Skip to main content

Full text of "A digest of reported cases in the Supreme court, Court of insolvency, and courts of mines of the state of Victoria, and appeals therefrom to the High court of Australia and the Privy council : For the years 1906 to 1912 inclusive"

See other formats


A3 




QsxxntW ICaro ii>rl|aal Sihranj 



Cornell University Library 
KH 179.5.V64 1906-1912 



A dqest of reported cases in the Suprem 




3 1924 024 524 625 




Cornell University 
Library 



The original of this book is in 
the Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924024524625 



A DIGEST 




--.. "l,YN "^' 



REPORTED CASES 

IN THE 

SUPREME COURT, COURT OF INSOLVENCY, AND COURTS OF 

MINES OF THE STATE OF VICTORIA, AND APPEALS 

THEREFROM TO THE HIUH COURT OF AUSTRALIA 

AND THE PRIVY COUNCIL. 



FOR THE YEARS 



1906 TO 1912 



INCLUSIVE. 



(v. 
V 



By 



L. F. S. RPBINSON, B.A., LL.B. 

(JOINT COMPILER OF THE VICTORIAN DIGESTS, 1890-1895, AND 1895-1900, AND COMPILER OS THE 

VICTORIAN DISEST 1901-1905. 

BARR1STER-AT-LA W. 



iSftdbournc : 
CHARLES F MAXWELL, 

LAW BOOKSELLER AND PUBLISHER, 
458 Chancery Lane. 

London : SWEET & MAXWELL Limited. 



/3 /so-st 

Melbourne ; 

Harston, Partridge & Co., Printers, 

462-US4 Little Collins Street. 




hurxiffi 



PREFACE. 



In the preparation of this work the system of classification 
adopted in previous Victorian Digests has not been departed 
from in any material particular. This Digest includes the 
decisions of the Privy Council and of the High Court sitting 
as Courts of Appeal, and also decisions of the High Court 
sitting in the exercise of its original jurisdiction in cases in 
which the cause of action arose within the State of Victoria. 
There are the usual double indexes of cases and of decisions 
over-ruled, &c, and an index of references to Statutes. 
The compiler is indebted to Mr. Maurice Blackburn, 
Barrister-at-Law, for much valuable assistance. 

Selhorne Chambers, 

May 22nd, 1916. 



CORRIGENDA. 



Col. 32. — The reference to the case of Jenkins' 
v. Lanfranchi should be under 
the sub -heading " (e) Costs.'' 

Col. 198. — In the first reference to the case of 
Re Rogers and Rodd's Contract, 
insert the figures " 13 " before the 
letters " A.L.R." 

Col. 384. — In the fifteenth line from the bot-. 
torn the word " Register " should 
be substituted for the word 
" Registrar.'' 

Col. 406. — In the reference to In re Summons 
for Directions and Interrogatories ; 
Statement on behalf of the Judges 
of the Supreme Court, insert 
immediately after the word 
" Court " the figures and letters 
" (1909 V.L.R., 393." 

Col. 408. — Immediately before the sub- 
heading " (b) Privileged Com- 
munications " insert a reference 
to the case of " Boulton v. 
Robinson,'' in Col. 410. 

Col. 478. — At the foot of the column add » 
reference to the case of " Davis 
v. Davis and Hattrick " in Col. 
482. 

Col. 498. — In the second line from the top 
substitute the word " Suitor's " 
for the word " Solicitors'." 

Col. 512. — After the sub-heading " (6) Affi- 
davits " add a reference to 
" Practice and Pleading," Cols. 
1064, 1065. 



Col. 543. — Immediately before the sub- 
heading " (I) Parties " add a 
reference to the case of " Boulton 
v. Robinson," in Col. 410. 

Col. 561. — Immediately after the sub-heading 
" (d) Commission,'" add " See also, 
post {f) Passing Accounts." 

Col. 618. — In the reference to the case of 
Bloxham v. Bloxham, the words 
" Marriage Act " should be sub- 
stituted for the words " Justices 
Act" 

Col. 658. — In the reference to the case of 
Davis v. Davis and Hattrick, after 
the word " Evidence " insert the 
letters and figures, " Col. 482." 

Col. 716. — In the last line substitute the 
figures ' " 29 " for the figures 
" 30." 

Col. 889. — In the reference to the case of 
Bloxham v. Bloxham, the words 
" Marriage Act " should be sub- 
stituted for the words " Justices 
Act." 

Col. 1196. — After the second reference to the 
case of In re Moore ; Fanning v. 
Fanning, add a reference to the 
case of " Perpetual Executors and 
Trustees Association v. Simpson," 
Col. 1272. 

Col. 1204. — Immediately after the reference 
to the case of Macartney v. 
Macartney, add another reference 
to the same case at col. 1268. 



TABLE OF CASES. 



Aarons v. Aarons, 884, 886, 887. 

, Aarons v., 884, 886, 887. 

A.B., a lunatic, In re, 879, 880. 

Abadee, Robertson v., 628, 629. 

Abbott, Brown v., 1159, 1160, 1208, 1209. 

aBeekett v. Backhouse, 25. 

• v. The Trustees Executors &c. Co. 

Ltd., 1160, 1161, 1162. 
Acheson v. O'Meara ; In re Loughlin, 494, 

1324. 
Ackerly !>. Palmer, 539, 568. 
Adami, Mulder v., 803. 
Adams v. Rogers, 884, 885. 
Ahem v. Cathcart, 855. 

v. Sharp, 865, 866. 

, Williams v., 1051, 1052. 

Ah Pow, In re ; In re Shanghai Club ; Ex 

parte Gleeson, 610, 611, 612. 
Ah Shen, Montague v., 496, 613. 
Ah Sheung, Attorney -General v., 22, 120, 121. 

, Christie v., 500. 

v. Lindberg, 8, 134, 487, 512, 626, 

627, 670, 671, 748. 
, Rex v., 8, 134, 487, 512, 626, 627, 



670, 671, 748. 

Aitken, Cock v., 13, 1200, 1201, 1204, 1206, 
1207, 1277, 1344. 

Akehurst (or Cheke), In re ; Cheke v. Hamil- 
ton, 692, 1155, 1156, 1371. 

Alcock,, Knipe v., 689, 690, 691. 

. Williams v., 308. 

Alderman, In re, 288, 723. 

Alderson u. Gold, 570, 571, 1371. 

Aldred v. Aldred, 652, 653. 

. Aldred v., 652, 653. 

Alexander, Ex parte ; In re Australian Mont 
de Piete Loan &c. Co. Ltd., 146, 147. 



Alexander Cross & Sons Ltd. v. Hasell, 192, 

224, 225. 
Alexander Ferguson & Co. v. Daniel Craw- 
ford & Co., 18, 1217. 
Alfred Lawrence &■ Co., Harrison San Miguel 

Proprietary Ltd., v., 251, 261, 262, 300. 
Allan, In re, 537. 538. 
Allen, In re, 539. 
Altson v. Equity Trustees &c. Co. Ltd., 1332, 

1333. 
Amalgamated Mining Employees Association, 

Prentice v., 21, 110. 
Ambler & Co. Proprietary Ltd. v. Clayton, 

41, 283, 284, 293, 302, 303. 
Amos v. Praser, 22, 23, 24. 
Anderson, In re, 330, 499, 701. 

, Coppel v., 253, 386. 

, In re ; Longstaff v. Anderson, 1331, 

1332, 1346. 
, Longstaff v. ; In re Anderson, 1331, 

1332, 1346. 

, Mooney v., 824, 825. 

, O'Connor v., 629. 

, Sims v., 77, 78. 

, Ex parte ; Transfer of Land Act, 



In re, 1222, 1223. 
Andrews and Montgomery, Montgomery v., 

257. 
Annear v. Inskip, 309, 310. 
Announcement by Judges as to Evidence in 

Support of Application to Dispense with 

Sureties, 539. 
Appleby v. Reddan, 993. 
Appleton v. Moorehead, 118, 119, 120, 125, 

126, 133, 134, 135, 138. 
Applications to Quash Maintenance Orders, 

In re, 619. 



Ill 



TABLE OF CASES. 



IV 



Ararat, Mayor &c. of Borough of, Attorney- 
General (ex rel Dodd) v., 267, 429, 430, 
862, 863. 

Archibald Currie & Co., Merchant Service 
Guild of Australasia v., 1 23. 

Armitage, Clarazite Manufacturing Co. Ltd. 
v., 251, 252. 

Armstrong, Beath v., 931, 932. 

v. Cuming Smith & Co. Pro- 
prietary Ltd., 253, 307. 

v. Duke of Wellington G. M. Co. 



No Liability, 197, 909, 910, 911. 

, Gladstone v., 108, 109. 

v. Great Southern Gold Mining 



Co. No Liability., 29, 30, 317, 1212, 1213. 
, West v., 1192. 



Armytage v. Collector of Imposts, 37, 1185. 
, Davidson v., 1182, 1183, 1185, 

1373. 
Aspinall, Ex parte, 95, 96, 185, 186, 337, 626, 

806. 
Attorney-General v. Ah Sheung, 22, 120, 121. 

[ex rel Bate) v. Camber- 
well, Mayor &c. of, 862, 863. 

{ex rel. Dodd) v. Ararat, 



Mayor &c. of Borough of, 267, 429, 430, 
862, 863. 
, Maddock v. ; In re Dobin- 



son, 1329. 



of, 428, 429. 



v. Melbourne, Mayor &c. 



v. Moses, 609, 610. 

Austin, Richardson v., 895, 896, 1372, 1373. 

Austral Canning Co. Proprietary Ltd. v. 
Austral Grain and Produce Proprietary 
Ltd., 698, 1219, 1220. 

Austral Grain and Produce Proprietary Ltd., 
Austral Canning Co. Proprietary Ltd. v., 
698, 1219, 1220. 

Australian Boot Trade Employees Federa- 
tion, see Boot Trade Employees Federa- 
tion. 

Australian Deposit and Mortgage Bank Ltd., 
Ex parte, 848, 849. 



Webb v., 154, 674, 675, 1372. 
Australian Mont de Piete Loan &c. Co. Ltd., 

In re ; Ex parte Alexander, 146, 147. 
Australian Mutual Provident Society, In re, 

185, 156. 



Australian Mutual Provident Society, Dal- 

gety & Co. Ltd. v., 200, 201. 
Australian Producers and Traders Ltd., In 

re, 161, 162, 211, 212. 
Australian Widows' Fund Life Assurance 

Society Ltd. v. National Mutual Life 

Association of Australasia Ltd., 232, 233, 

511. 
Australian Widows' Fund &c. Society Ltd. v. 

Story, 1030, 1031. 

B 

Backhouse, aBeckett v., 25. 

Bailey v. Bailey, 412, 413, 643, 647, 656. 

, Bailey v., 412, 413, 643, 647, 656. 

v. Federal Commissioner of Land Tax, 



819, 820. 
Baillieu, Bayne v., 1, 2, 700, 701, 706, 1034, 

1035. 
Bairnsdale, President &c. of Shire of, Burton 

v., 47, 48, 49, 1035, 1036. 
Baker, In re, 408. 

, Quiggan Brothers v., 197. 

Balchin, McKenzie v. ; McKenzie, Claimant, 

468, 469. 
Ballarat, Mayor &c. of., Gordon v., 316. 
Ballarat East, Mayor &c. of., Leeder v., 253, 

254, 315, 316, 873, 874. 
Ballarat Trustees, Executors &c. Co. Ltd., 

McKee v., 828, 829. 
Ballarat Trustees &c. Co. v. Perry ; In re 

Lawn, 1329, 1330. 
Banfield, Pemberton v., 24, 25, 574. 
Bank of Australasia, Friedlander v., 205, 206, 

207. 
Bank of Victoria, M'Donald v., 72, 73. 
Barby, Watson v. ; O'Connor (claimant), 794. 
Barger, The King v., 115, 116, 117, 118. 
Barker and Smail, In re, 722. 
Barry v. Cullen, 505, 506, 508. 

, Griffiths v., 305. 

Basse, In re, 530, 531, 532, 543. 
Batchelor, Lawson v., 283, 284. 
Bate, ex rel. ; Attorney-General v. Camber- 
well, Mayor &c. of., 862, 863. 
Baxter v. Commissioner of Taxation, 10, 11, 

12, 14, 15, 19, 20, 114, 137, 138, 901. 
Bayles, England v., 965, 1243, 1348, 1349. 
Bayne v. Baillieu (or Blake), 1, 2, 700, 701, 

706, 1034, 1035. 
, Blake v., 21. 



TABLE OF CASES. 



VI 



Bayne v. Blake, 1, 2, 13, 14, 21, 30, 31, 32, 

538, 539, 700, 701, 703, 732, 733, 1036. 

v. Love, 469, 815. 

v. Riggall, 1, 2, 1034, 1035. 

v. Wilson and Maokinnon, 305, 306. 

Beardsley v. Harris, 1156. 
Bear v. Waxman, 267, 292. 
Beath <?. Armstrong, 931, 932. 
Beattie, Caddy v. 59, 1031, 1032. 
Bedggood & Co. v. Graham, 1214. 
Beecham, Cameron v., 225, 226. 

, Choon v., 309. 

, The King v. ; Ex parte Cameron, 

34, 36, 251. 
Beissel, Crout v , 97, 259, 260, 559, 562, 565, 

929, 930, 1048, 1049, 1253, 1254, 1256. 
Bell v. Clarke, 912, 913. 

, Stapleton v., 466, 959. 

v. Stroud ; In re Stroud. 550, 323, 1335, 

1336, 1356, 1357, 1358, 1359. 
Benalla, President &c. of Shire of v. Cherry, 

341, 866, 867. 
, Daniel v., 

315, 872, 873, 1365, 1366. 
Bendigo and Country Districts Trustees &c. 

Co. Ltd. v. Sandhurst and Northern 

District Trustees &c. Co. Ltd., 142, 1218. 
Bendigo, In re City of ; Ex parte Edward, 

90. 
Bennett, In re, 1305, 1306. 
v. Booty ; In re Osmand, 476, 477, 

481, 499. 
Bennett Brothers, In re, 50, 51. 
v. Benett (Arbitration). 



Berwick, President &e. of Shire of, Etheridge 

v., 275, 276, 277. 
Best v. Best, 300. 

, Best v., 300. 

Bible, Knox v., 463, 464, 492, 493, 612, 613, 

614, 615, 616, 697, 698. 
Biggs v. Cunningham, 462. 

v. Lamley, 837. 

v. Powell, 844. 

, Biely u.,.839, 840. 

Billingham v. Gaff, 463, 465, 571, 572, 584. 

v. Oaten, 581. 

Bini, O'Connor v., 367, 368, 629. 

Birthday Tunnel G. M. Co., Eames v., 432, 

433. 
Bishop v. Chung Brothers, 244, 695, 778, 805. 
Black, In re, 713, 714, 723. 



Black, In re ; Black v. Melbourne Hospital, 

550, 551, 1336. 
v. Melbourne Hospital ; In re Black, 

550, 551, 1336. 
Blackwood, In re : Power v. Melbourne Flour 

Milling Co. Proprietary Ltd., 147, 148. 
Blake, In re, 544. 
(or Baillieu), Bayne v., 1, 2, 700, 706, 

1034, 1035. 
■, Bayne v., 1, 2, 13, 21, 14, 30, 31, 32, 

538, 539, 700. 701, 703, 732, 733, 1036. 

v. Bayne, 21. 

Blakeley, Garnishee ; Greenwood v. Cormack, 

62. 
Blitz, Joske v., 402. 
Bloom, In re, 1170. 
Bloomfield, Love v., 812, 813. 
Bloxham v. Bloxham, 618. 
, Bloxham v., 618. 



Board of Land and Works and Godfrey, In 
re, 51, 52. 

Boilermakers Board, In re, 578, 579, 580, 581. 

Bolton v. Robinson, 410. 

Bond u. Morris, 450, 451. 

Boot Trade Employees Federation, Re ; Ex 
parte Whybrow, 17, 121, 122, 123, 124, 
136, 137, 439, 440, 441, 442, 1113. 

Booty, Bennett v. ; In re Osmand, 476, 477, 
481, 499. 

Borger, In re ; Sandhurst and Northern Dis- 
trict Trustees Co. Ltd. v. Golden, 1348. 

Borrett v. Norwich &c. Insurance Association, 
51. 

Borsum«. Smith, 87, 88, 1127. 

Bourchier v. Victorian Railways Commis- 
sioners, 940, 941. 

Bowers, Falconer v., 482, 483, 493, 494, 512, 
541, 542. 

, Gair v., 482, 483, 493, 494, 512, 541, 



542. 
Bradley, McLaren v., 341. 
Brahe v. Mason ; In re Thompson, 1265, 

1326, 1335, 1336. 
Bread Board, In re, 42, 576, 577, 578, 580, 

581. 
Bremner v. New Normanby Quartz Mining 

Co., No Liability, 914, 915. 
v. Victoria United Co. No Liability, 

914. 
Bridges v. The Commonwealth, 1116. 
Biggs v. Lamley, 837. 



VII 



TABLE OF CASES. 



VIII 



Brisbane v. Stewart, 765, 766. 
Briscoe & Co. Ltd. v. Victorian Bailways 
Commissioners, 45, 46, 47. 

Brock v. Victorian Railways Commissioners, 
307. 

Broken Hill Proprietary Co. Ltd., Federated 
Engine Drivers and Firemen's Associa- 
tion of Australasia v., 139, 437, 438, 442, 
443, 444. 

. , Potter v., 

266, 267. 

Broken Hill South Silver &c. Co. v- N. Guth 
ridge Ltd., 969, 970. 

Brooker v. Brooker, 662. 

, Brooker v., 662. 

Brookes v. The King, 421. 

Brown, In re, 282. 

v. Abbott, 1159, 1160, 1208, 1209. 

and Hall's Costs, In re. See Lam- 
rock, Brown and Hall's Costs. 

v. Burrow, 907, 908. 

v. Gunn : McKay (Garnishee), 693, 

794, 795, 801. 

