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28 VLR(108 results)

Cases reported in this volume of the Victorian Reports

TUCKER v. MULLIGAN28 VLR 1

A’BECKETT, J.·25 Mar 1902·Practice Court

The Companies Act 1890 (No. 1074), s. 36Rectification of register — Registration of transfer — Unnecessary delay — Shares, transfer of.

NEWHAM v. THE DUCHESS OF CORNWALL GOLD MINING COMPANY NO LIABILITY28 VLR 8

HODGES, J.·19 Feb 1902·Supreme Court of Victoria

Mines Act 1897 (No. 1514), ss. 73, 81, 99Mining on private property — Application for gold mining lease — Authority to enter and mark out — Provision for benefit of owner or occupier — Waiver by consent — Pendency of application — "Marking out" — Irregularity in marking out — Discretion of Governor in Council to grant lease notwithstanding non-compliance with regulations — Jurisdiction of Court to interfere with Governor in Council's discretion.

THE LAND MORTGAGE BANK OF VICTORIA LTD. v. McCONNELL28 VLR 19

WILLIAMS, A’BECKETT, and HODGES, JJ.·6 May 1902·Supreme Court of Victoria (Full Court)

CompanyCalls, payment by instalment — Forfeiture of shares — Call, when "owing" — "Instalment" owing at time of forfeiture.

DAVEY v. WATT28 VLR 24

HOLROYD, J.·29 Apr 1902·Supreme Court of Victoria

PracticeCo-plaintiffs — Right of one of several co-plaintiffs to change solicitor — Solicitor, change of.

BANK OF AUSTRALASIA LIMITED v. WATKINSON28 VLR 26

MADDEN, C.J.·23 Apr 1902·Supreme Court of Victoria

Practice"Rules of the Supreme Court 1900" — Order XVIII.A — Writ indorsed that action is to proceed without pleadings — Order XXX., r. 1 (d) — Summons for directions — Instruments Act 1890 (No. 1103) — Writ issued under Instruments Act 1890.

THE STEAMSHIP BOVERIC CO. LIMITED v. HOWARD SMITH AND SONS PROPRIETARY LIMITED28 VLR 29

HODGES, J., HOLROYD, J., WILLIAMS, J.·18 Apr 1902·Supreme Court of Victoria (Full Court)

ShippingCharter-party — Construction — Owner domiciled in Scotland — Charterer domiciled in Victoria — Ship on Glasgow register — Payment of hire in Glasgow — Option of purchase by charterer — Ship subject to mortgage — Transfer to Melbourne register for special purposes — Place where notice of option to be given — Place of payment of purchase money — Place of execution of documents of transfer — Implied terms in contracts — Measure of damages for delay in paying purchase money for ship — Interest on purchase money as measure of damages — Rate of interest — "Classed 100 A1, in good order and condition."

SMITH v. THE VICTORIAN RAILWAYS COMMISSIONER28 VLR 44

WILLIAMS, HOLROYD, and HODGES, JJ.·10 Mar 1902·Supreme Court of Victoria (Full Court)

NegligenceContributory negligence — Train longer than platform — Duty of railway company or commissioner to provide reasonable facilities for passengers to enter and descend from railway carriages.

DAVIS v. FIRMAN28 VLR 53

HODGES, J.·4 Apr 1902·Supreme Court of Victoria

PartnershipDissolution of partnership — Contracts uncompleted at dissolution of firm — Rights and liabilities of continuing partners — Rights and liabilities of party to a contract with firm uncompleted at dissolution — Continuance of firm for purpose of completing contracts — Novation of contract — Partnership Act 1891 (No. 1222), s. 42 (1).

REX v. O’CONNOR28 VLR 62

MADDEN, C.J., WILLIAMS and HODGES, JJ.·7 Apr 1902·Supreme Court of Victoria (Full Court)

Gaols Act 1890 (No. 1096), ss. 34, 53Escape from gaol or custody — Felony — Offences under the Act punishable in a summary way.

IN RE TIMMS’S SETTLEMENT28 VLR 65

A’BECKETT, J.·26 Mar 1902·Supreme Court of Victoria

Stamps Acts, 1890 (No. 1140), s. 71; 1892 (No. 1274), s. 29, Schedule: Division VIII.Settlement or gift, deed of — Settled land subject to mortgage — Settled land subject to vendor's lien for unpaid purchase money — "Mortgage debt or certain charge" — Obligation by settlor or trustees to pay mortgage money or unpaid purchase money, effect of — Stamp duty.

BLOOMFIELD v. THE DUNLOP TYRE COMPANY LIMITED28 VLR 72

MADDEN, C.J.·8 May 1902·Supreme Court of Victoria

CostsSpecial scale — "Rules of the Supreme Court 1900" — Order LXV., r. 29 — Appendix N. — Discretion of Judge to allow costs on ordinary scale.

JOHNSTON v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES28 VLR 75

HODGES, J.·28 May 1902·Supreme Court of Victoria

Practice"Rules of the Supreme Court 1900" — Order XXX. — Summons for directions — Order for mutual interrogatories — Service of order for interrogatories — Indorsement of order for interrogatories — "Rules of the Supreme. Court 1884" — Order XXXI. — Order XLI., r. 5.

THE MENTONE RACING CLUB v. THE VICTORIAN RAILWAYS COMMISSIONER28 VLR 77

WILLIAMS, A’BECKETT, and HODGES, JJ.·7 May 1902·Supreme Court of Victoria (Full Court)

DefamationTrade libel — Slander of title — False statement printed and published — Malice — False statement negligently made.

