of land — Tenant — Vendor and purchaser — Certificate of title — Purchase-money unpaid — Mortgage — Transfer of Land Act 1890 (No. 1149), s. 74.
Debenture — Unincorporated society — Holder — Right to recover — Practice — Parties — Non-joinder — Abatement — "Rules of Supreme Court 1884" — Order XVI., r. 11.
Bill of sale — Mortgage — Collateral security — Defeasance or condition — Incorporation — Reference — Building society — Instruments Act 1890 (No. 1103), s. 146.
Arrest and bail — Practice — Writ of capias — Setting aside — Irregularity — Affidavit — Description of defendant — Order — Supreme Court Act 1890 (No. 1142), ss. 110, 113 — "Rules of Supreme Court 1884" — Order XXXVIII., r. 10 — Order LII., r. 2 — Order LIV., r. 1 — Order LXX., r. 1.
Trade Mark — Register — Rectification — Class — "Calculated to deceive" — "Gunpowder " — "Explosives" — Cartridge cases — Trade Marks Act 1890 No. 2 (No. 1183), s. 29.
Mining Company — Winding up — Meeting — Resolution — Evidence — Shareholders' intention — Latent ambiguity — Disposal of surplus assets — Companies Act 1890 (No. 1074), s. 303.
Justices Act 1890 (No. 1105), ss. 145, 148 — Order to review — Order nisi — Terms — Costs — Jurisdiction.
Trade Mark — Registration — Expunging from register — Proprietor — Foreign user — Trade Marks Act 1890 (2) (No. 1183), s. 17, 29 — Practice.
The Justices Act 1890 (No. 1105), s. 18 — Information by corporation — Signature of manager of corporation.
Evidence — Admissibility — Mining claim — Warden's decision — Register — Res inter alios acta — Mines Act 1890 (No. 1120), s. 70.
Solicitor and client — Conduct of litigation — Agreement to withdraw complaint in petty sessions — Power of solicitor to consent to withdrawal of complaint.
Divorce — Practice — Adultery with person unknown — Leave to proceed — Marriage Act 1890 (No. 1166), s. 78.
The Justices Act 1890 (No. 1105), ss. 75 and 76 — Complainant bringing defendant vexatiously to wrong court — Compensation to defendant.
Practice — Parties — Default of appearance — Filing statement of claim — Consent at trial — "Rules of Supreme Court 1884" — Order XIII., r. 12 — Order XXVII., r. 11 — Order XXXVI., r. 30.
Licensing Act 1890 (No. 1111), s. 148 — Offender — Class of person — Refusal to admit police — Licensed premises.
Banker and customer — Draft on foreign branch — Overdrawn account — Non-payment of draft — Liquidation — Refund — Fiduciary relation.
Justice — Warrant — Seal — Police Offences Act 1890 (No. 1126), ss. 57, 59 — Justices Act 1890 (No. 1105), ss. 24, 25 — Practice — Order nisi to review — Substituted service.
Local Government Act 1890 (No. 1112), ss. 428, 433 — Highway — Obstruction Encroachment — Removal — Municipal council — Discretion — Practice — Mandamus — Party.
Landlord and tenant — Lease — Condition — Breach — Waiver — Notice of forfeiture — Election — Recovery of land — Statute of Frauds — Memorandum — Agent authorized in writing — Solicitor — Instruments Act 1890 (No. 1105), ss. 208, 209 — Evidence — Letter without prejudice — Practice — Pleading — Amendment of reply.
Trustees — Liability — Breach of trust — Investment — Wilful default — Practice — Pleading — Burden of proof — Costs — Trusts Act 1896 (No. 1421), s. 26.
Administration and Probate Acts 1890 (No. 1060), s. 97, 1892 (No. 1261) — Probate duty — Value of estate — Antenuptial settlement — Debts due by testator — Annuity — Furniture — Capital value of annuity.