, Jarrett, v., 1151. 

, The King v., 56, 57, 70, 71, 72, 408, 

409. 

v. Schiffman, 993, 994. 

, Victorian Railwavs Commissioners 



,-.., 12. 

v. Webb, 69. 

Bruce v. Commonwealth Trade Marks Label 

Association, 638, 639. 
Bruen v. Smith, 191, 192. 
Bruton v. Farm and Dairy Machinery Co. 

Proprietary Ltd., 196, 197, 238. 
Buchanan, Smart v., 301, 306, 307. 
Buckhurst, In re ; Equity Trustees Executors 

and Agency Co. v. Buckhurst, 418, 419, 

1205, 1343, 1344. 
Buckhurst, Equity Trustees Executors and 

Agency Co. v. ; In re Buckhurst, 418, 

419, 1205, 1343, 1344. 
Buckhurst, In re ; Melbourne Hospital v. 

Equity Trustees Executors &c. Co. Ltd., 

99. 
Buckle, Bex v., 340. 

Bullows v. Kitchen & Sons Ltd., 636, 637. 
Burgess, Be, 1171, 1172. 
Burley, Davies v. 384. 

, Mackay v., 285, 303. 

Burns v. Registrar of Titles, 849. 



Burr, In re, 529. 

Burrell v. Peacock, 183, 184. 

Burrow, Brown v., 907, 908. 

Burton v. Bairnsdale, President &c. of Shiro 

of, 47, 48, 49, 1035, 1036. 
v. McLeod ; In re McLeod's Patent, 



33, 34, 37. 
Burvett v. Moody, 697, 1185, 1186. 
Butcher and Hipper, In re, 287, 288, 289, 290, 

722, 723. 
Butler, In re, 527. 
, Coulson v., 1029, 1030. 



Buttle v. Hart, 778. 
Buttrose, Canty v., 839. 



Caddy v. Beattie, 59, 1031, 1032. 

Cahill v. Millett, 462, 463, 844. 

Cain v. The King, 1115, 1116. 

v. Watson ; In re Watson, 1243, 1244, 

1252, 1253, 1335, 1338, 1353, 1354, 1355. 
Cairns u. O'Hanlon, 909. 
Caldecott v. Cunningham, 382, 383, 385. 
Calder, Griffith v. ; In re Leggatt, 495, 496, 

1362, 1363. 
Camberwell, Mayor &c. of, Attorney General 

(ex rel Bate) v., 862, 863. 
Camberwell, Town of, Metropolitan Bank 

Ltd. v., 864, 865. 
Cameron v. Beecham, 225, 226. 
, Ex parte ; The King v. Beecham. 



34, 36, 251. 

v. Cameron, 569. 

, Cameron v., 569. 



Camp, In re, 703. 

Campbell, Rex v., 357. 

, Victorian Railways Commis- 
sioners v., 941. 

Campigli, Fitches v., 916. 

Canavan, Sandhurst and Northern District 
&c. Agency Co. Ltd. v., 815, 816. 

Canty v. Buttrose, 839. 

Carbines v. Pittock, 592. 593. 

Carlton and United Breweries Proprietary 
Ltd. c. Sheahan, 304. 

Carlton Brewery Ltd., Ex parte ; The King 
v. Licences Reduction Board, 827, 828, 
830, 831, 841. 

Carrodus v. Carrodus, 1256, 1346. 

, Carrodus v., 1256, 1346. 



IX 



TABLE OF CASES. 



x 



Carroll, Ex parte, 291, 1217, 1218. 

, Shillinglaw v., 499, 593, 594. 

Carr, Russ v., 101, 455, 882, 883. 

, Ex parte ; In re Vance, 1251, 1252. 

Caselberg, Kelsey v., 226, 1020, 1021, 1022. 
Casey v. The King, 1118, 1119. 
Cathcart, Ahern v., 855. 
Cattanach v. Macpherson, 265, 563, 564. 
Caulfield v. Caulfield, 740. 

■ , Caulfield v., 740. 

Caulfield, Elsternwick and Malvern Tramway 

Co. v. Royal Bank of Australia Ltd., 153. 
Cave Brown Cave, In re, 556. 
Cavin, In re, 556. 
Cawsey, Seott v., 1193, 1371. 
Chandler v. Collector of Imposts, 375, 376. 
Charles v. Grierson, 837. 
Charlton, President &c. of Shire of v. Ruse, 

635, 636, 744, 1186. 
Chauncey, Moorhead v. ; Hays, Claimant, 

311, 312. 
Cheke (or Akhurst), In re ; Cheke v. Hamil- 
ton, 692, 1155, 1156, 1371. 
Cheke v, Hamilton ; In re Cheke (or Akhurst), 

692, 1155, 1156, 1371. 
Cheong v. Lohmann, 214. 
Cherry, Benalla, President &c. of Shire of v., 

341, 866, 867. 
Chirnside, Davidson v., 1183, 1184, 1185. 
Chisholm, Smith v , 291. 
Chomley v. Watson, 261, 378, 379, 388. 
Choon v. Beecham, 309. 
Christensen v. Jamieson ; In re Jamieson, 

264, 557. 
Christie v. Ah Sheung, 500. 
, Li Wan Quai „-., 363. 620, 669, 671, 



672. 



v. Robinson, 27, 218, 222, 223. 



Chung Brothers, Bishop v., 244, 695, 778, 805. 

City of Melbourne Bank, In re, 16!. 

City of Melbourne v. Howard Smith & Co. 

Ltd., 857, 858. 
Clarazite Manufacturing Co. Ltd. v. Armi- 

tage, 251, 252. 
Clarke, Re, 1120. 

, Bell v., 912, 913. 

v. Inverarity, 782, 783. 

v. Norton, 394, 395, 396. 

Clark, Kiel v., 397. 

Clayton, Ambler & Co. Proprietary Ltd. v., 

41, 283, 284, 392, 302, 303. 



Clement v. Jones, 846, 847. 
Coburn, In re, 75, 76. 
Cochrane v. Tuthill, 695, 870. 871. 
Cock v. Aitken, 13, 1200, 1201, 1204, 1206, 
1207, 1277, 1344. 

, Smith v., 13, 23, 1263, 1264. 

Cohen, In re, 724, 725. 720, 730, 731, 732. 

v. MacDonough (or O'Donough), 497, 

512, 513, 776, 777, 791. 

Colborne, McKinnon v., 839. 

Coleman, In re ; Equity Trustees &c. Co. 

Ltd. v. Coleman, 1338. 
, Equity Trustees &c. Co. Ltd. v. ; 

In re Coleman, 1338. 
Coles, In re, 725. 
Cole, Wilson v., 782. 
Collector of Imposts, Armytage v., 37, 1185. 

■, Chandler v., 375, 376. 

, Davies v., 1182. 

, Hendy v., 1185. 

. Kelly v., 1181, 1182. 

Collins, Rex v., 364. 

Collis, Wrigglesworth v. ; Spencer, Claimant, 

75. 
Colman v. Miller, 87, 88, 89, 461, 1049. 
Colonial Bank of Australia Ltd. v. Marshall, 

70, 1033, 1034. 

i'. Martin, 

1033, 1034. 



v. Nicholl, 

1030, 1031. 
Colonial Mutual Life Assurance Society Ltd., 

Gill v., 434. 

Mallett v. ; In re Mallett, 931. 



Pendlebury v., 466, 932. 
Commissioners of Taxation, Baxter ?.., 10, 

11, 12, 14, 15, 19, 20, 114, 137, 138, 901. 
Commissioner of Taxes v. Melbourne Trust 

Ltd., 675, 676. 
Commissioner of Land Tax (Federal), Bailey 

v., 819, 820. 
Commonwealth, Bridges v., 1116. 

, Cousins v., 134, 135, 1114. 

. , Curley v., 1115. 

, Eastern Extension Aus- 



tralasia &c. Co. v., 237, 238. 

v, McKay, 115, 116, 117, 118. 

. v. Miller, 402, 403. 



XI 



TABLE OF CASES. 



XII 



Commonwealth v. Progress Advertising and 
Press Agency Co. Proprietary Ltd., 1050, 
1060. 

• — , Sargood Brothers v., 374, 

375, 376, 377, 1367. 

. Trade Marks Label Associa- 



tion, Bruce v., 638, 639. 
, Williamson v., 380, 1116, 



1117, 1118. 
Confidence Extended Co., Trewartha v., 769, 

770. 
Connan v. Victorian Railways Commissioners, 

308, 309. 
Connell, In re ; National Trustees Executors 

&c. Co. of Australasia Ltd. v. Connell, 

1324, 1325, 1349, 1350. 
,. National Trustees Executors &e. 

Co. of Australasia Ltd. v. ; In re Connell, 

1324, 1325, 1349, 1350. 
Connolly v. Macartney, 26, 27, 1038. 
Connor, Horwitz v., 26, 168, 368. 
Cook and Preece's Contract, In re, 207, 208, 

222. 
Coonan v. Peacock, 359, 360. 
Co-operative Brick Co. Proprietary Ltd. v. 

Hawthorn, Mayor &c. of City of, 852, 

853. 
Cooper, In re, 719, 720, 721. 

, Dunlop v„ 494, 974, 975, 976, 977. 

v. Fisken, 213, 214. 

, Philips v., 78. 

Coppel v. Anderson, 253, 386. 

Cormack, Greenwood v. ; Blakeley, Garnishee, 

62. 
Coronation Syndicate Mining Co., Ex parte ; 

In re Transfer of Land Act, 153. 
Cotter, In re, 407, 408. 
Coulson v. Butler, 1029, 1030. 
Cousins v. Commonwealth, 134, 135, 1114. 
Coverdale, In re, 544, 545. 
Cox v. Hoban, 209, 210. 

v. Smail, 58, 59, 459, 712, 713. 

Creak v. James Moore & Sons Proprietary 

Ltd., 1146. 
Creswell, The King v., Ex parte Heslop ; 

O'Donnell v. Heslop, 1152, 1153, 1154. 
Crispin, Pearson Rowe Smith & Co. o., 303. 
Crook's Contract, In re, 198, 199. 
Cross v. Daffy, 518. 
Cross & Sons v. Hasell, 192, 224, 225. 
Crouch v. Ozanne, 112, 113. 



Crouch v. Victorian Railways Commissioners, - 

56, 308. 
, Webb v., 12, 13. 



Crout v. Beissel, 97, 259, 260, 559, 562, 565, 

929, 930, 1048, 1049, 1253, 1254, 1256. 
Crowe, Rex v., 335, 336. 

Crowson v. Wild ; In re Green 494, 495, 1340. 
Cuddigan v. Poole, 453, 929. 
Cullen, Barry v., 505, 506, 508. 
v. Welsbach Light Co. of Australasia 



Ltd., 460, 970, 971. 

Cuming Smith & Co. Proprietary Ltd., Arm- 
strong v., 253, 307. 

. Mel- 



bourne Harbour Trust Commissioners v., 

1050, 1051. 
Cunningham, Biggs v., 462. 

, Caldecott v., 382, 383, 385. 

, Lee v., 252, 253. 



Curley v. Commonwealth, 1115. 
v. The King, 1115. 



Curran, Vincent v., 773, 774, 905. 

Cutts, Walder v., 78, 1099, 1100, 1101, 1106. 



Daffy, Cross v., 518. 

Dale, The King v., 809. 

Dalgety & Co. Ltd. v. Australian Mutual 

Provident Society, 200, 201. 

, Hay v., 764. 

Daly, Ex parte ; In re Hollins, 851, 852. 
Danaher, Ex parte ; In re Transfer of Land 

Act, 559, 560, 1227, 1228. 
Daniel v. Benalla, President &c. of Shire of, 

315, 872, 873, 1365, 1366. 
Daniel Crawford & Co., Alexander Ferguson 

& Co., v. 18, 1217. 
Daniel v. McNamara, 280, 281. 
Daniel White & Co. Ltd., National Trustees 

Executors &c. Co. Ltd. v. ; In re Warren, 

709. 
David v. Malouf, 702, 703. 
Davidson v. Armytage, 1182, 1183, 1185, 

1373. 
Davidson Brothers, L. Osborn & Co. v., 226. 
Davidson v. Chimside, 1183, 1184, 1185. 
, Macrow & Sons Proprietary Ltd.. 

v., 313, 314., 
, Weedon v., 867, 868. 



David Syme & Co., Shaw v., 409. 



XII 1 



TABLE OF CASES. 



X.IV 



David Syme & Co. v. Swinburne, 38, 39, 297, 

379, 459, 759, 762, 763, 768, 769, 770, 

1050, 1098. 
Davies v. Burley, 384. 

v. Collector of Imposts, 1182. 

v. Young, 838. 

Davis v. Davis ; Hattrick, co-respondent, 

404, 405, 406, 482. 
■ , Davis v. ; Hattrick, co-respondent, 

404, 405, 406, 482. 

, Helding v., 1007. 

. , Stapleton v. ; Stapleton v. Bell, 466, 



959. 
Day and Sloan, In re, 289. 
Delaney v. Napthine, 620. 
De La Rue v. Everett, 244, 245. 
Densham v. Quirk, 303. 
Dent and Williamson, McKenna v., 774. 
Devlin v. Tredrea, 302, 304. 
Dickason v. Edwards, 591, 592, 900. 
Dight, Dugdale v., 86, 87. 
Dingwall, In re ; Ross v, Ross, 265, 266. 
Dobinson, In re ; Maddock v. Attorney- 
General, 1329. 
Dodd, ex rel : Attorney-General -v. Ararat, 

Mayor &c. of Borough of, 267, 862, 863. 

, O'Donnell v., 464, 606. 

Doig v. Keating, 1006, 1007. 

Dolman, Patterson v., 191, 194. 

Dolphin v. Harrison, San Miguel Proprietary 

Ltd., 216, 217. 
Donaldson v. Leaf; In re Leaf, 495, 1330, 

1331. 
Donnelly, Moss v., 1048. 
Douglas, Leviston v., 261. 
Doveton, Looker & Sons v., 217, 218. 
Downer, Rees v., 783, 803. 
Dowdney, Hamer v., 383, 384. 
Downey, Rex v., 362. 
Drake v. Templeton, 928. 
Draper, In re ; Graham v. Draper, 417, 418. 

, Graham v. ; In re Draper, 417, 418. 

Dugdale v. Dight, 86, 87. 

v. West, 86, 87. 

Duke of Wellington G. M. Co. No Liability, 

Armstrongs, 197, 909, 910, 911. 
Duke's Will, In re, 268, 269, 270, 272, 273, 

277, 278, 280. 
Dunbar, National Trustees Executors &c. 

Co. of Australasia Ltd. v. ; In re Munro, 

1244, 1337, 1341, 1342, 1343. 



Duncan v. Skinner, 572, 573. 
Dungey v. Dunlovie, 619, 621, 622. 
Dunlevie, Dungey v., 619, 621, 622. 
Dunlop v. Cooper, 494, 974, 975, 976, 977. 
Dunn, Ex parte ; Ex parte Aspinall, 95, 96, 
185, 186, 337, 626, 806. 

, Rider v., 630, 632, 633. 

, Sanderson v., 94. 



Dun's Gazette, Wilson ?>., 381, 393, 394, 396, 

397. 
Durean, Kane v., 796, 935, 936, 1372. 

E 

Eager, In re, 1169, 1170. 

Eames v. Birthday Tunnel G. M. Co., 432, 433. 

Early, In re, 288, 721. 

Eastern Extension Australasia &c. Co. v. 

The Commonwealth, 237, 238. 
Eastwood, Trustees Executors &c. Co. v. ; In 

re Hudson, 1348. 
Ebbells v. Rewell, 811, 812, 818, 1004. 
Edgar v. Greenwood, 415, 420, 421. 
Edmiston, Morrison v., 810, 811. 
Edmonds and Harrison, Ex parte ; In re 

Transfer of Land Act, 1228, 1248, 1249. 
Edwards, In re : Ex parte Bendigo, City of, 

90. 

, Dickason v., 591, 592, 900. 

v. Edwards, 1039. 

, Edwards v., 1039. 

v. Smith ; In re Smith, 1 198, 1199. 

Egan, Sternberg v., 79. 
, Townsing v., 281. 



Egerton and Gordon Consolidated Gold Mines 

Co., In re, 159, 295, 920. 
Ellis, Hegarty v., 909. 
Elton, Rex v., 337, 338. 
Emmerton, Swanson v., 1174, 1175, 1201, 

1263. 
England v. Bayles, 965, 1243, 1348, 1349. 
English, In re, 691. 
v. Potter, 469, 1304. 



Equitable Life Assurance Society of the 
United States, Warnecke v., 387, 504. 

Equity Trustees Executors &c. Co. Ltd., 
Altson v., 1332, 1333. 



v. Buckhurst ; In re Buckhurst, 418, 419, 
1205, 1343, 1344. 



XV 



TABLE OF CASES. 



XVI 



Equity Trustees Executors &c. Co. Ltd. 
v. Coleman ; In re Coleman, 1338. 



v. Harston, 816, 817. 



Melbourne Hospital v. ; In re Buck- 
hurst, 99. 



and O'Halloran, Ex parte ; In re Trans- 
fer of Land Act, 558, 559. 



Wilkie v., 1201, 1202. 



Ferntree Gully, President &c. of Shire of v. 

Johnson, 858, 859. 
Ferrier v. Stewart, 76, 77. 
Ferris v. Litchfield, 309. 
Fink, In re, 1237. 
, Robertson v., 930, 931. 



Finn, In re, 723. 
Fisken, Cooper v., 213, 214. 
Fitches v. Campigli, 916. 
Fitzgerald v. Murray, 329. 
Fitzpatrick Brothers, In re, 721. 
Fleming v. Greene, 423, 425. 
, Railton v., 299, 300. 



Wilson v., 845. 
Ethell, In re, 1248. 
Etheridge v. Berwick, President &c. of Shire 

of, 275, 276, 277. 
Everett, De la Rue v., 244, 245. 