STEPHENS v. ROBERT REID AND COMPANY LIMITED28 VLR 82

HODGES, J.·30 May 1902·Supreme Court of Victoria

CustomsCommonwealth Customs Act 1901 (No. 6), s. 234 (e) — Untrue statement in a document produced to Customs officer — Criminal offence under Act of Parliament — Interpretation of Statutes — Mens rea, when proof necessary — Revenue statute — Act of servant within scope of employment — Criminal liability of owner or employer — Criminal liability of corporation — Commonwealth Acts Interpretation Act 1901 (No. 2), ss. 22, 24.

STEPHENS v. ALCOCK28 VLR 93

HODGES, J.·30 May 1902·Supreme Court of Victoria

CustomsCommonwealth Customs Act 1901 (No. 6), ss. 234 (e), 236 — Untrue statement in a document produced to customs officer — Description of goods — State of origin of goods — Article made in Victoria partly of imported goods.

TOLLEY AND CO. LIMITED v. BYRNE28 VLR 95

A’BECKETT, J.·27 June 1902·Supreme Court of Victoria

Transfer of Land Act 1890 (No. 1149), ss. 81, 213Deposit of title deeds as security — Rights of equitable mortgagee — "Interest in land" — Issue of "special" certificate obtained by fraud — Subsequent sale to bon fide purchaser for value — Loss sustained by equitable mortgagee — "Loss or damage" — Damages caused by exercise of Commissioner's powers, when recoverable — Damages out of assurance fund — Statutory declaration — Before whom to be sworn.

IN RE THE INCOME TAX ACTS28 VLR 102

WILLIAMS, A’BECKETT, and HODGES, JJ.·8 May 1902·Supreme Court of Victoria (Full Court)

Income Tax Act 1895 (No. 1374)Administrator carrying on business of intestate — Contingent liabilities — Income not distributed — Liability of to income tax — Form of assessment.

IN RE HENDY28 VLR 105

HODGES, J.·13 May 1902·Supreme Court of Victoria

Local Government Act 1890 (No. 1112), ss. 165, 166Municipal council election — Ouster from office — Validity of election — Disqualification of objector — Conduct of objector — Acquiescence in proceedings objected to by nominating a candidate and by voting — Discretion of the Court in an application to oust.

IN RE EGGLESTON28 VLR 111

A’BECKETT, J.·13 June 1902·Supreme Court of Victoria

Bill of sale given by corporationRegistration — Instruments Act 1890 (No. 1103), Part VI. — Companies Act 1896 (No. 1482); ss. 53, 54 — Costs, taxation of.

ELLISON v. HEWISON28 VLR 115

WILLIAMS, J.·12 June 1902·Supreme Court of Victoria

CostsTaxation of costs — Mortgagee's costs — Solicitor's attendance at sale.

WARNOCK v. McCULLOCH28 VLR 117

MADDEN, C.J., WILLIAMS, and A’BECKETT, JJ.·10 June 1902·Supreme Court of Victoria (Full Court)

Appeal from nonsuitGrant of new trial — Costs of former trial.

IN RE STRACHAN28 VLR 118

MADDEN, C.J., A’BECKETT, and WILLIAMS, JJ.·4 June 1902·Supreme Court of Victoria (Full Court)

Stamps Act 1890 (No. 1140)Stamps Act 1892 (No. 1274) — Schedule, Division VIII. — "Settlement."

IN RE HEATHCOTE28 VLR 126

A’BECKETT, J.·18 June 1902·Supreme Court of Victoria

Insolvency Act 1890 (No. 1102), ss. 37 (viii.), 45Order of petty sessions for payment of money — Certificate thereof filed in Supreme Court — Justices Act 1890 (No. 1105), s. 115 — Execution issued in Supreme Court — Return of writ unsatisfied — Act of Insolvency — Petition for sequestration — Mis-statement in petition and affidavits — Order nisi for sequestration — Omission to file objections.

HODGSON v. BOOTH28 VLR 130

MADDEN, C.J., HODGES, and A’BECKETT, JJ.·30 June 1902·Supreme Court of Victoria (Full Court)

PracticeAttachment — Contempt — Judgment debt — Non-payment of money — Compromise embodied in consent order — Interference with terms of original order — Alteration of position of parties — Reservation of plaintiffs' rights of enforcement of original order — Default under consent order — Attachment for disobedience of original order — Affidavit in support of application for writ of attachment — Application granted subject to further affidavit.

VINNICOMBE v. MacGREGOR28 VLR 144

MADDEN, C.J.·14 July 1902·Supreme Court of Victoria

Water"Watercourse," definition of — Natural flow of surface water — Servitude of lower land — Obstruction of flow by owner of lower land — Leave and license — Revocation of — Acquiescence — Equitable owner in fee, rights of — Licensee of Crown lands, power of, to create an easement.

IN THE MATTER OF THE INCOME TAX ACTS No. 228 VLR 203

WILLIAMS, A’BECKETT, and HODGES, JJ.·11 Aug 1902·Supreme Court of Victoria (Full Court)

Income Tax Act 1895 (No. 1347), s. 9 (1) (14)Member or shareholder of company — Company formed to carry out one transaction — Capital subscribed by shareholder — "Outgoing" — Deduction from gross income — Completion of transaction — Distribution amongst shareholders of moneys remaining after payment of all liabilities — "Dividends or profits or part of capital credited to member or shareholder."