Sale of Goods Act 1896 (No. 1422), s. 19 — Implied conditions as to quality or fitness — Cattle salesmen — Sale of cattle.
Administration and Probate Act 1890 (No. 1060), s. 17 — Administration — Surety — Bond — Assignment — Discretion of Court.
Injury to property, action for — Circular issued injuring plaintiff's property — Misrepresentation of judgment of Court — Evidence — Right of jury to construe circular.
Criminal law — Manslaughter — Negligence — Drunken woman overlying child.
Practice — "Rules of the Supreme Court 1884" — Order LXV., r. 27 (51) — Taxation — Clerk's fees — Practitioner acting as both barrister and attorney.
Practice — "Rules of the Supreme Court 1884" — Order XLII., r. 32 — Examination of judgment debtor — Debtor in representative capacity as executrix.
Health Act 1890 (No. 1098), Part III., s. 35 — By-law — Registration — Purveyor of milk — Place where trade carried on.
Factories and Shops Act 1896 (No. 1445), s. 15 — Public statutory duty — Breach — Action by person injured — Work and labour done.
Insolvency Act 1890 (No. 1102), ss. 31, 37 (v.) — Compulsory sequestration — Act of insolvency — Order nisi — "Want of form or omission" — Amendment.
Practice — Attachment of debt — Legacy in hands of executors — Issue — "Rules of Supreme Court1884" — Order XLV., rr. 1, 4.
Marine Act 1890 (No. 1165), ss. 3, 183 (2) (3) — Court of Marine Inquiry — Jurisdiction — Master — Misconduct — Pilotage exemption certificate — Suspension.
Taxation of costs — Party and party — Service of writ — "Rules of Supreme Court 1884" — Order LXV., r. 8, r. 27 (46) (47), Appendix N — Correspondent's charges — Trial — Number of counsel — Taxing Master's discretion.
New trial — Damages excessive — Inconsistent findings of jury — Action for false imprisonment and malicious prosecution.
Will — Validity of — Undue influence — Testamentary incapacity — Delusion — Caveator unsuccessful — Costs.
Mines Act 1890 (No. 1120), ss. 216, 219, 227, Schedules 22, 23 — Warden — Jurisdiction — Amendment — Irregularity — Form — Informality.
Health Act 1890 (No. 1098), ss. 234, 255 — Local Government Act 1891 (No. 1243), s. 111, sub-sec. 16 — Spreading nightsoil, offence of — Order of Governor in Council — Repeal of section.
Practice — Probate — Appeal — Security for costs — Poverty of appellant — Jurisdiction — "Rules of Supreme Court 1884" — Order XXXIX., r. 1 — Order LXVIII., r. 1.
The Land Act 1890 (No. 1106), s. 123 — The Local Government Act 1890 (No. 1112), s. 246 — Rates — Unoccupied Crown land — Licensee, liability of for rates.
The Income Tax Act 1895 (No. 1374), ss. 27, 28 — The Income Tax Act 1896 (No. 1467), s. 17 — Case stated by the Commissioner of Taxes — Appeal, right of — Costs.
The Companies Act 1890 (No. 1074), ss. 190, 191, 193, 307, 309 — No Liability Mining Company — Sale of property — Ultra vires — Winding-up.
Employers and Employs Act 1890 (No. 1087), ss. 38 (1), 39 (1) — Action for negligence — Fellow-serrant — "Plant," meaning of — Defect in condition of plant — Person entrusted with superintendence — Evidence — Nonsuit — Amendment on appeal — "Rules of County Court," r. 257.
Criminal law — Evidence — Assault — Prior acts of assault, admissibility of evidence of.
The Insolvency Act 1890 (No. 1102), ss. 37, 39, 47 — Service of order nisi — Enlargement of order — Jurisdiction of judge — Supreme Court Act 1899 (No. 1102), s. 55.
Justice of the peace — Bias — Interest disqualifying.