Falconae, v. Bowers,. 482, 483, 493, 494, 512, 
541, 542. 

. Gair v., 482, 483, 493, 494, 512, 

541, 542. 
Falconer v. Falconer, 793. 

, Falconer v., 793. 

Fanning v. Fanning ; In re Moore, 1197, 1203. 

— , Fanning v. ; In re Moore, 1197, 1203. 

Farm and Dairy Machinery Co. Proprietary 

Ltd., Bruton v., 196, 197, 238. 
Farrands v. Melbourne, Mayor &c. of, 304, 

305, 317, 318, 380, 381, 459. 
Farrell, Patterson v., 220, 221. 
Farrer v. Fairer, 256, 257, 258, 658. 

, Farrer v., 256, 257, 258, 658. 

Fatt, Trustees Executors and Agency Co. 

Ltd. v. ; In re Wallace, 1329. 
Federal Building Society, Richmond, Mayor 

&c. of v., 845. 
Federal Building Society and Sutton's Con- 
tract, In re, 199. 
Federated Engine Drivers and Firemen's 
Association of Australasia v. Broken Hill 
Proprietary Co. Ltd., 139, 437, 438, 442, 
443, 444. 
Federated Sawmill Timberyard &c. Em- 
ployees Association of Australia v. James 
Moore & Sons Proprietary Ltd., 583. 
Fellmongers' Board, In re, 575, 576, 577, 579, 

580. 
Fergie, Johnson v., 1048. 



Flint, Webb v., 12, 13. 

v. Webb, 10, 11, 12, 14, 15, 19, 20, 114, 

137, 138, 901. 
Floate, Ireland v., 314. 
Foley, Smith v., 1037. 
Foller, In re, 508, 509. 
Fomsgard v. Fomsgard, 1259. 

. Fomsgard v., 1259. 

Footscray Quarries Proprietary Ltd. v. 

Nicholls, 431, 432. 
Foran, Ryan v., 609. 
Forbes, In re, 532. 

Ford v. Foulkes ; In re Foulkes, 265, 1038. 
Forrest, Rex v., 360, 361. 
Forster v. Forster, 471, 472, 642, 643, 644. 

, Forster v., 471, 472, 642, 643, 644. 

, Hopkins *., 262, 282, 284, 285. 



Foulkes, In re ; Ford v. Foulkes, 265, 1038. 
, Ford v. ; In re Foulkes, 265, 1038. 



Foulsham, Wimble v., 344. 

Fraser, Amos v., 22, 23, 24. 

Fraser, McCure v., 1191. 

v. Victorian Railways Commissioners, 



460, 461, 480, 938, 939, 943. 
Freeman v. Kempster, 49. 

v. Wells, 813. 

Frencham v. Melbourne and Metropolitan 

Board of Works, 904, 905. 
Friedlander v. Bank of Australasia, 205, 206, 

207. 

G 

Gaff, Billingham u., 463, 465, 571, 572, 584. 
Gair v. Bowers, 482, '483, 493, 494, 512, 541, 

542. 
v. Falconer, 482, 483, 493, 494, 512. 541, 

542. 
Galsworthy v. Reid, 258, 259, 1049, 1050. 



XVII 



TABLE OF CASES. 



xvm 



Gange, McKinnon v., 37, 93. 

Garrett, In re ; Smith v. Garrett, 566. 

, Smith v. ; In re Garrett, 566. 

Garriok v. Garriok ; Sutton, co-respondent, 
254, 255, 297. 

Garriok v. ; Sutton, co-respondent, 

254, 255, 297. 

Gavey v. Gavey, 618, 619. 

, Gavey v., 618, 619. 

Gedge, Jones v., 1221. 

Geelong Harbour Trust Commissioners, Mari- 
time Insurance Co. Ltd. v., 758, 759. 

Geelong, Mayor &c. of, Geelong Mechanics' 
Institute v., 239, 859, 860. 

Geelong Mechanics' Institute v. Geelong, 
Mayor &c. of, 239, 859, 860. 

General Finance <fcc. Co. v. National Trustees 
&c. Co., 262. 

George, In re, 250, 251, 601, 790, 806, 807. 

Gerber, Montgomery v., 92, 93. 

Gerraty, McGavin v., 210, 211. 

Ghillmetei, In re, 536. 

Gilbert, In re, 532, 533. 

Gill v. Colonial Mutual Life Assurance 
Society Ltd., 434. 

Gillen, Poowong, Shire of, v., 859. 

Gillies v. Hartnett Patent Milking Machine 
Co. Ltd., 969, 972, 973, 976, 982, 983. 

Gillin v. Malmgren, 987, 1374. 

Gladstone v. Armstrong, 108, 109. 

Glass, Honeybone v., 493, 852. 

v. Pioneer. Rubber Works of Aus- 
tralia Ltd., 34, 152, 194, 195, 196. 

Gleeson, In re ; Gleeson v. Gleeson, 1326, 1327 

1332. 
v. Gleeson ; In re Gleeson, 1326, 

1327, 1332. 
, Gleeson v. ; In re Gleeson, 1326, 

1327, 1332. 

v. Hohson, 347, 831, 832, 833. 

. Ex parte ; In re Lotteries Gaming 

and Betting Act, 609, 610, 899. 
, Ex parte ; In re Shanghai Club ; 

In re Ah Pow, 610, 611, 612. 
v. Victorian Railways Commis- 
sioners, 1128. 
Glenelg, Shire of v. Grills ; Matheson v. Grills, 

808, 939, 940. 
Gobetti v. Harris, 308. 
Godfrey and Board of Land and Works, In 

re, 51, 52. 



Godrich, National Mutual Life Association of 
Australasia Ltd., v., 502, 503, 504, 745, 
1066. 

Gold, Alderson v. 570, 571, 1371. 

Golden, Sandhurst and Northen District 
Trustees Co. Ltd. v. ; In re Borger, 1348. 

Goldsmith v. Sands, 687, 688. 

Gollan v. Pyle ; In re Lewis, 1242. 

Goodenough v. Victoria United Co., 914. 

Goodman v. Goodman, 255. 

, Goodman v., 255. 

v. Jonas, 300, 778 

Goodson v. M'Namara, 988. 

Gordon u. BaUarat, Mayor &c. of, 316. 

Gosman v. Oekerby, 214, 215, 216, 1020. 

Graham, In r<i, 535, 536, 537, 913. 

& Co., Bedggood v., 1214. 

— v. Draper ; In re Draper, 417, 418. 

v. Lucas, 802, 823. 

, Lucas v., 835, 836. 

v. Matoorekos, 836. 



Grant u. Trustees Executors &c. Co. Ltd. ; 

In re Lyons, 898, 1347, 1348. 
Great Southern Gold Mining Co. No Liability, 

Armstrong v., 29, 30, 317, 1212, 1213. 
Great Southern Land Investment Co., In re, 

14], 142. 
Greaves, In re ; Mitchell, trustee, 726. 
Greene, Fleming v., 424, 425. 
Green, In rt ; Crowson v. Wild, 494, 495, 

1340. 

v. Jones, 990, 991, 1367. 

v. Summers, 815. 

Greenway v. McKay, 534, 535, 543, 544, 545, 

546. 
Greenwood v. Cormack ; Blakeley, garnishee, 

62. 

, Edgar <:, 415, 420, 421. 

Greig, Martin v., 1031. 

Grice, McLean Brothers & Rigg Ltd. t., 149, 

150, 276, 277. 
Grierson, Charles v., 837. 
Griffin -a. Millane, 260. 
Griffith v. Calder ; In re Leggatt, 495, 496, 

1362, 1363. 

v. O'Donoghue, 192, 193. 

Griffiths v. Barry, 305. 

Grills, Glenelg, Shire of v. ; Matheson v. 

Grills, 808, 939, 940. 
, Matheson v. ; Glenelg, Shire of v. 

Grills, 808, 939, 940. 



XIX 



TABLE OF CASES. 



xx 



Grimshaw, Hall v. ; In re Lord, 1328, 1329. 
Grnnden v. Nissen, 32, 561, 562, 1253, 1256, 

1257, 1258, 1272, 1273. 
Gunn, Brown v. ; McKay (garnishee), 693, 

794, 795, 801. 
Gunner v. Payne, 348, 630. 
Guthridge. See N. Guthridge. 



H 



Haddon v. Lynch, 958. 
Hagelthorn v. Kew, Mayor &c. of, 865. 
Haggar, MeSweeney v., 797, 798. 
Hall, In re, 528, 529, 822, 823. 

v. Grimshaw ; In re Lord, 1328, 1329. 

Hamer v. Dowdney, 383, 384. 
Hamilton, In re, 705. 

, Cheke v. ; In re Cheke [or Ake- 

hurst), 692, 1155, 1156, 1371. 
v. Warne. 704, 705, 706. 



Hannay, Maekinnon r., 571 . 

Harbour Trust. See Melbourne Harbour 

Trust. 
Hargreaves, Tognini v., 473. 
Harney v. Huntley, President &c. of Shire of, 

1061, 1062. 
Harper, Ronald v., 28, 29, 187, 327, 388, 391, 

392, 393, 950, 951, 1066. 
Harris, Beardsley v., 1156. 

, Gobetti v., 308. 

v. Jones ; In re .Tones, 1326. 

Harrison San Miguel Proprietary Ltd. v. Alfred 

Lawrence & Co., 251, 261, 262, 300. 
, Dol- 
phin v., 216, 217. 
Harston, Equity Trustees Executors and 

Agency Co. Ltd. v., 816, 817. 
Hart, Buttle v., 778. 
Hartnett Patent Milking Machine Co. Ltd., 

Gillies v., 969, 972, 973, 976, 982, 983. 
Harvey v. Harvey ; Thomas, co-respondent, 

653, 654. 
, Harvey v. ; Thomas, co-respondent, 

653, 654. 
Hasell, Alexander Cross & Sons Ltd. v., 192, 

224, 225. 
Hassett, Moffatt v., 346, 602. 
, National Trustees Executors &c. 

Co. of Australasia Ltd. v., 272, 273, 274, 

275, 373, 374, 497, 1043, 1044, 1223, 1224, 

1225, 1226, 1236. 



Hattrick, co-respondent : Davis v. Davis, 404, 

405, 406, 482. 
Haweis, Miller v., 20, 21. 
Hawthorn, Mayor &c. of City of, Co-operative 

Brick Co. Proprietary Ltd. v., 852, 853. 
S , In re ; Ex 



parte Swan, 854, 855. 
Hay v. Dalgety <lfc Co. Ltd., 764. 
Hays, claimant ; Moorhead v. Chauncey, 311, 

312. 
Haywood, Mumford v., 640, 986, 987. 
H. Beecham & Co. v. R. W. Cameron & Co., 

225, 226. 
Hearnw. Hill, 113. 
Hebbard, Schroder v., 80, 81. 
Hedgeland, West v., 207. 
Hegarty v. Ellis, 909. 
Helding v. Davis, 1007. 
Henderson u. Ward, 62, 63. 
Hendy v. Collector of Imposts, 1185. 
Henty v. Orient Steam Navigation Co. Ltd., 

223. 
Herron v. McNicol ; In re McNicol, 1328. 
Heslop, O'Donnell v. ; The King v. Creswell, 

Ex parte Heslop, 1152, 1153, 1154. 
, Ex parte, The King v. Creswell ; 



O'Donnell v. Heslop, 1152, 1153, 1154. 
Hibbert, Rex v., 332. 

Hickling v. Skerritt, 473, 696, 697, 803, 804. 
Hickman, In re, 187. 
Hie Lee, Ingham v., 573, 574, 745. 
Hill and Marshall, Rex v., 338. 
Hill, Hearn v., 113. 
Hilliard, In re ; Ex parte Tinkler, 56. 
Hines v. Phillips, 448, 581, 582, 693. 
Hipper and Butcher, In re, 287, 288, 289, 290, 

722. 723. 
Hiscock v. Salmon, 1044. 
H. McKenzie Ltd., Trapp, Couche & Co. v., 

505. 
Hoare, In re ; Quinlan v. Hoare, 1339, 1340. 
, Quinlan v. ; In re Hoare, 1339, 1340. 



Hoarey, In re, 158, 530, 531, 534, 746. 

Hoban, Cox v.. 209, 210. 

Hobson, Gleeson v., 347, 831, 832, 833. 

, In re ; Hobson v. Sharp, 259, 565, 

1321, 1326, 1351, 1352. 
■ v. Sharp ; In re Hobson, 259, 565, 



1321, 1326, 1351, 1352. 
Hocking v. Hocking, 471, 650. 
, Hocking v., 471, 650. 



XXI 



TABLE OF CASES. 



XXII 



Hoffmeyer v. Hoffmeyer, 645, 646, 647, 648. 

, Hoffmeyer v., 645, 646, 647, 648. 

Holden v. Lawes-Wittewronge, 212, 213. 
Holford and Wife v. Melbourne Tramway and 

Omnibus Co., 39,40, 762, 768, 1065. 
Hollins, In re ; Ex parte Daly, 851, 852. 
Holmes v. Holmes, 1195, 1196, 1205. 

, Holmes v., 1195, 1196, 1205. 

Honeybone v. Glass, 493, 852. 
Hooke, Myers v., 585. 
Hope, Re, 1251. 

v. The King, 25, 353. 

, Rex v., 25, 353, 354, 355. 

Hopkins v. Forster, 262, 282, 284, 285. 

Hopper v. Meyer, 234. 

Hornsby & Sons. See Richard Hornsby & 

Sons. 
Horton or Norton & Sons Ltd. v. Sewell, 157. 
Horwitz v. Connor, 26, 168, 368. 
Hosken, Lambourn v., 847, 849, 850. 

, Mahoney v., 1234, 1235. 

, Marriott v., 850. 

, Perpetual Executors and Trustees 

Association &c. Ltd. v., 927, 928. 
House v. Whitelock, 217. 
Howard v. Howard, 256, 257. 

, Howard v., 256, 257. 

and Parkinson, Scott v., 988. 

v. Murphy, 993. 

Smith & Co. Ltd., Melbourne, Mayor 

&c. of City of v., 857, 858. 

v. Varawa, 25, 26. 

, Varawa w., 1, 28,- 



404, 405, 891, 1023. 
Howe v. Lees, 390, 391, 393. 
, Thornton & Palmer, Shackell v., 57, 

58, 60. 
Howell, In re, 563. 
Huddart Parker & Co. Proprietary Ltd. v. 

Moorehead, 118, 119, 120, 125, 126, 133, 

134, 135, 138. 
Hudson, In re ; Trustees Executors &c. Co. 

v. Eastwood, 1348. 
Humphris, O'Sullivan v., 777, 798. 
Hunter Bros., Ex parte, 479, 826. 
Hunter v. Stewart, 364, 783. 
Huntley, President &c. of Shire of, Harney v., 

1061, 1062. 
Hutchinson v. Hutchinson, 645, 646, 654. 

, Hutchinson v., 645, 646, 654. 

Hyde v. O'Reilly, 936. 



Ice Board, In re, 42, 578. 

Income Tax Acts, In re, 154, 155, 156, 296, 

297, 678, 679, 682, 683, 685, 1058. 
■ Ex parte Quat Quatta 



Co., 676, 677. 



The Seven Hills Es- 



tate Co.'s Case, 677, 678. 
Ingham v. Hie Lee, 573, 574, 745. 
Inskip, Annear v., 309, 310. 
International Harvester Co. of America Ltd. 

v. Mullavey, 262, 263. 

v. Peacock 968, 969, 972, 973. 

v. Rowe, 76. 
Inverarity, Clarke v., 782, 783. 
Iredell v. Skinner, 782. 
Ireland v. Floate, 314. 
Irvine, Moore v., 1298. 
Isles v. Isles, 649. 
, Isles v., 649. 



Jacosto, Rex v., 348. 

Jager v. Richards, 62, 1015. 

, Richards v., 62, 459. 

James, In re, 731. 

James Moore & Sons Proprietary Ltd., Creak 
v., 1146. 

Feder- 
ated Sawmill Timberyard &c. Employees 
Association of Australia v., 583. 

Jamieson, In re ; Christensen v. Jamieson, 
264, 557. 

, Christensen v. ; In re Jamieson, 

264, 557. 

. North v., 766. 



Jarrett v. Brown, 1151. 

v. Strempel, 274, 275. 

Jenkins v. Lanfranchi, 23, 24, 28, 29, 32. 

, Mollis v., 633. 

, Moss v., 764, 765. 

v. Stewart, 1323, 1339. 



Jenner, O'Connor v., 631, 632. 

Johnson, In re, 251. 

, Malvern, Mayor &c. of v., 281, 306, 



311. 



v. Fergie, 1048. 



xxm 



TABLE OF CASES. 



XXIV 



Johnson, In re ; Perpetual Executors &c. 

Association v. Johnson, 565, 1261, 1262. 
, Perpetual Executors &c. Association 

i'. ; In re Johnson, 565, 1261, 1262. 
Johnston, In re, 527, 528. 
, Ferntree Gully, President &c. of 

Shire of v. 858, 859. 
, McMahon v., 789, 790, 791. 



Jonas, Goodman v., 300, 778. 

Jones, In re, 57. 

, Clement v., 846, 847. 

, v. Gedge, 1221. 

, Green v., 990, 991, 1367. 

, In re ; Harris v. Jones, 1 326. 

, Harris v. ; In re Jones, 1326. 

v. Roxby, 992. 

Jopling v. Jopling, 49, 50. 

, Jopling v., 49, 50. 

Jordan v. Jordan, 646, 647. 

, Jordan v., 646, 647. 

Joske v. Blitz, 402. 

v. Lubrano, 400, 784. 

, Ormond v., 619, 620. 

, Stiggants v., 401. 

v. Strutt, 401, 402. 

Jumbunna Coal Mine No Liability v. Vic- 
torian Coal Miners' Association, 16, 17, 
18, 121, 122, 123. 



Kamabooka Gold Mining Co. v. Ken-, 23. 

Kane v. Dureau, 796, 935, 936, 1372. 