THE PRESIDENT, COUNCILLORS, AND RATEPAYERS OF THE SHIRE OF DIMBOOLA v. YARRICK28 VLR 210

MADDEN, C.J., WILLIAMS, and HODGES, JJ.·7 Aug 1902·Supreme Court of Victoria (Full Court)

VerminVermin Destruction Act 1890 (No. 1153), ss. 49, 53, 55 — Persons liable for materials supplied — Conclusiveness of Order in Council under the Act as to statements contained in it — "Owner for the time being" — Interest on instalments — Charge on the land.

IN RE MacDONALD28 VLR 222

MADDEN, C.J., HOOD, WILLIAMS, HOLROYD, and A’BECKETT, JJ.·3 May 1902·Supreme Court of Victoria (Full Court)

Articled clerkLeave to engage in other business during articles — "Rules of the Supreme Court for admission of Barristers and Solicitors," 26th November 1892, r. 18 — English Practice — 23 & 24 Vict., c. 127, s. 10-37 & 38 Vict., c. 68, s. 4 — Legal Profession Practice Act 1891 (No. 1216), s. 11 (3) — Legal Profession Practice Act 1895 (No. 1387), s. 5.

McMANAMNY v. RAHILLY28 VLR 230

WILLIAMS, A’BECKETT, and HODGES, JJ.·1 Aug 1902·Supreme Court of Victoria (Full Court)

Stamps Act 1890 (No. 1140), s. 92: Third Schedule, Division II.Exemption from stamp duty — Registered building society — Receipt for rent — Authorized transaction of building society.

IN RE STEWART28 VLR 234

MADDEN, C.J.·27 Aug 1902·Supreme Court of Victoria

ProbatePractice — Proceedings in probate jurisdiction — Cross-examination of deponent to affidavits — Jurisdiction of Court to order.

TUCKER v. MULLIGAN28 VLR 237

A’BECKETT, J.·25 Mar 1902·Practice Court

The Companies Act 1890 (No. 1074), s. 36Rectification of register — Registration of transfer — Unnecessary delay — Shares, transfer of.

TUCKER v. MULLIGAN28 VLR 238

A’BECKETT, J.·25 Mar 1902·Practice Court

The Companies Act 1890 (No. 1074), s. 36Rectification of register — Registration of transfer — Unnecessary delay — Shares, transfer of.

THE ATTORNEY-GENERAL v. THE PRESIDENT, COUNCILLORS, AND RATEPAYERS OF THE SHIRE OF BAIRNSDALE28 VLR 239

MADDEN, C.J., WILLIAMS, and HODGES, JJ.·5 Aug 1902·Supreme Court of Victoria (Full Court)

The Local Government Act 1890 (No. 1112)Municipal council — Corporate body.

STEPHENS v. GOLLIN AND CO. PROPRIETARY LIMITED28 VLR 242

HODGES, J.·15 Oct 1902·Practice Court

Customs Act 1901 (Commonwealth) (No. 6), ss. 50, 52, 54, 236Prohibited import — Tea not complying with prescribed standard — Analysis of samples — Notice to owner.

CHARTERS v. THE COSMOPOLITAN LAND BANKING COMPANY LIMITED28 VLR 251

MADDEN, C.J.·10 Feb 1902·Practice Court

ForeclosureEquitable mortgage of land under the Transfer of Land Act.

NOONAN v. WELLS28 VLR 253

HODGES, J.·6 Oct 1902·Supreme Court of Victoria

PracticeGarnishee order — Jurisdiction of Judge to allow costs to garnishee — Costs.

FOX v. TRENWITH28 VLR 254

HOLROYD, J.·9 Oct 1902·Supreme Court of Victoria

PracticeInterrogatories, approval of by Judge.

IN RE RITCHIE28 VLR 255

HOLROYD, J.·30 Sept 1902·Supreme Court of Victoria

Trustee and cestui que trustRetirement of number of trustees — Appointment of trustee company in place of number of trustees — Trusts Act 1896 (No. 1421), s. 4 — Discharge of trustees.

ELLIOTT v. JOHNSTONE28 VLR 259

A’BECKETT, WILLIAMS, and HODGES, JJ., MADDEN, C.J.·6 Aug 1902·Supreme Court of Victoria (Full Court)

Condition precedentContribution to fund — Application to be made beneficiary of fund — Decision of committee of management — Right to enforce claim at law.

THE NATIONAL TRUSTEES EXECUTORS AND AGENCY CO. OF AUSTRALIA v. McGUIGAN28 VLR 273

A’BECKETT, J.·18 Dec 1900·Supreme Court of Victoria

WillRestriction on sale of property — "Until the expiration of the term of lease," meaning of.

PALMER v. BOURKE28 VLR 275

HOLROYD, J.·21 July 1902·Supreme Court of Victoria

Supreme Court Act (No. 1142), s. 241Act 19 Vict. (No. 19), s. 176 — Sale by sheriff — Omission to advertise in paper circulating in the neighbourhood — Purchasers at sale, how affected by such omission.

FALLSHAW BROTHERS v. RYAN28 VLR 279

MADDEN, C.J.·24 Aug 1902·Practice Court

Justices Act 1890 (No. 1105), s. 38Affidavit made before justice of any part of His Majesty's dominions — Evidence — Service and Execution of Process Act 1901 (Commonwealth), No. 11, ss. 3, 5, 11, and 17 — Writ of summons — Court of record — Leave to proceed — State Laws and Records Recognition Act 1901 (Commonwealth), No. 5, ss. 6 and 12 — Government Gazette of any State.

STAIT v. COLENSO28 VLR 286

WILLIAMS, J.·11 June 1902·Supreme Court of Victoria

Justices Act 1890 (No. 1105), s. 187Defective information — Amendment — Police Offences Act 1890 (No. 1125), s. 17, sub-s. 1 — Police Offences Act 1891 (No. 1241), s. 5, sub-s. 1 (c) — Remission of case to justices for re-hearing.