Bill of sale — Security — Possession by creditor — Registration — Instruments Act 1890 (No. 1103), ss. 132, 133.
Income Tax — Practice — Action by commissioner — Defence of non-liability — Assessment — Objection — Foreign life assurance society — Reinsurances — Exemption — Defence — Carrying on business for gain — Profit from ultra vires acts of directors — Income Tax Act 1895 (No. 1374), ss. 7 (1) e, 14, 23, 24, 31, 32 (3), 39, 53, 56.
Solicitor and client — Remuneration of solicitor — Agreement — Criminal proceedings — Taxation of bill of costs — Supreme Court Act 1890 (No. 1142), ss. 262, 270 — Crimes Act 1890 (No. 1079), s. 492.
Justices Act 1890 (No. 1105), ss. 59 (3), 79, 80 — Set off — Claim for illegal detention — Debt.
Friendly Societies Acts 1890 (No. 1094), s. 20; 1891 (No. 1232), s. 12 — Friendly society — Dispute — Member — Suspension — Expulsion — Jurisdiction of Court.
Marriage Act 1890 (No. 1166), ss. 42, 43, 96, 97 — Practice — Children — Maintenance — Decree absolute for divorce — Children in custody of mother — Jurisdiction of justices to make order.
Companies Act 1890 (No. 1074), ss. 383 and 384 — Company administrator — Investment on deposit receipt in bank — Breach of trust — Trusts Act 1896 (No. 1421), s. 27 (1) — Breach of trust instigated or concurred in by one beneficiary — Indemnity of trustee.
Income Tax — Assessment — Income for preceding year — Deposit receipt — 58 Vict. (No. 1374), ss. 5, 14 (2) (3).
Justice of the peace — Bias — Suspicion of — Disqualification.
Police Offences Act 1890 (No. 1126), s. 18 (vii.) — Wilful destruction of property — Tenant — Caretaker.
Justices Act 1890 (No. 1105), ss. 88, 105 — Police Offences Act 1890 (No. 1126), s. 26 — Imprisonment in default of finding sureties — Time.
Practice — Attachment of debt — Petty sessions — Distress warrant — Sale — Surplus — Police constable — Justices Act 1890 (No. 1105), ss. 25 (4), 103 (8), Schedule II., Form XIII.
Practice — Appeal — Order made in Chambers — Time — Notice — "Rules of the Supreme Court 1884" — Order LIV., r. 24.
Imprisonment of Fraudulent Debtors Act 1890 (No. 1100), ss. 22, 23 — Justices Act 1890 (No. 1105), Rules 37, 38 — Fraud summons — Service — Affidavit — Conduct money — Practice.
Married woman — Savings — Purchase of realty — Rent — Furniture — Gift — Married Women's Property Act 1890 (No. 1116), ss. 9, 10, 13.
The Pounds Act 1890 (No. 1129), s. 16 — "Nearest accessible pound."
Practice — Divorce — Adultery — Trial by jury — Damages — Discontinuance — Marriage Act 1890 (No. 1166), s. 94 — Rules 1885, r. 50.
Mines Act 1890 (No. 1120), ss. 14, 32 — Miner's right — Expiry — Residence area — By-law — Re-marking — Re-registration.
Practice — Lunacy — Petition for inquiry — Variation — Notice — Lunacy Act 1890 (No. 1113), s. 134.
Practice — Appeal to Privy Council — Leave refused — Appeal to Full Court — Supreme Court Act 1890 (No. 1142), ss. 10, 37, 231 — Order in Council of 9th June 1860 — "The Supreme Court" — Appealable amount.
Practice — "Rules of the Supreme Court 1884" — Order XIII., r. 3 — Order XLI., r. 9 — Judgment by consent — Entry of judgment for default of appearance.
Practice — Power of attorney — Company — Revocation — Effect of non-registration — Service of writ upon attorney — Knowledge of revocation — Personal and substituted service — Instruments Act 1890 (No. 1103), ss. 187, 188, 194 — "Rules of Supreme Court 1884" — Order IX., r. 8.