Keam (or Kean), In re, 1247. 

Keane, In re, 263. 

Kean (or Keam), In re, 1247. 

Keating, Doig v., 1006, 1007. 

Kellow, Rex v., 246, 333, 352, 362. 

Kelly v. Collector of Imposts, 1181, 1182. 

, Mason v., 327, 328. 

, Nay lor v., 308. 

. Thornton v., 633, 634. 

v. Trimble, 306. 

v. Tucker, 966, 967. 

Kelsey ti. Caselberg, 226, 1020, 1021, 1022. 
Kemp v. Kemp, 651, 652. 

, Kemp v., 651, 652. 

Kempster, Freeman v., 49. 

Kenna and Ritchie's Contract, In re, 208, 209, 

266, 1230. 
Kennedyt;. Palmer, 111, 112, 427. 
Kerr, Kamarooka Gold Mining Co. v., 23. 



Kesterson, Macartney v., 265. 

Kew, Mayor &c. of, Hagelthom v., 865. 

Keys, In re, 545. 

Kiddi). Nilen; In re Nilen, 1332, 1339, 1345, 

1346, 1352. 

v. Kidd, 255, 256. 

, Kidd v., 255, 256. 

Kiel v. Clark, 397. 
King, In re, 65, . 

, Mclnnes v., 244, 245. 

, Macmanamny v., 465, 492, 607, 614, 

615. 

, Richard Hornsby & Sons Ltd. v., 1039. 

The. See also, Rex. 

The, v. Barger, 115, 116, 117, 118. 

v. Beecham ; Ex parte Cameron, 

34, 36, 251. 

, Brookes ;;., 421. 

v. Brown, 56, 57, 70, 71, 



408, 



409. 



Cain v., 1115, 1116. 

Casey v., 1118, 1119. 

v. Creswell, Ex parte Heslop ; 

O'Donnell v. Heslop, 1152, 1153, 1154. 

„ Curley v., 1115. 

v. Dale, 809. 

Hope v., 25, 353. 

v. Lennie, 689. 

, Lewis v., 377. 

v. Licences Reduction Board ; Ex 

parte Carlton Brewery Ltd., 827, 828, 

830, 831, 841. 

u. Licences Reduction Board ; 

Ex parte Martin and Godfrey, 829, 830. 

v. Licences Reduction Board : 



Ex parte Miller, 258, 830. 

v. Mackenzie, 689. 

, Peacock v., 348, 349, 350, 351, 

352, 366, 367.- 

v. Prahran, Mayor <fec. of ; Ex 

parte Morris, 637, 638. 

v. Waters, 625. 

(On the prosecution of Waters) v. 

Registrar of Trade Marks, 1216, 1217. 

: v. Watt ; Ex parte Slade, 35, 38, 

63, 189, 190, 342, 841. 
Kino, Tye & Co. Proprietary Ltd. v., 1047. 
Kitchen & Sons Ltd., Bullows v., 636, 637. 
Knight, Lesser v., 786. 
Knights, In re ; Ex parte Purcell, 703, 704. 
Knipe v. Alcock, 689, 690, 691. 



XXV 



TABLE OF CASES. 



XXVI 



Knott v. McKendriok, 197, 811, 816. 
Knowles, Perpetual Executors and Trustees 

Association of Australia Ltd. v., 1344, 

1345. 
Knox v. Bible, 463, 464, 492. 493, 612, 613, 

614, 615, 616, 697, 698. 
Krygger i: Williams, 139. 



Laing v. Laing, 648. 

, Laing v., 648. 

Lambourn v. Hosken, 847, 849, 850. 

Lamley, Biggs v., 837. 

Lamrock, Brown and Hall's Costs, In re, 267, 

268, 271, 272, 273, 278. 
Land Mortgage Bank of Victoria Ltd. v. Reid 

142, 143, 144, 145, 146, 844. 
Lanfranehi, Jenkins v., 23, 24, 28, 29, 32. 
Lang, Lawson v., 313. 

v. Morrison & Co. Ltd., 191, 202, 203, 

965. 

f Webb, 416, 417. 

Lansell, Liddell v., 908, 909, 913. 
Larkin v. Penfold, 363, 801, 802, 804. 

, Shee v., 497, 498, 777, 778, 885, 886. 

Law, In re, 701. 

Lawes-Wittewronge, Holden v., 212, 213. 

Lawn, In re ; Ballarat Trustees &c. Co. v. 

Perry, 1329, 1330. 
Lawson v. Batchelor, 283, 284. 

v. Lang, 313. 

Leaf, In re ; Donaldson i». Leaf, 495, 1330, 

1331. 
-, Donaldson v. ; In re Leaf, 495, 1330, 

1331. 
Leber, In re ; In re Shackell, 725, 726. 
Le Cocq v. McErvale, 479. 
Lee v. Cunningham, 252, 253. 
Leeder v. Ballarat East, Mayor, &c. of, 253, 

254, 315, 316, 873, 874. 
Lees, Howe v., 390, 391, 393. 
■ In re ; Lees v. National Trustees Co., 

266, 898. 

v. National Trustees Co. ; In re Lees, 

266, 898. 

Leggatt, In re ; Griffith v. Calder, 495, 496, 

1362, 1363. 
Lennie, The King v., 689. 
Lesser v. Knight, 786. 
Lever v. Mowling <fc Son, 16, 22, 26, 1213, 

1215, 1217. 



Levey v. Parker, 282. 

Leviston v. Douglas, 261. 

Levy v. Savings Bank, Commissioners of, 72. 

Lewis, In re ; Gollan v. Pyle, 1242. 

v. The King, 377. 

Licences Reduction Board, The King v. ; Ex 

parte Carlton Brewery Ltd., 827, 828, 

830, 831, 841. 
Ex 



■parte Martin and Godfrey, 829, 830. 



Ex 

parte Miller, 258, 830. 
Liddell v. Lansell, 908, 909, 913. 
Lindberg, Ah Sheung v., 8, 134, 487, 512, 

626, 627, 670, 671, 748. 
Lindley & Co. t>. Pratt, 1021. 
Lind v. Lind, 765. 

, Lind v., 765. 

Linotype Co. Ltd. v. Mounsey, 971, 972. 

Litchfield, Ferris v., 309. 

Livingston v. M'Cartin, 378, 393. 

Li Wan Quai v. Christie, 363, 620, 669, 671, 

672.' 
Lobb, Newnham v., 301, 302. 
Lobley v. Lobley. 791, 792, 802, 883. 
, Lobley v., 791, 792, 802, 883. 



Lohmann, Cheong v., 214. 

Long, Rex v., 361. 

Longley, In re ; Reid v. Silke, 158, 159, 1197, 

1198, 1321. 
Longstaff v. Anderson ; In re Anderson, 1331, 

1332, 1346. 
Looker & Sons v. Doveton, 217, 218. 
Looker v. Mercer, 311, 312, 744. 
Lord, In re ; Hall v. Grimshaw, 1328, 1329. 

, Westcott v., 795, 796. 

Lorimer v. Smail, 714. 

L. Osborn & Co. Ltd. ?'. Davidson Brothers, 

226. 
Lost Licence and Compensation Fees, In re, 

830. 
Lothian, Rickards v. 818, 819, 938. 
Lotteries, Gaming and Betting Act, In re ; 

Ex paHe Gleeson, 610, 711, 899. 
Loughlin, In re ; Acheson v. O'Meara, 494, 

1324. 
Loughnan, National Trustees &c. Co. v. 

In re Malin, 1351, 1352. 
Love, Bayne v., 469, 815. 
v. Bloomfield, 812, 813 



XXVII 



TABLE OF CASES. 



xxvm 



Lovegrove, Taylor v. ; Original Mont de 
Piete Ltd., claimant, 76, 736. 

Lovett, Tatchell v., 993. 

Lubrano, Joske v., 400, 784. 

Lucas v. Graham, 835, 836. 

. , Graham v., 802, 823. 

■ , In re ; Ex parte Mooney, 842. 

v. Mooney, 823, 824. 

, Mooney v., 466, 842. 

Lyell Tharsis Mining Co., No Liability, 163. 

Lynch, Haddon v., 958. 

v. Tognini, 281, 282, 287. 

Lyons, In re ; Grant v. Trustees Executors 
&c. Ltd., 898, 1347, 1348. 

v. Lyons, 656. 

, Lyons v., 656. 

v. Smart, 32. 33, 377. 

Lysaght Ltd. v. Reid Brothers and Russell 
Proprietary Ltd., 498, 1214. 

M 

Macartney, Connolly v., 26, 27, 1038. 

v. Kesterson, 265. 

v. Macartney, 44, 45, 266, 1095, 

1196, 1262, 1263, 1268, 1273, 1274, 1280, 
1341, 1342. 

, Macartney v., 44, 45, 266, 



1095, 1196, 1262, 1263, 1268, 1273, 1274, 

1280, 1341, 1342. 
■ , Macrow & Sons Proprietary Ltd. 

v., 96, 329. 
MacDonald, Reid v., 433. 
MacDonough (or O'Donough), Cohen v., 497, 

512, 513, 776, 777, 791. 
Macfarlane v. McDonald ; In re McConnell, 

711. 
Mackay v. Burley, 285, 303. 

v. Mackay, 512. 

, Mackay v., 512. 

Mackenzie, The King v., 689. 

v. Mackenzie, 646. 

, Mackenzie v., 646. 

Mackie, Rex v., 345, 346. 
Mackinnon v. Hannay, 571. 
Macmanamny v. King, 465, 492, 607, 614, 615. 
Macpherson, Cattanach v., 265, 563, 564. 
Macrow & Sons Proprietary Ltd. v. Davidson, 

313, 314. 
Macartney 

v., 96, 329. 



McArthur v. Stead ; In re Stead, 1325, 1361, 

1362. 
M'Auslan, Rex v., 336. 
McBain, In re, 290, 291. 
McCaffery, Rex v.. 355. 
McCallum v. Purvis, 499, 500, 798, 799, 1298, 

1299. 
MeCann v. Morgan, 606, 607. 
McCarthy v. Williams, 994. 
M'Cartin, Livingston u., 378, 393. 
McConnell, In re, 722, 723, 724, 726, 728, 729. 
In re ; Macfarlane v. McDonald, 



711. 
McCracken, In re, 37, 1058. 
, Webb v., 414, 415. 



McCure v. Fraser, 1191. 
v. Watts, 1191, 1192. 



M'Donald v. Bank of Victoria, 72, 73. 
McDonald, Macfarlane v. ; In re McConnell, 

711. ' 
, Payne v., 1245. 



McErvale, Le Cocq v., 478. 
McGavin v. Gerraty, 210, 211. 
McGee, In re, 715. 
M'Gee v. Wolfenden, 838. 
McGinnis, Whiting v. 416. 
McGoun, In re, 1305., 1306, 1307. 
Mclnnes v. King, 244, 245. 

Thomson v., 194, 196. 



McKay's Application, Re, 258. 

McKay (Garnishee) ; Brown v. Gunn, 693, 

794, 795, 801. 
. Commonwealth v., 115, 116, 117, 



118. 
, Greenway v., 534, 535, 543, 544, 545, 

546. 
McKeand, Mooney v., 833. 
McKee v. Ballarat Trustees, Executors &c. 

Co. Ltd., 828, 829. 
M'Kell, Rider v., 386, 387, 635. 
McKelvey, In re, 599, 600. 
v. Meagher, 53, 121, 135, 136., 369, 

370, 477, 478, 485, 598, 757, 758. 
, O'Donnell v., 599, 797. 



McKendriek, Knott v., 197, 811, 816. 
McKenna v. Dent and Williamson, 774. 
McKenzie. See also, H. McKenzie. 
, Claimant ; McKenzie v. Balchin, 



468, 469. 



Balchin, McKenzie, Claimant, 



468, 469. 



XXIX 



TABLE OF CASES. 



XXX 



McKimmie, O'Connor v., 630, 631. 
MoKinnon v. Colborne, 839. 

v. Gange, 37, 193. 

McLaren v. Bradley, 347. 

McLean Brothers & Rigg Ltd. v. Grice, 149, 

150, 276, 277. 
M'Lennan, Peterson v., 64, 65, 520, 521. 
McLeod's Patent, In re ; Burton v. McLeod, 

33, 34, 37. 
McLeod, Burton v., ; In re McLeod's Patent, 

33, 34, 37. 
McLiney v. Minster, 55, 363, 364, 1003. 
MeMahon v. Johnston, 789, 790, 791. 
McMurchy, In re, 531. 
McNamara, Daniel v., 280, 281. 
M'Namara, Goodson v., 988. 
McNaughton, In re ; In re Transfer of Land 

Act, 1235, 1236. 
McNeill, Rex v., 357, 358. 
McNicol, In re ; Herron u. McNicol, 1328. 

, Herron v. ; In re McNicol, 1328. 

McOwan, Misson v., 389. 

McPherson, In re ; Willan v. Union Trustees 

Co. of Australia Ltd., 1051, 1080. 
McRae v. MeRae, 652, 653, 654. 

, McRae v., 652, 653, 654. 

McSweeney v. Haggar, 797, 798. 

Maddock v. Attorney-General ; In re Dobin- 

son, 1329. 

v. Maddock, 477, 513. 

, Maddock v., 477, 513. 

Maher, Renshaw v., 814. 

Mahoney v. Hosken, 1234, 1235. 

Mailes, In re, 1307. 

" Maizo " and " Maizena " Trade Marks, 

In re ; Robert Harper & Co. u. National 

Starch Co., 15, 16, 274. 
Male v. Male, 667. 

, Male v., 667. 

Malin, In re ; National Trustees &c. Co. v. 

Loughnan, 1351, 1352. 
Mallett, In re ; Colonial Mutual &c. Society 

Ltd. v. Mallett, 931. 
, Colonial Mutual &c. Society Ltd. v. ; 

In re Mallett, 931. 
Malmgren, Gillin v., 987, 1374. 
Malouf, David v., 702, 703. 
Malvern, Mayor &c. of v. Johnson, 291, 306, 

311. 
Mann, In re, 65,' 66. 



Manning v. Tewksbury Freehold Gold Dredg- 
ing Co., 153, 154. 

Manson v. Ponninghaus, 6, 518, 1064, 1065. 

Maritime Insurance Co. Ltd. v. Geelong Har- 
bour Trust Commissioners, 758, 759. 

Marriott v. Hosken, 850. 

Marsden, Rex v., 367. 

Marshall and Hill, Rex v., 338. 

Marshall, Colonial Bank of Australia Ltd. v., 
70, 1033, 1034. 

Martin, In re, 537. 

, Colonial Bank of Australia Ltd. v., 

1033, 1034. 

and Godfrey, Ex parte ; The King v. 

Licences Reduction Board, 829, 830. 

v. Greig, 1031. 

, Porter v., 990, 991. 

v. Rowden, 620. 

v. Turner, 1007. 

, Ex parte ; In re Victorian Silicate 

Brick Co., 143, 144. 

Maslin, In re, 665, 666, 1305. 

Mason, Brahe v. ; In re Thompson, 1265, 
1326, 1335, 1336. 

v. Kelly, 327, 328. 

Matheson v. Grills ; Glenelg, Shire of v. 
Grills, 808, 939, 940. 

Mathew, In re, 528. 

Matoorekos, Graham v., 836. 

Mayhew, Weeks v., 313. 

May, Williams v., 796. 

Meader (G. C.) Proprietary Ltd., In re, 160. 

Meagher, McKelvey v., 53, 121, 135, 136. 369, 
370, 477, 478, 485, 598, 757, 758. 

, In re ; Trustees Executors and 

Agency Co. Ltd. v. Meagher, 1261, 1346, 
1347. 

, Trustees Executors and Agency Co. 



Ltd. v. ; In re Meagher, 1261, 1346, 

1347. 
Melbourne and Metropolitan Board of Works, 

Frencham v., 904, 905. 
Melbourne Flour Milling Co. Proprietary Ltd., 

Power v., In re Blackwood, 147, 148. 
Melbourne Harbour Trust Commissioners v. 

Cuming Smith & Co. Proprietary Ltd., 

1050, 1051. 



Union Steamship &c. Co. Ltd. v., 764. 
Melbourne Hospital, Black v. ; In re Black, 
550, 551, 1336. 



XXXI 



TABLE OF CASES. 



XXXII 



Melbourne Hospital v. Equity Trustees, Execu- 
tors &e. Co. Ltd. ; In re Buckhurst, 99. 

Melbourne, Mayor &c. of, Attorney -General 
v., 428, 429. 

Farrands v., 304, 305, 

317, 318, 380, 381, 459. 

City of v. Howard 



Smith & Co. Ltd., 857, 858. 

Melbourne Steamship Co. v. Moorehead, 68, 
69. 

Melbourne Tramway and Omnibus Co., Hal- 
ford and Wife v., 39, 40, 762, 768, 1065. 

Melbourne Trust Ltd., Commissioner of Taxes 
v., 675, 676. 

Mellington, Ex parte, 825, 827. 

Mellis v. Jenkins, 633. 

Menck, National Phonograph Co. of Aus- 
tralia Ltd. v., 231, 232, 980, 981, 1146. 

Mercer, Looker v„ 311, 312, 744. 

Merchant Service Guild of Australasia v. 
Archibald Currie & Co., 123. 

Merrett, Tungamah, President &e. of Shire 
of, v., 853, 854. 

■ and Whiteman v. Tungamah, Presi- 
dent &c. of Shire of, 92. 

Merriman, Rex v., 342, 343. 

Metropolitan Bank Ltd., In re, 163, 164. 

r. Camberwell, Town 

of, 864, 865. 

Metters, Claimant ; Rogers v. Metters, 312. 

, Rogers v. ; Metters, Claimant, 312. 

Meyer, Hopper v., 234. 

Meynell i\ Pearce, 237, 1220, 1221, 1373. 

Milburn, Rex v., 361. 

Millane, Griffin v., 260. 

Millar, In re, 263. 

Miller, Colman c, 87, 88, 89, 461, 1049. 