IN RE MATHESON28 VLR 289

MADDEN, C.J., WILLIAMS and HODGES, JJ.·7 Apr 1902·Supreme Court of Victoria (Full Court)

Lunacy Act 1890 (No. 1113), s. 138Moneys collected by or coming under control of committee — Change of investment of corpus — Percentage payable to Master in Lunacy.

BAIRD v. THE KING28 VLR 291

WILLIAMS, HOLROYD, and A’BECKETT, JJ., MADDEN, C.J.·10 Sept 1902·Supreme Court of Victoria (Full Court)

Sale of goodsContract — Delivery not to be deemed to be made until approval — Carrier named by consignee — Goods lost through negligence of carrier before approval — Default of agent of the Crown — Sale on approval or return — Lapse of reasonable time — Crown Remedies and Liability Act 1890 (No. 1080).

GUNNER v. HELDING28 VLR 303

MADDEN, C.J., WILLIAMS, HOLROYD, A’BECKETT, and HODGES, JJ.·5 Sept 1902·Supreme Court of Victoria (Full Court)

Local Government Act 1874 (No. 506), ss. 213, 225, 246Local Government Act 1890 (No. 1112), ss. 191, 203, 224 — By-law — Ultra vires — Unreasonable — Mode of impeaching validity of by-law — "Shall have the force of law" — Right of person prosecuted to set up invalidity of by-law — Jurisdiction of court of petty sessions to determine validity of by-law — "Spreading" of nightsoil — Manuring of land — "Suppressing nuisances" — "Purposes" of Thirteenth Schedule to the Acts No. 506 and No. 1112 — Interference by Court with discretion of framers of by-law.

UNGER v. THE PRESIDENT, COUNCIL, AND RATEPAYERS OF THE SHIRE OF ELTHAM28 VLR 322

MADDEN C.J., HOLROYD and HODGES, JJ.·11 Nov 1902·Supreme Court of Victoria (Full Court)

Local GovernmentHighway — Nuisance — Drain made by municipality across highway — Culvert made by municipality over drain — Non-repair of culvert — Collapse of culvert — Damage — Liability of municipality in respect of non-repair of road.

McNAMARA v. MILLER28 VLR 327

HODGES, J.·13 Aug 1902·Supreme Court of Victoria

Service and Execution of Process Act (No. 11 of 1901), Part IV., ss. 20, 22, 23, 24Commonwealth of Australia Constitution Act, s. 51, sub-s. 24 — Imprisonment of Fraudulent Debtors Act 1890 (No. 1100), Part I. — Judgment obtained in Tasmania and registered in Victoria — Enforcement of in Victoria — Applicability of procedure by way of fraud summons — Jurisdiction of the Court.

LOVELAND v. BLACKEBY28 VLR 332

A’BECKETT, J.·12 June 1902·Supreme Court of Victoria

PracticeBequest to person named and described as wife of testator — Mistake of fact on the part of the testator — Fraudulent representation — Procedure — Action to set aside certain provisions of will — Rule nisi to revoke.

IN THE ESTATE OF STOREY28 VLR 336

HODGES, J.·16 Oct 1902·Supreme Court of Victoria

Administration and Probate Act 1890 (No. 1060) ss. 15, 16Administration bond — Application to dispense with sureties — Consent of persons interested — Requirements by Court before granting application.

IN THE MATTER OF THE INCOME TAX ACTS NO. 328 VLR 338

MADDEN, C.J., WILLIAMS, and A’BECKETT, JJ.·24 Sept 1902·Supreme Court of Victoria (Full Court)

Income Tax Act 1895 (No. 1374), ss. 14(1), (2), (5), 33, 41Death before last day for making returns — Omission to make return — Liability of executors to make a return in respect of testator's income — Liability to income tax — When liability to tax commences — Effect of Regulation fixing last day for making returns — Exemption from income tax — Default of deceased person — Remedies against executors.

CUMMING v. AUSTIN28 VLR 347

MADDEN, C.J.·22 Aug 1902·Supreme Court of Victoria

Trust fundAssignment of beneficial interest — Notice to trustees — Rights of set-off or payment between assignor and trustees — Assignment by trustee who is also a beneficiary — Assignment to trustee of beneficial interest in the trust fund — Notice to one of several trustees — Imputation of notice to co-trustees.

IN RE INCOME TAX ACTS No. 428 VLR 357

MADDEN, C.J., WILLIAMS, J., A’BECKETT, J.·24 Sept 1902·Supreme Court of Victoria (Full Court)

Constitutional lawCommonwealth and State authority — Interference by State with Federal instrumentality or agency — Interference by State with exclusive jurisdiction of Commonwealth Government — Annual salary of Commonwealth officer fixed by Commonwealth Parliament — Salary for work done in buildings exclusively vested in the Commonwealth — Liability to taxation by State Legislature — Income tax — Salary earned in Victoria — Divisibility of salary for purposes of Income Tax Acts — Comparisons of Constitutions of United States, Canada, and Australia — Principle of McCulloch v. State of Maryland — Unconstitutional legislation by State or Commonwealth — Royal prerogative of disallowance of legislation — Application to Australia of United States decisions on constitutional law — Income Tax Act 1895 (No. 1374), ss. 2, 5, 7 (1) (l), 7 (2), 8 (11) — Income Tax Rate Act 1901 (No. 1758) — Commonwealth of Australia Constitution Act (63 & 64 Vict., c. 12), ss. 51 (xxxi.), 52, 69, 85, 106-109, 125, 128-5 & 6 Vict., c. 76, s. 32-18 & 19 Vict., c. 55, s. 3.