Contract — Consideration — Promise to pay after breach with knowledge of breach.
Will — Execution — Validity — Printed form — Signature — Wills Act 1890 (No. 1159),
Settlement — Voluntary — Consideration — Evidence — Insolvency Act (No. 1102), s. 72.
Practice — Summons for final judgment — Defence as to part of claim admitted — Sufficiency of plaintiff's affidavit — Amendment — "Rules of Supreme Court 1884" — Order XIV., r. 1.
Health Act 1890 (No. 1098), ss. 234, 255 — Local Government Act 1891 (No. 1243), s. 111, sub-sec. 16 — Spreading nightsoil, offence of — Order of Governor in Council — Repeal of section.
Justices Act 1890 (No. 1105), ss. 59 (3), 75 — Complaint for detention of goods — Limited company — Schedule, Form XXXIII.
Practice — Parties — Representative order — Plaintiff — "Rules of the Supreme Court 1884" — Order XVI., r. 9.
Dentist — Registration — "Any dental student" — Qualification — Medical Act 1890 (No. 1118), s. 55 — Dentists Act 1887 (No. 960), s. 19.
Public Service (Civil Service) Act (No. 160), s. 1 — Prosecuting barristers — Crown Prosecutor — Right to superannuation allowance.
Vermin Destruction Act 1890 (No. 1153), ss. 38, 48, 49, 50, 51, 53, and 55 — Wire netting — Owner for time being, liability of — Petition — Verification of petition — Interest.
Instruments Act 1890 (No. 1103), ss. 92, 98 — Common Law Procedure Statute 1865 (No. 274), s. 92 — Action under Instruments Act 1890 — Substituted service — Leave to proceed.
Practice — Parties — Joinder of plaintiff — Want of authority — Striking out — Affidavit — Irrelevant — Scandalous — "Rules of the Supreme Court 1884" — Order XVI., r. 11 — Order XXXVII., r. 11.
Crimes Act 1890 (No. 1,079), s. 444 — Crimes Act 1890 Amendment Act 1896 (No. 1478), s. 5 — Embezzlement — General deficiency — Time for objecting to presentment.
Arbitration — Railway contract — Action on award — Finding of arbitrators, conclusive in absence of fraud — Penalties, deduction of — Costs — Interest.
Arbitration — Bulk sum award — Non-referable items — Invalidity of award.
Income tax — Assessment — Year for which the tax is payable — Deceased person — Executor — Year of death — 58 Vict., No. 1374, s. 5.
The Companies Act 1896 (No. 1482), s. 141 — Appointment of auditors — Practice.
Income Tax — Assessment — Board and lodging — 58 Vict., No. 1374, s. 9 (11).
Contract — Parol — Consideration — Transfer of forged mortgage — Recovery of money paid — Action by transferee.
Mines Act 1890 (No. 1120), ss. 5, 43 — Residence area — Quartz tailings — Abandonment — Practice — Parties — Action for conversion of tailings — Crown — Registration — Evidence — Admissibility.
Contract — Municipality — Contractor — Assignment — Registration — Business — Employers and Employs Act 1890 (No. 1087), ss. 28-36 — Book Debts Act 1896 (No. 1424), ss. 2 (a), 3.
Supreme Court Act 1890 (No. 1142), s. 37 — Supreme Court — Single Judge sitting as Court, right of appeal from — Appeal to Full Court — Mines Act 1890 (No. 1120), ss. 208, 209, 213, and 265 — Special case for opinion of Supreme Court — Right of appeal from opinion — "Rules of Supreme Court 1884" — Order LXX., r. 3 — Irregularity — Motion to strike out appeal, grounds of motion not stated.
Supreme Court Act 1890 (No. 1142), s. 218 — Taxation of bill of costs — Certificate of taxing officer — Judgment upon certificate — Appointment for taxation — Order to refer bill for taxation.