, The Commonwealth v., 402, 403. 

— v. Haweis, 20, 21. 

• , Ex parte ; The King v. Licences Reduc- 
tion Board, 258, 830. 

v. National Mutual Life Association of 

Australasia Ltd., 740. 

Millett, Cahill v„ 462, 463, 844. 

Milligan v. Shaw, 984, 1163, 1164. 

Minahan, Potter v., 120, 481, 670, 672. 

Minerals Separation Ltd. v. Potter's Sulphide 
Ore Treatment Ltd., 969, 977. 

Minster, McLiney v., 55, 363, 364, 1003. 

Misson v. McOwan, 389. 
' Mitchell, In re, 545, 664, 724. 



Mitchell, Trustee ; In re Greaves, 726. 
Moffatt v. Hassett, 346, 602. 

v. Webb, 681, 682. 

Montague v. Ah Shen, 496, 613. 
Montgomery v. Gerber, 92, 93. 

v. Montgomery and Andrews, 257 

and Andrews, Montgomery v., 

257. 
Moody, Burvett v., 697, 1185, 1186. 
Mooney v. Anderson, 824, 825. 

, Ex parte ; In re Lucas, 842. 

v. Lucas, 466, 842. 

, Lucas v., 823, 824. 

v. McKeand, 833. 

v. Still, 833. 

Moorabbin Shire v. Soldi, 861. 

Moore & Sons. <See James Moore &. Sons. 

, In re ; Fanning v. Fanning, 1197, 

1203. 

v. Irvine, 1298. 

— v. Phillips, 18. 1 9, 973, 974, 976, 977, 978, 

979. 
, Tipper v., 24, 529. 



Moorehead, Appleton v., 118, 119, 120, 125, 

126, 133, 134, 135, 138. 
, Huddart Parker & Co. Pro- 
prietary Ltd. v ., 118, 119, 120, 125, 126, 

133, 134, 135, 138. 
, Melbourne Steamship Co. v., 68, 

69. 
Moorhead v. Chauncey ; Hays, Claimant, 311, 

312. 
Moreno v. Slinn, 664. 
Morgan, McCann v., 606, 607. 
Moriarty, In re, 533, 534. 
Morison v. Edmiston, 810, 811. 
Morris, In re, 533. 

, Bond v., 450, 451. 

. Ex parte ; The King v. Prahran, 

Mayor &c. of, 637. 638. 
Morrison & Co. Ltd., Lang v., 191, 202, 203, 

965. 
v. Richardson, 221, 222. 



34, 259, 260, 



Morton & Son v. Smith, 927. 
, O'Sullivan v., 34, 35, 

408. 
Moses, Attorney-General v., 609, 610. 
Moss v. Donnelly, 1048. 
Moss v. Jenkins, 764, 765. 
v. Wilson, 26, 479, 734, 735, 748, 924, 

925, 926. 



XXXIII 



TABLE OF CASES. 



XXXIV 



Moule v. Moule, 688, 689. 

■ -, Moule v., 688, 689. 

Moulton, In re, 727. 

Mounsey, Linotype Co. Ltd. v., 971, 972. 

Mount Balfour Copper Mines No Liability v. 

Mount Balfour Mines No Liability, 916, 

917, 1218, 1219. 
Mines No Liability, Mount 

Balfour Copper Mines No Liability v., 

916, 917, 1218, 1219. 
Mount Lyell Consols Mining Co. No Liability 

254, 292, 917, 918, 919. 
Mount Murphy Wolfram Co. No Liability, 

293. 
Mowling & Son, Lever Brothers v., 16, 22, 26, 

1213, 1215, 1217. 
Moylan, In re, 290. 

v. Nolan, 281, 284, 285. 

Muir & Co., Ryan c, 35. 
Muirhead, Riggall v., 931. 
Mulder v. Adami, 803. 

v. Mulder, 653. 

, Mulder v., 653. 

Mullavey, International Harvester Co. of 

America Ltd. v., 262, 263. 
Mumford, Haywood v., 640, 986, 987. 
Munro, In re, 540. 
, In re ; National Trustees Executors 

&c. Co. of Australasia Ltd. v. Dunbar, 

1244, 1337, 1341, 1342, 1343. 
Muntz v. Smail, 58, 452, 589, 590. 
Murphy, Howard v., 993. 

v. Shiells, 802, 803, 1211, 1212. 

Murray, Fitzgerald v., 329. 

Mutual Life and Citizens Assurance Co. Ltd. 

v. National Mutual Fire Association of 

Australia Ltd., 398. 
Myers v. Hooke, 585. 

N 

Napthinb, Delaney v., 620. 

National Mutual Fire Association of Australia 
Ltd., Mutual Life and Citizens Assurance 
Co. Ltd. v., 398. 

Life Association of Aus- 
tralasia Ltd., Australian Widows' Fund 
Life Assurance Society Ltd. v., 232, 233, 
511. 

v. Godrich, 502, 503, 504, 745, 1066. 
Miller v., 740. 



National Phonograph Co. of Australia Ltd. 
v. Menck, 231, 232, 980, 981, 1146. 

National Starch Co., Robert Harper & Co. v., 
15, 16. 

National Trustees Executors &c. Co. of Aus- 
tralasia Ltd. v. Connell ; In re Connell, 
1324, 1325, 1349, 1350. 

v. Daniel White & Co. Ltd. ; In re 
Warren, 709. 

v. Dunbar ; In re Munro, 1244, 1337, 
1341, 1342, 1343. 

General Finance &c. Co. v., 262. 

v. Hassett, 272, 273, 274, 275, 373, 374, 
497, 1043, 1044, 1223, 1224, 1225, 1226, 
1236. 

Lees v. ; In re Lees, 266, 898. 

v. Loughnan ; In re Malin, 1351, 1352. 
Naylor v. Kelly, 308. 

v. Naylor, 663. 

, Naylor v., 663. 

Nelson v. Walker, 422, 423, 424, 1228, 1229. 

Newnham v. Lobb, 301, 302. 

New Normanby Quartz Mining Co. No 

Liability, Bremner v., 914, 915. 
N. Guthridge Ltd., Wilfley Ore Concentrator 

Syndicate Ltd. v., 12, 969, 970. 
Nicholl, Colonial Bank of Australia Ltd. v., 

1030, 1031. 
Nicholls and Skelton, In re, 290. 
. Footscray Quarries Proprietary 

Ltd. v., 431, 432. 
, Rex v., 186. 



Nicholson, Sanderson v., 496. 

Nilen, In re ; Kidd v. Nilen, 1332, 1339, 1345, 

1346, 1352. 
, Kidd v. ; In re Nilen, 1332, 1339, 1345, 

1346, 1352. 
Nissen, Grunden v., 32, 561, 562, 1253, 1256, 

1257, 1258, 1272, 1273. 
Nolan, In re, 286, 287, 293, 294, 295, 716, 724. 
, Moylan v., 281, 284, 285. 



Noonan v. Victorian Railways Commissioners, 

1127, 1128. 
Northcote, Council of Town of, Randall v., 

410, 411. 

c 



XXXV 



TABLE OF CASES. 



XXXVI 



North v. Jamieson, 766. 

North Nuggetty Ajax, Oliver v., 149, 150, 151, 

152. 
Norton, Clarke v., 394, 395, 396. 

or Horton & Sons Ltd. v. Sewell, 157. 

Norwich &c. Insurance Association, Barrett 

v., 51. 



Oaten, Billingham v., 581. 

O'Brien, Rex v., 349, 350. 

v. Victorian Railways Commissioners, 

285, 286. 
Ockerby, Gosman v., 214, 215, 216, 1020. 
O'Connor v. Anderson, 629. 

v. Bini, 367, 368, 629. 

v. Jenner, 631, 632. 

v. McKimmie, 630, 631. 

v. Quinn, 74, 75. 

(Claimant) ; Watson v. Barby, 794. 

O'Donnell v. Dodd, 464, 606. 

v. Heslop ; The King v. Cresswell, 

Ex parte Heslop, 1152, 1153, 1154. 

v. McKelvey, 599, 797. 

v. Perkins, 473. 

v. Smart, 608, 1369, 1373. 

v. Solomon, 604, 605. 



O'Donoghue, Griffith v., 192, 193. 
O'Donough (or MacDonough), Cohen v., 497, 

512, 513, 777, 791. 
O'Hagan and Phillips, Rogerson v., 244, 605, 

606, 612, 616. 
O'Halloran and Equity Trustees Executors 

&e. Co. Ltd., Ex parte ; In re Transfer of 

Land Act, 558, 559. 
O'Hanlon, In re, 730. 

, Cairns v.. 909. 

O'Kane, Rex v., 358, 359. 
Oldham, Smith v., 125. 
Old Jubilee Gold Mines No Liability, 715. 
Oliver v. North Nuggety Ajax Co. No Lia- 
bility, 149, 150, 151, 152. 
v. Staughton ; In re Staughton, 419, 

420, 1205, 1206. 
O'Malley v. Russell, 634, 635. 
O'Meara, Acheson v. ; In re Loughlin, 494 

1324. 

Orchard v. Oriental Timber Corporation Ltd 

327. 
O'Reilly, Hyde v., 936. 



Oriental Timber Corporation Ltd., Orchard v., 

327. 
Orient Steam Navigation Co. Ltd., Henty v., 

223. 
Original Mont de Piete Ltd., Claimant ; 

Taylor v. Lovegrove, 76, 736. 
Ormond v. Joske, 619, 620. 
Osborn & Co. See L. Osborn & Co. 
Osborne, Peacock v., 22, 30, 31, 33. 
Osmand, In re ; Bennett v. Booty, 476, 477, 

481, 499. 
Ostberg, In re, 294, 295, 729. 
O'Sullivan v. Humphries, 777, 798. 
v. Morton, 34, 35, 259, 260, 408. 



Ousley v. Ousley, 642. 
■ , Ousley v., 642. 



Outtrim, Webb v., 14, 137, 138. 
Overton v. Phillips, 1104. 
Ozanne, Crouch v., 112, 113. 



Packer v. Peacock, 183, 184. 
Palmer, Ackerly v., 539, 568. 

, Kennedy v., Ill, 112, 427. 

, Sainsburv v., 993. 



Panton, Reid v., 283. 

Park and Stewart's Contract, Re, 197, 198. 

Parker, Levey v., 282. 

, Rex v., 351, 352, 353, 356. 

Parkinson and Howard, Scott v., 988. 
Parratt, Rhodes v., 774. 
Pater, In re, 715, 716. 

, In re ; In re Robertson, 819. 

Patterson v. Dolman, 191, 194. 

v. Farrell, 220, 221. 

Payne, Gunner v., 348, 630. 
v. McDonald, 1245. 



Peach, Thompson v., 305. 
Peacock, Burrell v., 183, 184. 
. International Harve?ter 



Co. of 
America v., 968, 969, 972, 973. 

v. The King, 348, 349, 350, 351, 352, 

366, 367. 

v. Osborne, 22, 30, 31, 33. 

, Packer v., 183, 184. 

, Pope v., 63, 64. 

» Rex (or Coonan) v., 359, 360. 

, Smart v., 183, 184. 

Pearce, Meynell v., 237, 1220, 1221, 1373. 

Pearson, Rowe Smith & Co. v. Crispin, 303. 

Peatling v. Watson, 390, 392, 393. 



XXXVII 



TABLE OF CASES. 



XXXVIII 



Pelletier v. Porter, 913. 

Pemberton v. Banfield, 24, 25, 574. 

Pendlebury v. Colonial Mutual Life Assur- 
ance Society Ltd., 466, 932. 

Penfold, Larkin v., 363, 801, 802, 804. 

People's Daily Co-operative Newspaper &c. 
Co. Ltd., In re, 162. 

Perera, Rex v., 337. 

Perkins, O'Donnell v., 473. 

Perpetual Executors and Trustees Associa- 
tion of Australia Ltd. v. Hosken, 927, 928. 



v. Johnson 
1262. 


In 


re Johnson, 


565 


1261, 


v. Knowles, 


1344 


, 1345. 








In re Ralston, 555, 556 


557, 


558, 


749. 


v. Simpson, 


264, 


1271, 


1272. 







v. Watts, 302. 
Perry, Ballarat Trustees &c. Co. v. ; In re 

Lawn, 1329, 1330. 
Peterson v. M'Lennan, 64, 65, 520, 521. 
Philby, Rex v., 340. 
Philips v. Cooper, 78. 
Phillips and O'Hagan, Rogerson v., 244, 605, 

606, 612, 616. 
Phillips, Hines v., 448, 58 L 582, 693. 
, Moore v., 18, 19, 973, 974, 976, 977, 

978, 979. 
, Overton v., 1104. 



Pioneer Rubber Works of Australia, Glass v., 

34, 152, 194, 195, 196. 
Pirani, Re, 1171. 
Pittock, Carbines v., 592, 593. 
Ponninghaus, Manson v., 6, 518, 1064, 1065. 
Poole, In re, 708, 709. 

, Cuddigan v., 453. 929. 

Poowong, Shire of v. Gillen, 859. 
Pope v. Peacock, 63, 64. 
Porter, In re, 526, 527, 530. 

v. Martin, 990, 991. 

, Pelletier v., 913. 

v. Taylor, 992, 993. 

Potter v. Broken Hill Proprietary Co. Ltd., 

266, 267. 

, English v., 469, 1304. 

v. Minahan, 120, 481, 670, 672. 



Potter's Sulphide Ore Treatment Ltd., 
Minerals Separation Ltd. v., 969, 977. 

Powell v. Wilson and Mackinnon, 362, 398, 
399, 403, 1019. 

Power, Biggs v., 844. 

v. Melbourne Flour Milling Co. Pro- 



prietary Ltd. ; In re Blackwood, 147, 

148. 
Prahran, Mayor &c. of, The King v., ; Ex 

parte Morris, 637, 638. 
Pratt, Lindley & Co. v. 1021. 
Prebble v. Reeves, 36, 434, 814, 817, 818. 
Preece and Cook's Contract, In re, 207, 208, 

222. 
Prentice v. Amalgamated Mining Employees 

Association of Victoria and Tasmania, 

21, 110. 
Presland, Tye & Co. Proprietary Ltd. v., 314. 
Progress Advertising and Press Agency Co. 

Proprietary Ltd., Commonwealth v., 

1005, 1006. 
Purcell, Ex parte ; In re Knights, 703, 704. 
Purvis, McCallum v., 499, 500, 798, 799, 1298, 

1299. 
Pyle, Gollan v. ; In re Lewis, 1242. 

Q 

Quartz Hill Gold Mining Co. No Liability, 

164, 165. 
Quat Quatta Co., Ex parte ; In re Income 

Tax Acts, 156, 676, 677. 
Quiggan Brothers u. Baker, 197. 
Quinlan v. Hoare ; In re Hoare, 1339, 1340. 
Quinn, O'Connor v., 74, 75. 
Quirk, Densham v., 303. 

R 

Raokham v. Rackham ; Stokes, co-respond- 
ent, 255, 662, 663. 
, Rackham v. ; Stokes, co-respond- 



ent, 255, 662, 663. 
Rae, Woolf v., 304. 
Railton v. Fleming, 299, 300. 
Ralston, In re ; Perpetual Executors &c. 

Association v. Ralston, 655, 556, 557, 

558, 749. 
• , Perpetual Executors &c. Association 



v. ; In re Ralston, 555, 556, 557, 558, 749. 
Randall v. Northcote, Council of Town of, 

410, 411. 
Read, In re, 1305, 1306. 



XXXIX 



TABLE OF CASES. 



XL 



Reddan, Appleby v., 993. 
Redmond, Shillinglaw v., 985. 
Reed, In re ; Reed v. Reed, 1332. 

v. Reed ; In re Reed, 1332. 

, Reed v., In re Reed, 1332. 

Rees v. Downer, 783, 803. 

Reeves, Prebble v., 36, 434, 814, 817, 818. 

Registrar of Titles, Burns v., 849. 

— Trade Marks, The King (on the 

prosecution of Waters) v., 1216, 1217. 
Reid Brothers and Russell Proprietary Ltd., 

Lysaght Ltd. v., 498, 1214. 
Reid, Galsworthy v., 258, 259, 1049, 1050. 
, Land Mortgage Bank of Victoria Ltd. 

v., 142, 143, 844. 

v. MacDonald, 433. 

v. Panton, 283. 

— — v. Silberberg, 202, 965, 966. 

v. Silke ; In re Longley, 158, 159, 1197, 

1198, 1321. 
Renshaw v. Maher, 814. 
Rewell, Ebbells v., 811, 812, 818. 
Rex. See also, King, The. 
v. Ah Sheung, 8, 134, 487, 512, 626, 627. 

670, 671, 748. 

v. Buckle, 340. 

v. Campbell, 357.- 

v. Collins, 364. 

v. Crowe, 335, 336. 

v. Downey, 362. 

v. Elton, 337, 338. 

v. Forrest, 360, 361. 

v. Hibbert, 332. 

v. Hill and Marshall, 338. 

v. Hope, 25, 353, 354, 355. 

v. Jacono, 348. 

v. Kellow, 246, 333, 352, 362. 

v. Long, 361. 

v. Mackie, 345, 346. 

v. M'Auslan, 336. 

v. McCaffery, 355. 

v. McNeill, 357, 358. 

v. Marsden, 367. 

v. Merriman, 342, 343. 

v. Milburn, 361. 

v. Nicholls, 186. 

v. O'Brien, 349, 350. 

v. O'Kane, 358, 359. 

■ v. Parker, 351, 352, 353, 356. 

■ {or Coonan) v. Peacock, 359, 360. 

v. Perera, 337. 



Rex v. Philbey, 340. 

v. Schiffman, 356, 357. 

v. Scott, 344. 

v. Shuttleworth, 37, 38, 507. 

v. Stevenson, 343, 344. 

v. Tieman, 361, 362. 

v. Turnbull, 35, 36, 341, 342, 482, 1120. 

v. Watson, 338, 339. 

v. Waugh, 337. 