EVANS v. SNEDDON28 VLR 396

MADDEN, C.J., HOLROYD, and HODGES, JJ.·13 Oct 1902·Supreme Court of Victoria (Full Court)

Service and Execution of Process Act 1901 (Commonwealth), 1 Ed. VII. (No. 11), s. 10Writ issued by plaintiff in Victoria for service in New South Wales — Security for costs — Plaintiff uncertificated insolvent — Amount of security

THE ATTORNEY-GENERAL v. THE PRESIDENT, ETC., OF THE SHIRE OF PRESTON28 VLR 402

MADDEN, C.J., WILLIAMS, and A’BECKETT, JJ.·1 Oct 1902·Supreme Court of Victoria (Full Court)

Local Government Act 1890 (No. 1112), s. 541Difference between two municipalities — Drains — Nuisance — Jurisdiction of Supreme Court — Reference to Minister — Remedy exclusive or ancillary.

MILLER v. MILLER28 VLR 412

HODGES, J.·29 Oct 1902·Supreme Court of Victoria

Marriage Act 1890 (No. 1166), s. 108Rules and Regulations 1885 — Rule 10 — Dispensation with service — Substituted service — Domicile — Jurisdiction.

IN RE EVANS28 VLR 413

WILLIAMS, J.·5 Nov 1902·Practice Court

The Licensing Act 1890 (No. 1111), ss. 102, 119, and 140Transfer of licence — Discretion of Licensing Court — Grounds of refusal to grant transfer — Premises destroyed by fire — Liability of licence to be forfeited.

HOUSTON v. DONOVAN28 VLR 418

HOLROYD, A’BECKETT and HODGES, JJ.·25 Sept 1902·Supreme Court of Victoria (Full Court)

Set-offCross claims — Inference of mutual payments — Rebuttal of inference — Intention of parties — Money had and received — Equitable action — Liability of defendant.

MILLER v. MILLER28 VLR 425

MADDEN, C.J.·3 Sept 1902·Supreme Court of Victoria

County Court Act 1890 (No. 1078), s. 124Suit — Equitable jurisdiction of County Court — Transfer of suit — Right of defendant to — Grounds for retention in Supreme Court.

KELSALL v. GUTHRIE28 VLR 427

WILLIAMS, HOLROYD, and A’BECKETT, JJ.·15 Sept 1902·Supreme Court of Victoria (Full Court)

The Licensing Act 1890 (No. 1111), s. 128Grocer's licence — Sale of liquor in quantity not authorized by licence.

CECIL v. CECIL28 VLR 429

A’BECKETT, J.·15 Oct 1902·Supreme Court of Victoria

DivorcePractice — Service and Execution of Process Act 1901 (No. 11, Commonwealth), s. 11 — Leave to proceed — Affidavit of service.

IN RE INCOME TAX ACTS No. 528 VLR 431

MADDEN, C.J., HOLROYD and A’BECKETT, JJ.·3 Oct 1902·Supreme Court of Victoria (Full Court)

Income Tax Act 1895 (No. 1374), s. 9Income from personal exertion — Income liable to tax — Deductions — Medical practitioner — Amount paid for purchase of practice — Claim to deduct from income for year.

LAMONT v. OSBORN28 VLR 434

MADDEN, C.J.·27 Oct 1902·Supreme Court of Victoria

ContractSpecific performance — Agreement to give a mortgage of chattels to secure money actually advanced — Order to execute mortgage in a particular form.

LAMONT v. BENNETT28 VLR 438

HOLROYD, J.·17 Sept 1902·Supreme Court of Victoria

Pounds Act 1890 (No. 1129), ss. 8, 9, 28 (iii.), Second and Third SchedulesCattle trespassing — Impounded cattle — Sustenance fees, when chargeable — Unauthorized charge — Onus of proof.

McDONALD v. THE TRUSTEES EXECUTORS AND AGENCY COMPANY LIMITED28 VLR 442

HODGES, J.·29 Oct 1902·Supreme Court of Victoria

WillAnnuity — Bequest — Conditional limitation — Void condition — Condition "against the law of nature" — Prohibiting children living with mother.

IN THE ESTATE CLARKE28 VLR 447

MADDEN, C.J., A’BECKETT, J., HOLROYD, J.·30 Oct 1902·Supreme Court of Victoria (Full Court)

Administration and Probate Act 1890 (No. 1060), Part V., ss.97, 98Probate duty — Bona notabilia — Locality of specialty debts — Specialty debts secured by mortgage of lands outside Victoria — Liability of to probate duty — Extent to which dutiable.

IN RE DORIA28 VLR 464

HODGES, J.·10 Dec 1902·Supreme Court of Victoria

Practice"Rules of the Supreme Court 1884" — Order LXV., r. 27 (41) — Bill of costs — Review of taxation — Time within which application must be made.

IN RE KENDRICK28 VLR 465

HOOD, J.·26 Feb 1903·Supreme Court of Victoria

Marine Act 1890 (No. 1165), s. 183Master of ship — Charge of misconduct — Form of charge — Certificate of master — Marine Act 1901 (No. 1771), s. 3 — Special case — Right to begin.

IN RE KENDRICK28 VLR 472

HOOD, J.·11 Mar 1903·Supreme Court of Victoria

Marine Act 1901 (No. 1771), s. 3Court of Marine Inquiry — Questions of law reserved for opinion of Supreme Court — Opinion of Supreme Court given — Jurisdiction to receive further evidence.