The Legal Profession Practice Act 1891 (No. 1216), s. 6 — Restriction as to costs — Shorthand writer's costs — Solicitor instructing his partner — Brief and proof, costs of — Appointment of shorthand writer — Evidence Act 1890 (No. 2) (No. 1201), s. 5.
Mines Act 1890 (No. 1120), ss. 308, 327 — Mining on private property — Compensation — Land with buildings and mining shafts — Assessment of purchase-money — Mining machinery — Application for mining lease — Mining lease — Mining shafts, value of, how assessed.
The Companies Act 1896 (No. 1482), s. 153 — Claim for interest accruing after date of liquidation — Interest under covenant in mortgage.
Railways Act 1890 (No. 1135), s. 105 — By-law, validity of — Ultra vires — Admission of public — Removing passengers or luggage.
Practice — "Rules of the Supreme Court 1884" — Order III., r. 6 — Special Indorsement — Order XIV., r. 1 — Application for final judgment — Costs of arbitration, action to recover — Submission and award made rule of Court.
Divorce — Costs awarded to wife — Taxation of wife's costs — Costs reasonably incurred — Review of taxation.
Supreme Court Act 1890 (No. 1142), s. 63 (6) — Absolute Assignment — Right of assignor to sue — Book Debts Act 1896 (No. 1424), s. 2 — Book debts — Moneys arising out of contract, assignment of — Non-registration of assignment — "Rules of Supreme Court 1884" — Order LXV., r. 12 — Costs.
Advancement — Purchase of land by father in son's name — Rebuttal of presumption of advancement — Reservation of interest in land by purchaser.
Local Government Act 1890 (No. 1112), ss. 284, 285 — Local Government Act 1891 (No. 1243), s. 60 — Appeal against rates — Hearing of appeal — Adjournment — Power of Judge to adjourn — Rejection of evidence — Prohibition.
Practice Probate — Administration and Probate Act 1890 (No. 1060), s. 40 — English probate — Sealing exemplification — Power of attorney, sufficiency of.
Master and servant — Trespass of servant — Liability of master — Scope of employment — Drover — Travelling cattle — Practice — Res judicata — Certificate of dismissal — Justices Act 1890 (No. 1105), s. 77 (17).
Principal and surety — Default — Overdrawn account with bank — Death of principal debtor — Liability of guarantor — Statute of Limitations — 21 Jac. 1, cap. 16.
Husband and wife — Coercion of wife — Evidence — Justices — Hearing similar cases — Hearing both cases before adjudication — Adjudication.
Charging order — Shares in mining company — Registered owner — Trust — Supreme Court Act 1890 (No. 1142), ss. 62 (1), 185 — Mines Act 1890 (No. 1120).
Justices Act 1890 (No. 1105), s. 59 — Instruments Act 1896 (No. 1423), s. 7 — Promissory note, summons on — Concurrent remedies.
Miner's right — Lapse — Residence area — Title — Registration — Mines Act 1890 (No. 1120), s. 32 — Special case — Reference — Costs.
Poisons Act 1890 (No. 1125), ss. 7, 14 — Sale of poison — Patent or proprietary medicine — Practice — Order to review — Informant — "Person aggrieved" — Justices' Act 1890 (No. 1105), s. 141.
Practice — Order to review — Indictable offence — Justice — Warrant — "Order" — Holding to bail — Justices Act 1890 (No. 1105), ss. 45, 141, 146.
Practice — Taxation of costs — Party and party — Counsel — "Substantial attendance in Court" — Review of taxation — Taxing officer — Discretion — Legal Profession Practice Act 1891 (No. 1216), s. 8, subs-s. (1) (2).
Practice — Memorandum of close of pleadings filed too soon — Setting aside — Waiver — Irregularity — "Step in proceedings" — Order for discovery — "Rules of Supreme Court 1884" — Order XXIII., r. 5 * — Order LXX., r. 2.