Rhodes v. Parratt, 774. 

Richard Hornsby & Sons Ltd. v. King, 1039. 

Richards, In re, 263, 264, 529. 

v. Jager, 62, 459. 

, Jager v., 62, 1015. 

v. Richards, 656, 657. 

. Richards v., 656, 657. 

Richardson v. Austin, 895, 896, 1372, 1373. 

, Morrison v., 221. 222. 

v. Richardson, 663. 

, Richardson v., 663. 

Richmond, Mayor &c. of v. Federal Building 

Society, 845. 
Rickards v. Lothian, 818, 819, 938. 
Rider v. Dunn, 630, 632, 633. 
v. M'Kell, 386, 387, 635. 



Reily v. Biggs, 839, 840. 

Riggall, Bayne v., 1, 2, 1034, 1035. 

v. Muirhead, 931. 

Ritchie and Kenna's Contract, In re, 208, 209. 

266. 
Roach v. Victorian Railways Commissioners, 

1052, 1053. 
Robert Harper & Co. v. National Starch Co., 

15, 16. 
Robertson v. Abadee, 628, 629. 

v. Fink, 930, 931. 

, In re ; In re Pater, 819. 

v. Rohs, 54, 55. 

Robinson, Bolton v., 410. 

, Christie v., 27, 218. 

, Ex parte ; In re Simpson and 

Fricke, 1027, 1028. 
Rodd and Rogers' Contract, Re, 198. 
Rogers, Adams v., 884, 885. 

and Rodd's Contract, Re, 198. 

v. Matters ; Metiers, Claimant, 312. 

Rogerson v. Phillips and O'Hagan, 244, 605, 

606, 612, 616. 
Rohs, Robertson v., 54, 55. 
Ronald v. Harper, 28, 29, 186, 187, 327, 388, 

391, 392, 393, 950, 951, 1066. 



XLI 



TABLE OF CASES. 



XLII 



Rosenthal, In re ; Rosenthal v. Rosenthal, 32, 

415, 416, 417, 1079. 
v. Rosenthal ; In re Rosenthal, 32, 

415, 416, 417, 1079. 
, Rosenthal v. ; In re Rosenthal, 32, 

415, 416, 417, 1079. 
Ross, In re, 727, 730, 731. 

v. Ross, 667, 881, 882. 

Ross v., 667, 881, 882. 

v. Ross ; In re Dingwall, 265, 266. 

, Ross v. ; In re Dingwall, 265, 266. 

Rowden, Martin v., 620. 

Rowe, International Harvester Co. of Amer- 
ica v., 76. 
Roxby, Jones v., 992. 
Royal Bank of Australia Ltd., Caulfield, 

Elsternwiek and Malvern Tramway Co. 

v., 153. 
Royal Finance Co. v. Summers, 384. 
Rubber Inventions Co. Ltd., In re, 161. 
Ruddell v. Ruddell, 256, 650, 668. 

. Ruddell v., 256, 650, 668. 

Ruse, Charlton, President &c. of Shire of v., 

635, 636, 744, 1186. 
Russ v. Carr, 101, 455, 882, 883. 
Russell, O'Malley v., 634, 635. 

v. Sheehan, 621. 

R. W. Cameron & Co., H. Beecham & Co. v., 

225, 226. 
Ryan v. Foran, 609. 

v. Muir & Co., 35. 

-v. Swan Hill, President &c. of, 450, 1007. 



Sabblbebg, In re, 540. 

Sack v. Wolstencroft, 517. 

Sainsbury v. Palmer, 993. 

Salmon, Hiscock v., 1044. 

Salvitis Proprietary Co., Ex parte, 1215, 1216. 

Sanderson v. Dunn, 94. 

v. Nicholson, 496. 

Sandhurst and Northern District Trustees 
&c. Co. Ltd., Bendigo and Country Dis- 
tricts Trustees &c. Co. Ltd. v., 142, 1218. 



v. Canavan, 815, 816. 



. v. Golden ; In re Borger, 1348. 
Sands, Goldsmith v., 687, 688. 

& McDougall Ltd. v. Whitelaw, 1032, 

1038. 



Sargood Brothers v. The Commonwealth, 

374, 375, 376, 377, 1367. 
Savage, Union Bank of Australia Ltd. v., 560, 

566, 567, 702. 
Savings Bank, Commissioners of, Levy v., 72. 
Sehiffman, Brown v., 993, 994. 
-, Rex v., 356, 357. 



Schroder v. Hebbard, 80, 81. 
Schutze, In re, 287, 725. 
Scott v. Cawsey, 1193, 1371. 

v. Howard and Parkinson, 988. 

, Rex v., 344. 

Seven Hills Estate Co.'s Case ; In re Income 

Tax Acts, 677, 678. 
Sewell, Norton or Horton & Sons Ltd. v., 157. 
Shackell, In re ; In re Leber, 725, 726. 
v. Howe, Thornton & Palmer, 57, 



58, 60. 
Shanghai Club, In re ; In re Ah Pow ; Ex 

parte Gleeson, 610, 611, 612. 
Sharpe, In re, 726. 
Sharp, Ahem v., 865, 866. 
. Hobson v. ; In re Hobson, 259, 565, 



1321, 1326, 1351, 1352. 

Shaw v. David Syme & Co., 409. 

, Milliganw., 984, 1163, 1164. 

Sheahan, Carlton and United Breweries 
Proprietary Ltd. v., 304. 

Sheehan, Russell v., 621. 

Shee v. Larkin, 497, 498, 777, 778, 885, 886. 

Shelton, Re, 1120. 

Shiells, Murphy v., 802, 803, 1211, 1212. 

Shillinglaw v. Carroll, 499, 593, 594. 

v. Redmond, 985. 

Shuttleworth, Rex v., 37, 38, 507. 

Silberberg, Reid v., 202, 965, 966. 

Silke, Reid v. ; In re Longley, 158, 159, 1197, 
1198, 1321. 

Simeon, In re, 541. 

Simpson and Fricke, In re ; Ex parte Robin- 
son, 1027, 1028. 

, Perpetual Executors and Trustees 

Association v., 264, 1271, 1272. 

• , Spence v., 307, 308. 

Sims v. Anderson, 77, 78. 

Sinclair v. Sinclair, 1032. 

, Sinclair v., 1032. 



Sinn, Taylor v., 824, 825, 826, 827. 
Skelton and Nicholls, In re, 290. 
Skerritt, Hickling v., 473, 696, 697, 803, 804. 
Skinner, Duncan v., 572, 573. 



XLIII 



TABLE OF CASES. 



XLIV 



Skinner, Iredell v., 782. 

Slade, Ex parte ; The King v. Watt, 35, 38, 

63, 189, 190, 342, 841. 
Slinn, Moreno v., 664. 
Sloan and Day, In re, 289. 
Smail and Barker, In re, 722. 

, Cox v., 58, 59, 459, 712, 713. 

, Muntz v., 58, 452, 589, 590. 

• , Lorimer v., 714. 

v. Zimmerman, 381. 

Smart v. Buchanan, 301, 306, 307. 

, Lyons v., 32, 33, 377. 

, O'Donnell v., 608, 1369, 1373. 

v. Peacock, 183, 184. 

Smith, In re, 536, 691. 

, Borsum v., 87, 88, 1127. 

, Bruen v., 191, 192. 

v. Chisholm, 291. 

, Cock v., 13, 23, 1263, 1264. 

, In re ; Edwards v. Smith, 1198, 1199. 

• , Edwards v. ; In re Smith, 1198, 1199. 

■ v. Foley, 1037. 

v. Garrett ; In re Garrett, 566. 

, Morton & Son v., 927. 

v. Oldham, 125. 

, In re ; Smith v. Smith, 1246. 

v. Smith ; In re Smith, 1246. 

, Smith v. ; In re Smith, 1246. 

, In re ; Smith v. Smith, 97, 548. 

v. Smith ; In re Smith, 97, 548. ' 

Snowball, Be, 1157, 1158. 

Soldi, Moorabbin Shire v., 861. 

Solomon, O'Donnell v., 604, 605. 

South Australia, State of v. Victoria, State of, 

126, 127, 169. 
South Melbourne, City of, Stafford v., 193. 
Spencer, Claimant ; Wrigglesworth v. Colli s, 

75. 
Spence v. Simpson, 307, 308. 
Stafford v. City of South Melbourne, 193. 
Stamps Acts, In re, 1181. 
Stanley's Application, In re, 267. 
Stapleton v. Bell ; Stapleton v. Davis, 466, 

959. 
v. Davis ; Stapleton v. Bell, 466, 

959. 
Starch Board, In re, 575, 576, 577, 578. 
Staughton, In re, 1164, 1203. 
■ , In re ; Oliver v. Staughton, 419, 

420, 1205, 1206. 



Staughton, Oliver v. ; In re Staughton, 419, 

420, 1205, 1206. 
Stead, In re ; McArthur v. Stead, 1325, 1361, 

1362. 
, McArthur v. ; In re Stead, 1325, 1361, 

1362. 
Steane v. Whitchell, 694, 695. 
Sternberg v. Egan, 79. 
Stevenson, Rex v., 343, 344. 
Stevens, In re ; Trustees Executors &c. Co. 

Ltd. v. Teague, 264, 1352,'1353, 1355, 

1356. 
Stewart and Park's Contract, Re, 197, 198. 

, Brisbane v., 765, 766. 

, Ferrier v., 76, 77. 

, Hunter v., 364, 783. 

, Jenkins v., 1323, 1339. 

v. Stewart, 648, 649. 

, Stewart v., 648, 649. 



Stiggants v. Joske, 401. 

Still, Mooney v., 833. 

Stokes, co-respondent ; Rackham v. Rackham 

255, 662, 663. 
Storey, Australian Widows' Fund &c. Society 

Ltd. v., 1030, 1031. 
, Trengrouse & Co. v., 28, 934. 



Strange v. Strange, 479, 784, 785. 
, Strange v., 479, 784, 785. 



Strempel, Jarrett v., 274, 275. 
Strong v. Strong, 654, 655. 
. Strong v., 654, 655. 



Stroud, In re ; Bell v. Stroud, 550, 1323, 

1335, 1336, 1356, 1357, 1358, 1359. 
, Bell v. ; In re Stroud, 550, 1323, 

1335, 1336, 1356, 1357, 1358, 1359. 
Stratt, Joske v., 401, 402. 
Stuckey v. Trustees, Executors and Agency 

Co. Ltd., 3, 4. 
Summers, In re, 386, 729. 

, Green v., 815. 

, Royal Finance Co. v., 384. 

Summons for Directions and Interrogatories, 

In re, 406, 1053. 
Suter, In re, 540, 541. 
Sutherland, In re, 478, 546. 
-, Trustees Executors and Agency 

Co. Ltd. v., 1331. 
Sutton and The Federal Building Society's 

Contract, In re, 199. 
Sutton, Co-respondent ; Garrick v. Garrick, 

254, 255, 297. 



XLV 



TABLE OF CASES. 



XLVI 



Swan, Ex parte ; In re Hawthorn, Mayor 

&e. of City of, 854, 855. 
Swan Hill, President &c. of, Ryan v., 450, 

1007. 
Swanson v. Emmerton, 1174, 1175, 1201, 

1263. 
Swinburne v. David Syme & Co., 38, 39, 379, 

459, 759, 762, 763, 768, 769, 770, 1050, 

1098. 
Syme. See also, David Syme. 

, Webb v., 683, 684, 685. 

Synot, In re, 532. 



Tatchell v. Lovett, 993. 

Taylor v. Lovegrove ; Original Mont de Piete 

Ltd., Claimant, 76, 736. 

, Porter v., 992, 993. 

v. Sinn, 824, 825, 826, 827. 

, Verga v. ; In re Warren, 1242. 

Teague, Trustees Executors and Agency Co. 

Ltd. v. ; In re Stevens, 264, 1352, 1353, 

1355, 1356. 
Templeton, Drake v., 928. 
Tewksbury Freehold Gold Dredging Co., 

Manning v., 153, 154. 
Thomas and McKenzie's Contract, In re, 

1294. 
, Co-respondent ; Harvey v. Harvey, 

653, 654. 
Thompson, In re ; Brahe v. Mason, 1265, 

1326, 1335, 1336. 

v. Peach, 305. 

Thomson v. Mclnnes, 194, 196. 

Thornton v. Kelly, 633, 634. 

Tieman, Rex v., 361, 362. 

Tietyens, In re, 1171. 

Timm, In re, 544. 

Tinkler, Ex parte ; In re Hilliard, 56. 

Tipper v. Moore, 24, 529. 

v. Wathen, 312, 313. 

Tognini v. Hargreaves, 473. 

, Lynch v., 281, 282, 287. 

Tong, In re ; Tong v. Trustees, Executors 

and Agency Co. Ltd., 1202, 1203, 1204, 

1205. 
v. Trustees, Executors and Agency Co. 

Ltd. ; In re Tong, 1202, 1203, 1204, 1205. 
Townsing v. Egan, 281. 
Trainor v. Younger, 572. 



Transfer of Land Act, In re ; Ex parte Ander- 
son, 1223. 
, In re ; Ex parte Corona- 



tion Syndicate Mining Co., 153. 
, In re ; Ex parte Dana- 



her, 559, 560, 1227, 1228. 
. In re ; Ex parte Ed- 



monds and Harrison, 1228, 1248, 1249. 
, In re ; Ex parte Equity 



Trustees Executors &c. Co. Ltd. and 
O'Halloran, 558, 559. 
, In re ; In re Mc- 



Naughton, 1235, 1236. 
Trapp, Couche & Co. v. H. McKenzie Ltd., 

505. 
Travers, Wilson v., 781, 806, 988, 989, 990, 

1367, 1372, 1374. 
Tredrea, Devlin v., 302, 304. 
Trengrouse & Co. v. Story, 28, 934. 
Trethewie, In re, 535, 536. 
Trewartha v. Confidence Extended Co., 769, 

770. 
Trimble, Kelly v., 306. 
Trustees Executors and Agency Co. Ltd., 

aBeckett v., 1160, 1161, 1162. 



v. Eastwood ; In re Hudson, 


1348. 




v. Fatt ; In re Wallace, 1329. 


Grant v. ; In re Lyons, 898, 


1347, 


1348. 


v. Meagher ; In re Meagher, 
1347. 


1261, 


1346, 


Stuckey v., 3, 4. 


v. Sutherland, 1331. 


v. Teague ; In re Stevens, 
1353, 1355, 1356. 


264, 


1352, 


Tong v. ; In re Tong, 1202, 
1205. 


1203, 


1204, 



v. Webster, 897, 898. 
Tucker, Kelly v., 966, 967. 
Tulk v. Tulk, 645, 646, 647, 648. 

, Tulk v., 645, 646, 647, 648. 

Tungamah, President &c. of Shire of, Merrett 

and Whiteman v., 92, 853, 854. 



XLVII 



TABLE OF CASES. 



XLVIII 



Turnbull, Rex v., 35, 36, 341, 342, 482, 1120. 
Turner, Martin v., 1007. 
Tuthill, Cochrane v., 695, 870, 871. 
• Tye & Co. Proprietary Ltd. v. Kino, 1047. 

: v. Presland, 314, 

1047. 



Union Bank of Australia Ltd. v. Savage, 560, 

566, 567, 702. 
v. Whitelaw, 72, 

529, 560, 566, 567, 587, 588, 589, 702, 

1258, 1259, 1373. 
Union Steamship &c. Co. Ltd. v. Melbourne 

Harbour Trust Commissioners, 764. 
Union Trustee Co. of Australia, Willan v. ; In 

re McPherson, 1051, 1080. 



Vance, In re ; Ex parte Carr, 1251, 1252. 
Vanderspan v. Visbord, 983. 
Varawa v. Howard Smith & Co. Ltd., 1, 28, 
404, 405, 891, 1023. 

, Howard Smith & Co. Ltd. v., 25, 26. 

Varley Brothers v. Woolley, 1052. 

Verga v. Taylor ; In re Warren, 1242. 
Vickers, In re ; Viokers v. Viekers, 1341. 

v. Vickers ; In re Vickers, 1341. 

, Vickers v. ; In re Vickers, 1341. 

Victorian Coal Miners Association, Jum- 

bunna Coal Mine No Liability v., 16, 17, 

18, 121, 122, 123. 
Victorian Railways Commissioners, Bourchier 

v., 940, 941. 

Briscoe & 



Brock v., 
v. Brown, 
v. Camp- 

, Connanu., 
Crouch v., 

, Fraser v., 

Gleeson v. 

Noonan 



Co. 


>., 45 


46, 


47. 


» 


307. 


12. 


bell, 


941. 








308, 


309. 






J 


56, 


308. 








460, 


461, 


480, 


939, 


943. 


1128. 



v., 1127, 1128. 



Victorian Railways Commissioners, O'Brien 

v., 285, 286. 
_ , Roach v., 



1052, 1053. 
Victoria, State of, South Australia, State of 

v., 126, 127, 169. 
Silicate Brick Co., In re ; Ex parte 



Martin, 143, 144, 145, 146. 

United Co., Bremner v., 914. 

. Goodenough v., 914. 



Vincent v. Curran, 773, 774, 905. 
Visbord, Vanderspan v., 983. 

w 

Waldek v. Cutts, 78, 1099, 1100, 1101, 1106. 
Walker, Nelson v., 422, 423, 424, 1228, 1229. 
Wallace, In re ; Trustees Executors and 

Agency Co. Ltd. v. Fatt, 1329. 
Ward, Henderson v., 62, 63. 
Ware, In re, 727, 728. 
Warnecke v. Equitable Life Assurance 

Society of the United States, 387. 504. 
Warne, Hamilton v., 704, 705, 706. 
Warren, In re ; National Trustees Executors 

&c. Co. v. Daniel White & Co. Ltd., 709. 
, In re ; Verga v. Taylor, 1242. 



Waters, The King v., 625. 

(on the prosecution of), The King v. 