IN RE MEDLEY28 VLR 475

WILLIAMS, HOLROYD, A’BECKETT, HODGES, and HOOD, JJ.·26 Nov 1902·Practice Court

Marine Act 1890 (No. 1165), ss. 175, 176, 183Charge of misconduct — Form of charge — Appeal — Criminal matter — Marine Act 1901 (No. 1771), s. 3 — Special case to be reserved — Supreme Court Act 1890 (No. 1142), s. 37.

THE MERCANTILE BANK OF AUSTRALIA LIMITED v. DINWOODIE28 VLR 491

MADDEN, C.J., A’BECKETT, HOLROYD, and HODGES, JJ.·5 Nov 1902·Supreme Court of Victoria (Full Court)

CompanyVoluntary winding-up — Liquidators — Resignation of liquidator — Appointment of liquidator, validity of — Exercise of powers by two of several liquidators — Validity of acts of liquidators — Calls, validity of — Companies Act 1890 (No. 1074), ss. 67, 119 (vi.) — Object of Act — Married woman — Joint holder of shares — Survivorship of liability to married woman — Married Women's Property Act 1890 (No. 1116).

IN RE JOHNSTON28 VLR 501

WILLIAMS, J.·28 Nov 1902·Supreme Court of Victoria

Probate practiceProcedure — Originating summons — Trustee under will — Passing of accounts by trustee — Commission to trustee — Jurisdiction.

CHEYNE v. SHIRE OF EAST LODDON28 VLR 503

MADDEN, C.J.·21 Nov 1902·Practice Court

Order of Privy Council reversing judgment of Full CourtJurisdiction of lower tribunal to give effect to decree or order of superior tribunal — Parties to the proceedings.

IN THE WILL OF LEE28 VLR 510

HOLROYD, J.·31 Oct 1902·Supreme Court of Victoria

WillConstruction — Option in trustees to convert — No express trust declared after conversion — Express trust declared if no conversion — Direction to pay income to testator's children "once every three months equally absolutely" — Gift contained in direction to pay — Gift of corpus after the death of testator's children — Intention of testator — Life estate — Legacy to trustees "who shall act in the trusts" of a will — Right of executors and trustees to commission — Insufficiency of remuneration granted to trustees by a will — Jurisdiction of Court to inquire as to sufficiency of remuneration and to grant further remuneration — Administration and Probate Act 1890 (No. 1060), s. 20.

THE WILFLEY ORE CONCENTRATOR SYNDICATE LIMITED v. CENTRAL COOKMAN’S GOLD MINING COMPANY NO LIABILITY28 VLR 520

A’BECKETT, J.·19 Sept 1902·Supreme Court of Victoria

Patents Act 1890 (No. 1123), ss. 8, 56Rules (under Patents Act 1890) 2, 9 — Non-compliance with — Irregularity in application for patent — Effect of grant — Patent for foreign invention — Foreign patent — Prior publication or use in Victoria within twelve months — "Rules of the Supreme Court" — Order XXV., r. 2 — Point of law set down for hearing before trial.

CREDGINGTON v. THE SANDHURST AND NORTHERN DISTRICT TRUSTEES AND EXECUTORS COMPANY LIMITED28 VLR 525

A’BECKETT, J.·25 Aug 1902·Supreme Court of Victoria

PartiesVoluntary deed assigning interest under a will — Setting aside — Undue influence, etc. — Frame of action — Misjoinder of parties.

MILLER v. THE KING28 VLR 530

MADDEN, C.J., WILLIAMS, HOLROYD, and HODGES, JJ.·4 Feb 1903·Supreme Court of Victoria (Full Court)

Public Service Act 1900 (No. 1721), s. 19Departments of Trade and Customs, Defence, and Post and Telegraph — Salaries of officers until taken over by Commonwealth — "Corresponding position in any Australian colony" — Special appropriation of salaries — Public Service Act 1890 (No. 1133), s. 23.

MAYOR, ETC., OF ESSENDON v. LAPISH28 VLR 549

HODGES, J.·17 Dec 1902·Supreme Court of Victoria

Action for debt in Supreme Court which might have been brought in County CourtApplication to stay proceedings upon payment of debt — Action to establish charge on land in respect of unpaid rates — Jurisdiction — Costs against applicant — County Court Act (No. 1078), s. 49.

IN RE SYME28 VLR 552

HOLROYD, J.·7 Dec 1902·Supreme Court of Victoria

Contempt of CourtPublication of articles in newspaper affecting character and conduct of persons in course of trial — Jurisdiction of Court, at what time it arises — Commitment for trial — Criminal jurisdiction — Case pending.

DEARY v. WILKINS28 VLR 560

HOOD, J.·11 Feb 1903·Supreme Court of Victoria

Marine Act 1890 (No. 1165), ss. 144, 150Steamship plying without certificate — "Plying," meaning of — Certificate, limitations in.

McLEAN BROTHERS v. DERHAM28 VLR 564

HOOD, J.·4 Feb 1903·Supreme Court of Victoria

Pounds Act 1890 (No. 1129), ss. 25, 26Illegal impounding — Jurisdiction of justices.

LORD v. LORD28 VLR 566

HODGES, J.·18 Dec 1902·Supreme Court of Victoria

DivorceDomicil — International law — Jurisdiction to dissolve marriage — Place of marriage — Judicial separation — Effect of judicial separation upon marriage tie — Domicil of wife judicially separated from husband — Proper time to object to jurisdiction — Marriage Act 1890 (No. 1166), ss. 74, 76.