Practice — Appeal to Privy Council — Order in Council, 9th June 1860 — Final order for leave to appeal, time within which it should be obtained — Abandonment of appeal — Regul Generales, 15th August 1876 — Rr. 14, 15, and 16, effect of — Reference of summons to Full Court — Power of Judge to refer.
Practice — Attachment of debt — Garnishee — Order nisi — Return of order — Justices Act 1890 (No. 1105), Part V.
Water trust — Water rates — Recovery — Jurisdiction — Water Act 1890 (No. 1156), Part III., ss. 186, 341, 350, 483.
Health Act 1890 (No. 1098), ss. 234, 255 — Local Government Act 1891 (No. 1243), s. 111, sub-sec. 16 — Spreading nightsoil, offence of — Order of Governor in Council — Repeal of section.
Gaming and wagering — Betting in street — Evidence — Street Betting Suppression Act (No. 1436), s. 2.
Will — Construction — Trust for conversion — Power of postponement — Implied powers of trustees to mortgage station property.
Income tax — Assessment — Company in liquidation — Shareholder — Calls — Deduction — 58 Vict. (No. 1374), s. 9, sub-s. 7 — 60 Vict. (No. 1467).
Income Tax — Assessment — Executor — Year after testator's death — Income Tax Act, 58 Vict. (No. 1374), ss. 5, 14 (3).
Justices — Bias — Suspicion of bias — Disqualification — Evidence — Hostile demeanour.
The Factories and Shops Acts 1890 (No. 1091), s. 47; 1893 (No. 1333), s. 6; 1896 (No. 1445), ss. 34, 38, 48 — Shops — Closing — Half-holiday — Regulation — Validity — Certificate of municipal clerk — Effect of — Ultra vires — Petition — Persons "substantially interested and affected" — "Afternoon."
Practice — Supreme Court — Admission of barristers and solicitors — "Rules of Supreme Court," 26th November 1892, r. 5, Schedules A and B — Certificate — Omission of date.
Practice — "Rules of the Supreme Court, 1887-1892" — Rules for the admission of barristers and solicitors, r. 18 — Defect in affidavit of due execution of articles.
Attachment of debt — "Debt due or accruing" — Intestate — Creditor — Curator of estates of deceased persons — Receiver — Costs — Administration and Probate Act 1890 (No. 1060), Part IV. — Justices Act 1890 (No. 1104), Part V.
Practice Probate — Administration — Prior grant to curator — Creditor — Administration and Probate Act 1890 (No. 1060), s. 83.
The Administration and Probate Act 1890 (No. 1060), s. 97, sub-s. 1 — Statement of assets and liabilities — Debts, deduction of — Victorian debts — Debtor domiciled outside Victoria.
Practice — Appeal to Privy Council from decision of primary Judge — Supreme Court Act 1890 (No 1142), ss. 37 and 231.
"Rules of the Supreme Court" 1884 — Order XXXI., r. 14 — Practice — Discovery — Production of documents before delivery of statement of claim.
Criminal law — Refusal of justices to adjourn case — Discretion — Order to review.
Health Act 1890 (No. 1098), ss. 204, 214 — Vaccination — Prosecution for non-vaccination — Notice, form of — Parent, notice must be addressed to — Schedules 15, 16, and 18 — Proof for prosecution, what is required for — Justices Act 1890 (No. 1105), s. 141 — Order nisi to review — "Person aggrieved," meaning of — Acquittal of defendant, whether subject to review.
Trustees — Supreme Court — Practice — Order XIII., r. 12 — Co-defendants — Default of appearance by one of several defendants — Statement of claim not filed against defendant not appearing — Objection by defendant appearing — Trustee companies — Joint tenants — Power of company to act jointly with individuals as trustee or as executor — Probate to company and individual — Consent of Court to appointment of trustees — Act No. 979, ss. 1, 7, and 10.