Registrar of Trade Marks, 1216, 1217. 
Wathen, Tipper v., 312, 313. 
Watson v. Barby ; O'Connor (Claimant), 794. 
In re ; Cain v. Watson, 1243, 1244, 

1252, 1253, 1335, 1338, 1353, 1354, 1355. 
. Cain v. ; In re Watson, 1243, 1244, 



1252, 1253, 1335, 1338, 1353, 1354, 1355. 

, Chomley v., 261, 378, 379, 388. 

, Peatling v., 390, 392, 393. 

, Rex v., 338, 339. 

v. Watson, 286. 

, Watson »., 286. 

Watt v. Watt, 658. 

, Watt v., 658. 

, The King v. ; Ex parte Slade, 35, 38, 

63, 189, 190, 342, 841. 
Watts, In re, 385, 386. 

, McCure v., 1191, 1192. 

, Perpetual Executors and Trustees 

Association of Australia v., 302. 
Waugh, Rex v., 337. 
Waxman, Bear v., 267, 292. 



XL1X 



TABLE OF CASES. 



Webb v. Australian Deposit and Mortgage 
Bank Ltd., 154, 674, 675, 1372. 

, Brown v., 69. 

v. Crouch, 12, 13. 

v. Flint, 12, 13. 

, Flint v. ; Baxter v. Commissioners of 

Taxation, 10, 11, 12, 14, 15, 19, 20, 114, 
137, 138, 901. 

, Lang v., 416, 417. 

v. McCracken, 414, 415. 

, Moffatt v., 681, 682. 

v. Outtrim, 14, 137, 138. 

v. Syme, 683, 684, 685. 



Webster, Trustees Executors and Agency Co. 
v., 897, 898. 

Weedon v. Davidson, 867, 868. 

Weeks v. Mayhew, 313. 

Weir, Re, 1156, 1157. 

Wells, Freeman v., 813. 

Welsbach Light Co. of Australasia Ltd., 
Cullen v., 460, 970, 971. 

West v. Armstrong, 1192. 

, Dight v., 86, 87. 

v. Hedgeland, 207. 

Westcott v. Lord, 795, 796. 

WhitcheU, Steane v., 694, 695. 

Whitelaw, In re, 517, 700. 

, Sands & McDougall v., 1032, 1038 

— . Union Bank of Australia Ltd. v., 

72, 529, 560, 566, 567, 587, 588, 589, 702, 
1258, 1259, 1373. 

Whitelock, House v., 217. 

Whiteman and Merrett v. Tungamah, Presi- 
dent &c. of Shire of, 92. 

Whiting v. MeGinnis, 416. 

Whybrow, Ex parte ; Re Boot Trade Em- 
ployees Federation, 17, 114, 115, 121, 
122, 123, 124, 136, 137, 439, 440, 441, 
442, 1113. 

Wild, Crowson v. ; In re Green, 494, 495, 
1340. 

Wilfley Ore Concentrator Syndicate Ltd. v. 
N. Guthridge Ltd., 12, 970. 

Wilkie v. Equity Trustees Executors and 
Agency Co. Ltd., 1201, 1202. 

W'H an v - Union Trustee Co. of Australia 
Ltd. ; In re McPherson, 1051, 1080. 

Williams v. Ahem, 1051, 1052. 

v. Alcock, 308. 

, Krygger v.. 139. 

r, McCarthy v., 994. 



Williams v. May, 796. 

Williamson and Dent, McKenna v., 774. 

v. The Commonwealth, 380, 1116, 



1117, 1118. 
Willis, Woolf v., 268, 279. 
Wilson, In re, 715. 

Wilson and Mackinnon, Bayne v., 305, 306. 
, Powell v., 362, 398, 



399, 403, 1019. 

— v. Cole, 782. 

— v. Dun's Gazette, 381, 393, 394, 396, 
397. 

— v. Equity Trustees Executors &c. Co. 
Ltd., 845. 

— , Moss u., 26, 479, 734, 735, 742, 924, 



925, 926. 
v. Travers, 781, 806, 988, 989, 990, 

1367, 1372, 1374. 
Wimble v. Foulsham, 344. 
Winter, In re ; Winter-Irving v. Winter, 280, 

562, 563. 
Winter-Irving v. Winter ; In re Winter, 280, 

562, 563. 
Winter, Winter- Irving v. ; In re Winter, 280, 

562, 563. 
Wolfenden, M'Gee v., 838. 
Wolstencroft, Sack v., 517. 
Wood, In re, 726, 727. 
Woods v. Woods,- 663. 

, Woods v., 663. 

Woolf v. Rae, 304. 
v. Willis, 268, 279. 



Woolley, Varley Brothers v., 1052. 
Worland v. Worland, 650. 
, Worland v., 650. 



Wrigglesworth v. Collis ; Spencer, Claimant, 

75. 
Wright v. Wright, 479, 480. 
. Wright v., 479, 480. 



X 



X., Re, 1170, 1171. 



Yan Yean Hotel, Re, 831. 
Young, Davies v., 838. 
Younger, Trainor v., 572. 

z 

Zimmerman, Smail v., 381. 



OASES 



FOLLOWED, NOT FOLLOWED, APPROVED, OVERRULED, QUESTIONED, 
EXPLAINED, DISTINGUISHED, AND COMMENTED UPON. 



Aarons, In re, 6 V.L.R. (LP. & M.), 56 ; 
2 A.L.T., 51, distinguished. In re Hickman, 
31 A.L.T. (Supplement,), 10 ; 15 A.L.R. (C.N.) 
21. 

Abbott v. Morris, 24 A.L.T., 228 ; 9 A.L.R., 
96, not followed as to costs of trustee in 
regard to his commission. Macartney v. 
Kesterson, (1907) V.L.R., 226; 28 A.L.T., 
170; 13 A.L.R., 14. 

Adeock, In re, 26 A.L.T., 127 ; 10 A.L.R., 
268, approved and applied. In re Simeon, 
(1910) V.L.R., 335 ; 32 A.L.T., 25 ; 16 
A.L.R., 362. 

Adie, Clark v., 2 App. Cas., 315, applied. 
Moore v. Phillips, 4 C.L.R., 1411 ; 13 A.L.R., 
424. 

Agar-Ellis, In re, 10 Ch. D., 49, considered 
and applied. Goldsmith v. Sands, 4 C.L.R., 
1648; 13 A.L.R., 601. 

Ahern v. Cathcart, (1909) V.L.R., 132 ; 30 
A.L.T., 156; 15 A.L.R., 67, overruled. 
President disc, of Shire of Tungamah v. Mer- 
rett, 15 C.L.R., 407 ; 18 A.L.R., 511. 

Ah Loey, Montgomery v., 2 A.L.R. , 207, 
distinguished. English v. Potter, (1908) 
V.L.R., 632 ; 30 A.L.T., 91 ; 14 A.L.R., 559. 

Ainslie, Murphy v., (1905) V.L.R., 350; 
26 A.L.T., 202; 11 A.L.R., 163, applied. 
In re Buckhurst ; Equity Trustees Executors 
and Agency Co. v. Buckhurst, (1907) V.L.R. , 
252 ; 28 A.L.T., 190 ; 13 A.L.R., 74. Also, 
In re Staughton ; Oliver v. Staughton, (1910) 
V.L.R., 415 ; 32 A.L.T., 63 ; 16 A.L.R., 443. 



Akeroyd's Settlement, In re ; Roberts v. 
Akeroyd, (1893) 3 Ch., 363, distinguished. 
In re Lyons ; Grant v. Trustees Executors 
&c. Go. Ltd., (1908) V.L.R., 190 ; 29 A.L.T., 
202 ; 14 A.L.R., 147. 

Alexander v. Jenkins, (1892) 1 Q.B., 571, 
considered. Livingston v. M'Cartin, (1907) 
V.L.R., 48 ; 28 A.L.T., 131 ; 12 A.L.R., 524. 

Alexander v. Steinhardt, Walker & Co., 
(1903) 2 K.B., 208, applied by Isaacs, J. 
Muntz v. Smail, 8 C.L.R., 262; 15 A.L.R., 
162. 

Allen v. Flood, (1898) A.C., followed. 
Bond v. Morris, (1912) V.L.R., 351 ; 34 
A.L.T., 52 ; 18 A.L.R., 348. 

Allen, Sprague v., 15 T.L.R., 150, followed. 
In re Bennett Brothers, (1910) V.L.R., 51; 
31 A.L.T., 148 ; 16 A.L.R., 30. 

Amos v. Fraser, 4 C.L.R., 78 ; 12 A.L.R., 
481, considered. Lever Brothers Ltd. v. G. 
Mowling & Son, 30 A.L.T., 144 ; 15 A.L.R., 
40. 

Anderson v. Carter, 20 V.L.R., 246; 1ft 
A.L.T., 49, distinguished. International 
Harvester Co. of America v. Rowe, (1909) 
V.L.R., 244 ; 30 A.L.T., 201 ; 15 A.L.R., 
212. 

Anderson, Wilson v., 26 A.L.T. (Supple- 
ment), 5 ; 11 A.L.R. (C.N.), 35, explained. 
Townsing v. Egan, 29 A.L.T. (Supplement), 
29 ; 14 A.L.R. (C.N.), 18. 

Andrew, Gower v., 43 Am. R., 242, ap- 
proved. Prebble v. Beeves, (1910) V.L.R., 
88; 31 A.L.T., 114 ; 15 A.L.R., 631. 



LIH 



CASES FOLLOWED, OVER-RULED, &c. 



LIV 



Anglo-American Brush Electric Light Cor- 
poration v. King, Brown & Co., (1892) A.C., 
367, applied. N. Guthridqe Ltd. v. Wilfley 
Ore Concentrator Syndicate Ltd., 3 C.L.R., 
583 ; 12 A.L.R., 398. 

Antony v. Dillon, 15 V.L.R., 240, discussed. 
Bell v. Clarke, (1906) V.L.R., 567; 28 
A.L.T., 24 ; 12 A.L.R., 308. 

Armitage, Clarazite Manufacturing Co. 
Ltd. v. (No. 1), 30 A.L.T. (Supplement), 21 ; 
15 A.L.R. (C.N.), 6, disapproved. Clarazite 
Manufacturing Co. Ltd. v. Armitage (No. 2), 
30 A.L.T. (Supplement), 22 : 15 A.L.R. 
(C.N.), 6. Also, not followed, Lee v. Cunning- 
ham, 32 A.L.T. (Supplement), 4 ; 16 A.L.R. 
(C.N.), 1. 

Armytage, Davidson v., 4 C.L.R., 205 ; 12 
A.L.R., 538, discussed. Kelly v. Collector of 
Imposts, 29 A.L.T., 91 ; 13 A.L.R., 613, 
discussed. Kelly v. Collector of Imposts, 29 
A.L.T., 91 ; 13 A.L.R., 613. 

Armytage, Davidson v., 4 C.L.R., 205 ; 
12 A.L.R., 538, explained and distinguished. 
Davidson v. Chimside, 7 C.L.R., 324 ; 14 

A.L.R., 686. 

« 

Arnold, Booth v., (1895) 1 Q.B., 571, con- 
sidered. Livingston v. M' Cartin, (1907) 
V.L.R., 48 ; 28 A.L.T., 131 : 12 A.L.R., 524. 

Artificial Manure Board, In re, (1905) 
V.L.R., 19 ; 26 A.L.T., 87 ; 10 A.L.R., 230, 
approved. In re the Fellmongers Board, 15 
A.L.R., 225. 

Ashforth, In re, (1905) 1 Ch., 535, followed. 
In re Malin ; National Trustees &c. Co. v. 
Loughnan, (1912) V.L.R., 259; 34 A.L.T., 
30; 18 A.L.R., 274. 

Ashley v. Ashley, 24 V.L.R., 220; 4 
A.L.R., 154, explained. The King v. Watt ; 
Ex parte Slade, (1912) V.L.R., 225 ; 33 
A.L.T., 222 ; 18 A.L.R., 158. 

Asten v. Asten, (1894) 3 Ch., 260, followed. 
In re Leaf; Donaldson v. Leaf, (1907) V.L.R., 
278; 29 A.L.T., 54; 13 A.L.R., 148. 

Atkinson v. Morris, (1897) P., 40, followed. 
Gair v. Bowers, 9 C.L.R., 510 ; 15 A.L.R., 
494. 



Attorney-General for New South Wales v. 
Brewery Employees Union of New South 
Wales, 6 C.L.R., 469 ; 14 A.L.R., 565, ap- 
plied. Huddart Parker & Co. Proprietary 
Ltd. v. Moorehead ; Appleton v. Moorehead, 
8 C.L.R., 330 ; 15 A.L.R., 241 

Attorney-General v. Dean of Christ Church, 

(1826) 2 Russ., 321, distinguished. Foms- 
gard v. Fomsgard, (1912) V.L.R., 209 ; 34 
A.L.T., 11 ; 18 A.L.R., 220. 

Attorney-General v. Hooper, (1893) 3 Ch., 
483, distinguished. Bremner v. New Nor- 
manby Quartz Mining Co., No Liability, 
(1910) V.L.R., 72 ; 31 A.L.T., 140 ; 16 
A.L.R., 25. 

Attorney-General, Monkton v., 2 R. & My., 
147, not followed. In re Osmand ; Bennett 
v. Booty, (1908) V.L.R., 67 ; 29 A.L.T., 168 ; 
13 A.L.R., 728. F.C., affirming Cussen, J., 
(1906) V.L.R., 455; 27 A.L.T., 218; 12 
A.L.R., 256. 

Bagot, In re ; Paton v. Ormerod, (1893) 3 
Ch., 348, followed. In re Stead, (1908) 
V.L.R., 10 ; 29 A.L.T, 155 ; 13 A.L.R., 683. 

Ball, In re, L.R. 8 C.P., 104, explained. 
Pope v. Peacock, (1906) V.L.R., 667 ; 28 
A.L.T., 63 ; 12 A.L.R., 440. 

Bank of New Zealand v. Simpson, (1900) 
A.C., 182, followed. Bruton v. Farm and 
Dairy Machinery Co. Proprietary Ltd., (1910) 
V.L.R., 196; 31 A.L.T., 200; 16 A.L.R., 
241. 

Bank of Scotland, Logan v. (No. 2), (1906) 
1 K.B., 141, considered and applied. Mari- 
time Insurance Co. Ltd. v. Geelong Harbour 
Trust Commissioners, 6 C.L.R., 194 ; 14 
A.L.R., 424. 

Banks v. Hollingsworth, (1893) 1 Q.B., 442, 
followed. Ronald v. Harper, (1908) V.L.R., 
674 ; 30 A.L.T., 72 ; 14 A.L.R., 472. 

Barber, R. v., 3 A.L.R. (C.N.), 21, approved. 
R. v. Turnbull, (1907) V.L.R., 11 ; 28 A.L.T., 
103 ; 12 A.L.R., 551. 

Barger, The King v., 6 C.L.R., 41 ; 14 
A.L.R., 374, applied. Huddart Parker tfc 
Co. Proprietary Ltd. v. Moorehead ; Apple- 
ton v. Moorehead, 8 C.L.R., 330 ; 15 A.L.R., 
241. 



LV 



CASES FOLLOWED, OVER-RULED, &c. 



LVI 



Barker v. Henty, 29 V.L.R., 293; 25 
A.L.T., 34; 9 A.L.R., 160, distinguished. 
Annear v. Inship, (1910) V.L.R., 235 ; 31 
A.L.T., 220 ; 16 A.L.R., 276. 

Barns v. Queensland National Bank, 3 
C.L.R., 925, followed. Pendlebury v. Colonial 
Mutual dhc. Society Ltd., 13 C.L.R., 676 ; 18 
A.L.R., 124. 

Bartley, Peterswald v., 1 C.L.R., 497, 
principles of interpretation applied. Hud- 
dart Parker & Go. Proprietary Ltd. v. Moore- 
head ; Appleton v. Momehead, 8 C.L.R., 330 ; 
15 A.L.R., 241. 

Baseley, Huguenin v., 14 Ves., 273, con- 
sidered. Union Bank of Australia Ltd. v. 
Whilelaw, (1906) V.L.R., 711 ; 28 A.L.T., 
17 ; 12 A.L.R., 393. 

Bayne v. Blake, (1908) A.C., 371 ; 14 
A.L.R., 317, explained. In re Transfer of 
Land Act ; Ex parte Equity Trustees 
Executors &c. Co. Ltd. and O' Halloran, 
<1911) V.L.R., 197; 32 A.L.T., 183; 17 
A.L.R., 154. 

Beecham & Co., The King v., (1910) V.L.R., 
204; 31 A.L.T., 183; 16 A.L.R., 173, 
applied. Annear v. Inship, (1910) V.L.R., 
235 ; 31 A.L.T., 220 ; 16 A.L.R., 276. 

Beissel, Crout v., (1909) V.L.R., 211; 30 
A.L.T., 185; 16 A.L.R., 636, followed. 
Grunden v. Nissen, (1911) V.L.R., 97 ; 32 
A.L.T., 117; 16 A.L.R., 636. 

Bell, Gates v., (1902) 2 K.B., 38, distin- 
guished. M c Kinnon v. Oange, (1910) V.L.R., 
32 ; 31 A.L.T., 112 ; 15 A.L.R., 640. 

Benee, In re, (1891) 3 Ch., 242, followed. 
Milligan v. Shaw, (1907) V.L.R., 668 ; 29 
A.L.T., 75 ; 13 A.L.R., 545. 

Benson, Wilson v., (1905) V.L.R., 229 ; 
26 A.L.T., 144; 11 A.L.R., 85, approved. 
Wilson v. Travers, (1906) V.L.R., 734 ; 28 
A.L.T., 56 ; 12 A.L.R., 413. 

Best, In re, 9 A.L.T., 32, approved. In re 
McConnell, 29 A.L.T. (Supplement), 8 ; 13 
A.L.R. (C.N.), 32. 

Betts v. Menzies, 10 H.L.C., 117, applied. 
N. Guthridge Ltd. v. Wilfley Ore Concen- 
trator Syndicate Ltd., 3 C.L.R., 583 ; 12 
A.L.R., 398. 