DENNIS v. VICTORIAN RAILWAYS COMMISSIONER28 VLR 576

WILLIAMS, A’BECKETT, and HODGES, JJ.·16 Apr 1903·Supreme Court of Victoria (Full Court)

RailwaysNegligence — Fire from engine — Omission to burn or clear off grass on railway line.

McHUGH v. ROLLAND28 VLR 581

HOLROYD, J.·11 Mar 1903·Supreme Court of Victoria

Licensing Act 1890 (No. 1111), ss. 7, 134, 143Bar of licensed premises open on Sunday — Special permit under s. 7 — Extent of authority conferred by — Order to review.

HUNTER v. JOSEPH28 VLR 583

HOLROYD, J.·11 Mar 1903·Supreme Court of Victoria

Justices Act 1890 (No. 1105, s. 141)Police Offences Act 1890 (No. 1126), s. 40, sub-s. 1 — Person charged with offence before justices — Prior conviction — Improper admission of evidence of — Minds of justices not affected by — Order to review.

THE OUTTRIM HOWITT AND BRITISH CONSOLIDATED COAL COMPANY NO LIABILITY v. GREGORY28 VLR 586

MADDEN, C.J., A’BECKETT, and HOOD, J.·3 Mar 1903·Supreme Court of Victoria (Full Court)

Employers and Employs Act 1891 (No. 1219), Part I., ss. 5, 10Employers and Employs Act 1890 (No. 1087), Part III., s. 37 — "Employer" — Incorporated company — Payment for "piece-work" — Independent contractor — Strike — Notice of termination of employment — "Provided the rules are observed by the manager and workmen" — Action by lessee of mine against miner for leaving employment — Damages — Measure of damages — Court of Petty Sessions, special jurisdiction of — Costs — Order in Council "regulating" costs — Jurisdiction to award costs.

PORTEOUS v. LINDLEY28 VLR 606

HOOD, J.·20 Feb 1903·Supreme Court of Victoria

PracticeApplication for jury — Claim for rescission and cancellation of agreement — Breach of agreement and misrepresentation — Claim for return of money paid — Claim for damages — Discretion — Payment into Court in satisfaction of plaintiff's "claim" — Payment into Court in respect of several claims — Particulars — "Rules of Supreme Court 1884" — Order XXII.; Order XXXVI., rr. 3, 6, App. B, Form 3.

REX v. MARK28 VLR 610

MADDEN, C.J., HOLROYD, and HODGES, J.·4 Dec 1902·Supreme Court of Victoria (Full Court)

Criminal LawLarceny — Obtaining money or a chattel by false pretences — Attempt to commit larceny — Attempt to obtain money or a chattel by false pretences — Bank teller — Authority to part with property in bank's money — When the property in change given by a bank teller passes — Jury — Inference from proved facts.

CUMMING v. AUSTIN28 VLR 622

WILLIAMS, HOLROYD, and HODGES, JJ.·4 Feb 1903·Supreme Court of Victoria (Full Court)

TrusteeTrust fund — Assignment of beneficial interest — Notice to trustees — Rights of set-off or payment between assignor and trustees — Assignment by trustee who is also a beneficiary — Assignment by beneficiary who afterwards becomes trustee — Defalcations by trustee before and after he has assigned his beneficial interest — Assignment to trustee of beneficial interest in the trust fund — Notice to one of several trustees — Imputation of notice to co-trustees — "All moneys payable in respect of A.'s interest."

WARNOCK v. AUSTIN28 VLR 630

A’BECKETT, J.·14 Feb 1902·Supreme Court of Victoria

WARNOCK v. AUSTIN28 VLR 632

A’BECKETT, J.·9 Mar 1903·Supreme Court of Victoria

PracticeApplication to vary minutes of declaratory order — Rehearing — Alteration of order.

DAWSON v. JACK28 VLR 634

HODGES, J.·17 Dec 1902·Supreme Court of Victoria

CustomsCommonwealth Customs Act 1901 (No. 6), ss. 183, 234(d), 236 — Making a false entry — Innocent mis-statement made by direction of Customs official — Liability of principal for acts of his agent or servant — Mens rea — "Make an entry."

NIVEN v. GRANT28 VLR 639

WILLIAMS, J.·20 Feb 1903·Supreme Court of Victoria

The English Bankruptcy Act 1883, 46 & 47 Vict., c. 52, s. 118Trustees under English bankruptcy, right of to bring action in Victoria to recover property of bankrupt.

MARTELL v. VICTORIAN COAL MINERS’ ASSOCIATION28 VLR 643

HOLROYD, J.·26 Mar 1903·Supreme Court of Victoria

Practice"Rules of the Supreme Court 1884" — Order XXXI., r. 12 — Discovery — Further affidavit of documents.

ROWE v. EQUITY TRUSTEES EXECUTORS AND AGENCY COMPANY28 VLR 645

MADDEN, C.J., A’BECKETT, and HOOD, JJ.·2 Mar 1903·Supreme Court of Victoria (Full Court)

AppealsLeave to appeal — Ex parte application to the Full Court — Notice to other side, when given — Supreme Court Act 1900 (No. 1696), s. 2(1)(b), sub-s. (4) — Appeal Book, necessity for — Submission of Appeal Book to primary Judge — "Rules of the Supreme Court 1900" — Order LVIII., r. 7.

THE MELBOURNE TRAMWAY AND OMNIBUS COMPANY LIMITED v. THE MAYOR, ETC., OF MELBOURNE28 VLR 647

MADDEN, C.J., WILLIAMS, HOLROYD, A’BECKETT, HODGES, and HOOD, J.·3 Feb 1903·Supreme Court of Victoria (Full Court)

Carriages Act 1890 (No. 1070), ss. 3 and 4Licensed Carriages Statute 1864 (No. 217), ss. 3 and 4 — "Hackney carriage" — Licence for hackney carriage — Tramcar — Melbourne Tramway and Omnibus Company's Act 1883 (No. 765), s. 22 — By-law specially providing for the licensing of tramcars — Licence fees — Demand of payment under threat of prosecution — Involuntary payment.

EQUITY TRUSTEES EXECUTORS AND AGENCY CO. LTD. v. TANSWELL28 VLR 668

A’BECKETT, J.·28 May 1903·Supreme Court of Victoria

Practice"Rules of the Supreme Court 1900" — Order LV., r. 5* — Originating summons — Mortgagor and mortgagee — Delivery of possession by mortgagor, order for.

WILKINSON, HEYWOOD AND CLARK LIMITED v. BRODIE28 VLR 669

WILLIAMS, J.·8 Dec 1902·Supreme Court of Victoria

ShippingBill of lading — "Delivery from ship's deck at her anchorage at wharf" — "Delivery on wharf as customary" — Exception as to "robbers, thieves, and neglect or default of master and others in owner's service" — Disappearance of goods after discharge on wharf — Liability of master — Risk of consignee — Stevedore — Agent to take delivery.

CHAPMAN v. THE VICTORIAN DEEP LEADS COMPANY LIMITED28 VLR 677

MADDEN, C.J., WILLIAMS, J., HOOD, J.·2 Dec 1902·Supreme Court of Victoria (Full Court)

Mines Act 1897 (No. 1514), ss. 129, 148Accident in mine — Evidence of negligence — Onus of proof — Negligence of servant — Rebuttal of prim facie evidence of owner's negligence — Doctrine of "common employment."

BUCKLAND v. IBBOTSON28 VLR 688

A’BECKETT, J.·8 Dec 1902·Supreme Court of Victoria

TrusteeTrust funds — Fraudulent breaches of trust — Liability of innocent co-trustee — Statute of Limitations — Misappropriation by trustee — Trustee permitting money to be received by a stranger to the trust — Continuing neglect to repair breach of trust — Neglect to sue debtor to trusts estate — When cause of action arises — Money lent on unauthorized security — When Statute of Limitations commences to run — Pleading — Pleading answer to Statute of Limitations — Accounts furnished to beneficiaries — Implied authority of passive trustee to co-trustee — Responsibility of passive trustee for false statements of co-trustee — Evidence — Admissibility in evidence against passive trustee of book entries and other documents relating to dealings with trust estate — Rate of interest on moneys lost through breaches of trust — Trusts Act 1896 (No. 1421), s. 29.

TRUSTEES EXECUTORS AND AGENCY CO. LTD. v. SMITH28 VLR 707

MADDEN, C.J.·5 May 1903·Supreme Court of Victoria

PracticeOriginating summons — Question arising in the administration of the estate — Breach of trust.

IN RE THE CROWN HOTEL28 VLR 710

WILLIAMS, A’BECKETT, and HODGES, JJ.·19 May 1903·Supreme Court of Victoria (Full Court)

The Licensing Act 1890 (No. 1111, ss. 170, 188, and 192)Disqualification of hotel premises — Notice of prior convictions.

TUCKER v. MULLIGAN28 VLR 715

A’BECKETT, J.·25 Mar 1902·Practice Court

The Companies Act 1890 (No. 1074), s. 36Rectification of register — Registration of transfer — Unnecessary delay — Shares, transfer of.

JENNER v. THE TRUSTEES EXECUTORS AND AGENCY CO. LTD.28 VLR 716

HODGES, J.·12 June 1903·Practice Court

Practice"Rules of the Supreme Court 1884" — Order XVI., r. 54 — Third party notice — Discontinuance of action by plaintiff, effect upon third party notice — Costs of third party.

JOSEPHS v. COLE28 VLR 719

HODGES, J.·11 June 1903·Supreme Court of Victoria

PracticeJury — "Rules of the Supreme Court 1900" — Order XXX., r. 2 — Summons for directions — Order directing mode of trial — Application for jury — "Rules of the Supreme Court 1884" — Order XXXVI.

WILLIAMS v. JONES28 VLR 721

HOLROYD, J.·29 May 1903·Supreme Court of Victoria

PracticeSheriff's charges — Man in possession — Actual and reasonable expenses — Rule made by Sheriff fixing expenses — Authority of Sheriff to make general rule — Reasonableness of charges — Discretion of Sheriff — Deviation from general rule — Supreme Court Act 1895 (No. 1395), s. 4 — Order in Council of 15th July 1895.

MARTIN v. O’NEILL28 VLR 725

HODGES, J.·12 June 1903·Supreme Court of Victoria

PracticeCosts — Counsel at Chambers — Certificate for counsel — One practitioner acting both as attorney and counsel — "Rules of the Supreme Court 1884" — Order LXV., r. 27 (16) — Legal Profession Practice Act 1891 (No. 1216).

IN RE FONSECA28 VLR 728

HOOD, J, WILLIAMS, J., A’BECKETT, and HODGES, JJ.·2 Apr 1903·Supreme Court of Victoria (Full Court)

Lunacy Act 1890 (No. 1113), ss. 153-161Inquiry as to next of kin — Practice — Finding of Master in Lunacy, effect of — Proof of pedigree — Evidence receivable by Master — Declarations of deceased person de jure connected with person to whom they relate — Admissibility in evidence — Evidence of mother bastardizing child — Inquiry as to next of kin of childless person.