Bevan v. Moore, 24 V.L.R., 729 20 ; 
A.L.T., 238; 5 A.L.R., 100, explained. 
McCallum v. Purvis, (1906) V.L.R., 578; 
28 A.L.T., 31 ; 12 A.L.R., 329. 

Bible, Knox v., (1907) V.L.R., 485; 29 
A.L.T., 23; 13 A.L.R., 252, approved. 
Macmanamny v. King, (1907) V.L.R., 535; 
28 A.L.T., 250; 13 A.L.R., 258. 

Biggs v. Kelly, 24 V.L.R., 402 ; 20 A.L.T., 
105 ; 4 A.L.R., 153, distinguished. Annear 
v. Inship, (1910) V.L.R., 235; 31 A.L.T., 
220; 16 A.L.R., 276. 

Binko, In re, 2 Morr., 45, followed. In re 
McConnell, 29 A.L.T. (Supplement), 26; 
14 A.L.R. (C.N.), 19. 

Blake, Bayne v., (1908) A.C., 371 ; 14 
A.L.R., 317, explained. In re Transfer of 
Land Act ; Ex parte Equity Trustees Execu- 
tors &c. Co. Ltd. and O' Halloran, (1911) 
V.L.R., 197 ; 32 A.L.T., 183 ; 17 A.L.R., 
154. 

Bloomiield v. Dunlop Tyre Co. Ltd., 28 
V.L.R., 72 ; 23 A.L.T., 227 ; 8 A.L.R., 103, 
followed. Chomley v: Watson, (1907) V.L.R., 
502 ; 29 A.L.T., 46 ; 13 A.L.R., 380. 

Booth v. Arnold, (1895) 1 Q.B., 571, con- 
sidered. Livingston v. M' Carlin, (1907) 
V.L.R., 48 ; 28 A.L.T., 131 ; 12 A.L.R., 524. 

Bouche v. Sproule, 12 App. Cas., 385, at 
pp. 397, 401, considered. In re Longley ; 
Reid v. Silhe, (1906) V.L.R., 641 ; 28 A.L.T., 
82 ; 12 A.L.R., 499, applied. In re Smith ; 
Edwards v. Smith, 29 A.L.T., 173 ; 14 
A.L.R., 22. 

Bourke, Palmer v., 28 V.L.R., 275; 24 
A.L.T., 11 ; 8 A.L.R., 151, distinguished. 
Doig v. Keating, (1908) V.L.R., 118; 29 
A.L.T., 171 ; 14 A.L.R., 20. 

Bowden v. Little, 4 C.L.R., 1364; 13 
A.L.R. , 689, followed. H. Beecham db Co. v. 
R. W. Cameron & Co., (1910) V.L.R., 19 ; 
31 A.L.T., 100 ; 15 A.L.R., 598. 

Bowman, Chadwick v., 16 Q.B.D., 561, 
followed. Shaw v. David Syme & Co., (1912) 
V.L.R., 336 ; 34 A.L.T., 68 ; 18 A.L.R., 345. 

Bradford, Mayor &c. of, Chamberlain & 
Hookham Ltd. v., 20 R.P.C., 673, followed. 



LVII 



CASES FOLLOWED, OVER-RULED, &c. 



lviii 



Minerals Separation Ltd. v. Potter's Sulphide 
Ore Treatment Ltd., 8 C.L.R., 779 ; 13 
A.L.R., 332. 

Brand v. Lawrence, 1 Q.B.D., 344, followed. 
L. Osborn & Go. Ltd. v. Davidson Brothers, 
(1911) V.L.R., 416; 33 A.L.T., 66; 17 
A.L.R., 448. 

Brewery Employees Union of New South 
Wales, Attorney-General for New South 
Wales v., 6 C.L.R., 469 ; 14 A.L.R., 565, ap- 
plied. Huddart Parker & Co. Proprietary 
Lid. v. Moorehead ; Appleton v. Moorehead, 
8 C.L.R., 330 ; 15 A.L.R., 241. 

Brewster, Rochdale Canal Co. v., (1894) 2 
Q.B., 852, followed. Mayor dkc. of City of 
Melbourne v. Howard Smith Co. Ltd., 13 
C.L.R., 253 ; 17 A.L.R., 437. 

BrickneU, Christie v., 21 V.L.R., 71 ; 17 
A.L.T., 59 ; 1 A.L.R., 59, applied. 0' Connor 
v. Bini, (1908) V.L.R., 567; 30 A.L.T., 74; 
14 A.L.R., 537. 

Brimacombe, Wimmera, Shire of, v., 23 

V.L.R., 217 ; 19 A.L.T., 12 ; 3 A.L.R., 146, 
explained. Poowong, Shire of, v. Oillen, 
(1907) V.L.R., 37 ; 28 A.L.T., 123 ; 12 
A.L.R., 522. 

Brisac & Scott, R. v., 4 East, 164, followed. 
R. v. Kellow, (1912) V.L.R., 162 ; 33 A.L.T., 
203 ; 18 A.L.R., 170. 

Bristol Steam Navigation Co., Speller v., 13 
Q.B.D., 96, distinguished. Edwards v. Ed- 
wards, (1913) V.L.R., 30; 34 A.L.T., 103; 
18 A.L.R., 580. 

British Homes Assurance Corporation v. 
Paterson, (1902) 2 Ch., 404, distinguished. 
Reid v. Silberberg, (1906) V.L.R., 126. 

Brooks, Robinson & Co. v. Smith, 16 V.L.R., 
245; 11 A.L.T., 168, applied. H. Beecham 
& Co. v. R. W. Cameron & Co., (1910) 
V.L.R., 19 ; 31 A.L.T., 100 ; 15 A.L.R., 598. 

Broughton v. Broughton, 5 DeG. M. & G., 
160, at p. 164, applied. Macartney v. 
Macartney, (1909) V.L.R., 183 ; 30 A.L.T., 
172 ; 15 A.L.R., 139. 

Brown, Dalgety & Co. Ltd. v., 24 V.L.R., 
161 ; 20 A.L.T., 45 ; 4 A.L.R., 170, com- 
mented on. Riggall v. Muirhead, 13 C.L.R., 
436. 



Browne, Ex parte; Re Sandilands, 4 
V.L.R. (L.) 318, followed. Pope v. Peacock, 

(1906) V.L.R., 667; 28 A.L.T., 63; 12 
A.L.R., 440. 

Brown, R. v., 24 Q.B.D., 357, followed. 
Rex v. Tumbull, (1907) V.L.R., 11 ; 28 
A.L.T., 103 ; 12 A.L.R., 551. 

Brown v. Victorian Railways Commis- 
sioners, 3 C.L.R., 316 ; 12 A.L.R., 1, applied. 
Crouch v. Victorian Railways Commissioners, 

(1907) V.L.R., 80; 28 A.L.T., 141; 12 
A.L.R., 574. 

Burdett, R. v., 4 B. & A., 95, discussed. 
R. v. Waugh, (1909) V.L.R., 379 ; 31 A.L.T., 
37; 15 A.L.R., 366. 

Busk, Jewry v., 5 Taunt, 302, distinguished. 
Griffith v. O'Donoghue, (1906) V.L.R., 548 ; 
28 A.L.T., 31 ; 12 A.L.R., 357. 

Butler v. Rice, (1910) 2 Ch., 277, applied. 
Cuddigan v. Poole, 33 A.L.T., 210 ; 18 
A.L.R., 120. 

Butler, Ex parte ; Ex parte Wylie, 4 A.L.T., 
41, explained and distinguished. Mooney v. 
Still, (1909) V.L.R., 227 ; 30 A.L.T., 191 ; 
15 A.L.R., 197. 

Butters v. Durham G. M. Co., 11 V.L.R., 
375; 7 A.L.T., 30, followed. Brisbane v. 
Stewart, (1906) V.L.R., 608 ; 28 A.L.T., 110 ; 
12 A.L.R., 549. 

Callwell v. Callwell, 3 Sw. & Tr., 259, con- 
sidered. Forster v. Forster, (1907) V.L.R. , 
159 ; 28 A.L.T., 144 ; 13 A.L.R., 33. 

Carberry v. Cook, 3 C.L.R., 995; 12 
A.L.R., 265, applied. Le Gocq v. McErvale, 

(1908) V.L.R., 69; 29 A.L.T., 134; 13 
A.L.R., 699. 

Carew, In re, 25 A.L.T., 117; 9 A.L.R., 
266, followed, ifcre Cotter, (1907) V.L.R., 
78 ; 28 A.L.T., 106 ; 12 A.L.R., 550. 

Carr, In re, 85 L.T., 552, distinguished. 
In re Camp, (1910) V.L.R., 42 ; 31 A.L.T., 
126 ; 15 A.L.R., 642, followed. In re 
Knights ; Ex parte Purcell, (1910) V.L.R., 
188 ; 31 A.L.T., 178 ; 16 A.L.R., 184. 

Cartman, Commissioners of Police v., (1896) 
1 Q.B., 655, followed. Davies v. Young, 
(1910) V.L.R., 369; 32 A.L.T., 39; 16 
A.L.R., 368. 



LIX 



CASES FOLLOWED, OVER-RULED, &c. 



LX 



Carter, Anderson v., 20 V.L.R., 246 ; 16 
A.L.T., 49, distinguished. International 
Harvester Co. of America v. Rowe, (1909) 
V.L.R., 244 ; 30 A.L.T., 201 ; 15 A.L.R., 
212. 

Cash v. Cash. 22 V.LR, 110; 17 A.L.T., 
326 ; 2 A.L.R., 153, approved. Hines v. 
Phillips, (1906) V.L.R., 417 ; 28 A.L.T., 1 ; 
12 A.L.R., 249. 

Cathcart, Ahern v., (1909) V.L.R., 132 ; 30 
A.L.T., 156; 15 A.L.R., 67, overruled. 
President &c. of Shire of Tungam'ih v. Mer- 
rett, 15 C.L.R., 407 ; 18 A.L.R., 511. 

Caulfield, In re, 27 V.L.R., 588; 23 
A.L.T., 133 ; 7 A.L.R. (O.N.), 94, considered. 
In re Cohen, 13 A.L.R. (C.N.), 33. 

Cave-Brown-Cave, In re, (1906) V.L.R., 
283; 27 A.L.T., 183; 12 A.L.R., 167, 
explained. In re Gavin, (1906) V.L.R., 517 ; 
28 A.L.T., 39 ; 12 A.L.R., 333. 

Ceylon, Governor of, and Mitchell and 
Izard, In re, 21 Q.B.D., 408, followed. Re 
Freeman and Kempster, (1909) V.L.R., 394 ; 
31 A.L.T., 42 ; 15 A.L.R., 444. 

Chadwick v. Bowman, 16 Q.B.D., 561, 
followed. Shawv. David Syme db Co., (1912) 
V.L.R., 336 ; 34 A.L.T., 68 ; 18 A.L.R., 345. 

Chamberlain & Hookham Ltd. v. Mayor 
&c. of Bradford, 20 R.P.C., 673, followed. 
Minerals Separation Ltd. v. Potter's Sulphide 
Ore Treatment Ltd., 8 C.L.R., 779 ; 13 
A.L.R., 332. 

Chantler v. Chantler, 4 C.L.R., 585; 13 
A.L.R., 540, discussed. Ross v. Ross, (1909) 
V.L.R., 318; 30 A.L.T., 220; 15 A.L.R., 
305. 

Chapman v. Fylde Waterworks Co., (1894) 
2 Q.B., 599, followed. Trencham v. Mel- 
bourne and Metropolitan Board of Works, 
(1911) V.L.R., 363; 33 A.L.T., 30; 17 
A.L.R., 333. 

Charter v. Charter, L.R. 7 H.L., 364, ap- 
plied. In re Loughlin ; Acheson v. O'Meara, 
(1906) V.L.R., 597 ; 28 A.L.T., 28 ; 12 
A.L.R., 411. 

Chidley, May v., (1894) 1 Q.B., 451, fol- 
lowed. Colonial Bank of Australia Ltd. v. 
Nicholl, (1907) V.L.R., 402 ; 13 A.L.R., 297. 



Christie v. Bricknell, 21 V.L.R., 71; 17 
A.L..T., 59; 1 A.L.R., 59, applied. O'Con- 
nor v. Bini, (1908) V.L.R., 567 ; 30 A.L.T., 
74 ; 14 A.L.R., 537. 

Chia Gee v. Martin, 3 C.L.R., 649; 12 
A.L.R., 425, discussed and distinguished. 
Ah Sheung v. Lindberg, (1906) V.L.R., 323 ; 

27 A.L.T., 189 ; 12 A.L.R., 190. 

Church Wardens of St. Saviour's, South- 
wark v. Smith, 1 Wm. Bl., 351, followed. 
Renshaw v. Maher, (1907) V.L.R., 520; 29 
A.L.T., 237 ; 13 A.L.R., 265. 

Clarazite Manufacturing Co. Ltd. v. Armi- 
tage (No. 1), 30 A.L.T. (Supplement), 21 ; 15 
A.L.R. (C.N.), 6, disapproved. Clarazite 
Manufacturing Co. Ltd. v. Armitage (No. 2), 
30 A.L.T. (Supplement), 22 ; 15 A.L.R. 
(C.N.), 6. Also, not followed, Lee v. Cunning- 
ham, 32 A.L.T. (Supplement), 4 ; 16 A.L.R. 
(C.N.), 1. 

Clark v. Adie, 2 App. Cas., 315, applied. 
Moore v. Phillips, 4 C.L.R., 1411 ; 13 A.L.R., 
424. 

Clark, Fisher v., 2 A.L.R. (C.N.), 321, con- 
sidered. Russ v. Carr, (1909) V.L.R., 78 ; 
30 A.L.T., 131 ; 15 A.L.R., 24. 

Clutterbuck v. Curry, 11 V.L.R., 810, fol- 
lowed. McKinnon v. Oange, (1910) V.L.R., 
32 ; 31 A.L.T., 112 ; 15 A.L.R., 640. 

Cohen v. MacDonough, (1906) V.L.R., 521 ; 

28 A.L.T., 97 ; 12 A.L.R., 447, dictum of 
Cussen, J., disapproved. Cohen v. Mac- 
Donough, (1907) V.L.R., 7 ; 28 A.L.T., 119 ; 
12 A.L.R., 566. 

Collector of Imposts, Moffat v., 22 V.L.R., 

164; 18 A.L.T., 144; 2 A.L.R., 255, ap- 
proved. Davidson v. Armytage, 4 C.L.R., 
205 ; 12 A.L.R., 538. 

Collector of Imposts, Wiseman v., 21 V.L.R., 
743 ; 17 A.L.T., 251, overruled. Davidson v. 
Chimside, 7 C.L.R., 324; 14 A.L.R., 686. 

Collett v. Collett, 1 Curt. Eccl. Rep., 678, 
considered. Isles v. Isles, (1906) V.L.R., 
86 ; 12 A.L.R. (C.N.), 26. 

Collins, R. v. ; Ex parte Collins, 7 V.L.R., 
74; 2 A.L.T., 118, followed. Ross v. Ross, 
(1909) V.L.R., 318; 30 A.L.T., 220; 15 
A.L.R., 305. 



LXI 



CASES FOLLOWED, OVER-RULED, &c. 



LXII 



Colonial Bank of Australia Ltd. v. Nicholl, 

(1907) V.L.R., 402; 28 A.L.T., 222; 13 
A.L.R., 297, followed. Australian Widows' 
Fund dkc. Society Ltd. v. Story, (1907) V.L.R., 
594 ; 29 A.L.T., 110 ; 13 A.L.R., 588. 

Commissioners of Police v. Cartman, (1896) 
1 Q.B., 655, followed. Dairies v. Young, 

(1910) V.L.R., 369; 32 A.L.T., 39; 16 
A.L.R., 368. 

Connors v. McCarthy, 17 A.L.T., 187 ; 2 
A.L.R., 10, discussed. In re Lamrock, 
Brown and Hall's Costs, (1908) V.L.R., 238 ; 

29 A.L.T., 214 ; 14 A.L.R., 81. 

Constable v. Constable, l W.W. & a'B. (I. 

E. & M.), 88, applied. Maddoch v. Maddock, 

(1911) V.L.R., 127; 32 A.L.T., 124; 17 
A.L.R., 66. 

Cook, Carberry v., 3 C.L.R., 995; 12 
A.L.R., 265, applied. Le Oocq v. McErvale, 

(1908) V.L.R., 69; 29 A.L.T., 134; 13 
A.L.R., 699. 

Cooper v. Cooper, L.R. 7 H.L., 53, followed. 
Bayne v. Blake, (1908) A.C., 371 ; 14 A.L.R., 
317. Also, In re Transfer of Land Act ; 
Ex parte Equity Trustees Executors &c. Co. 
Ltd. and O' Hailoran, (1911) V.L.R., 197; 
32 A.L.T., 183 ; 17 A.L.R. 154. 

Cooper v. Cooper, 26 V.L.R., 649 ; 22 
A.L.T., 215 ; 7 A.L.R., 147, explained and 
followed. Macartney v. Macartney, 33 
A.L.T., 183 ; 18 A«L.R., 1, applied. Holmes 
v. Holmes, 28 A.L.T., 22 ; 12 A.L.R., 409. 

Cooper, Falkner v., Carter's Cases, 55, fol- 
lowed. Chomley v. Watson, (1907) V.L.R., 
502; 29 A.L.T., 46; 13 A.L.R., 380. 

Cooper v. Wandsworth District Board of 
Works, 14 C.B. N.S., 180, followed. Bremner 
v. New Normanby Quartz Mining Co., No 
Liability, (1910) V.L.R., 72 ; 31 A.L.T., 140; 
16 A.L.R., 25. 

Cork and Bandon Railway v. Goode, 13 
C.B., 826, distinguished. Land Mortgage 
Bank of Victoria Ltd. v. Reid, (1909) V.L.R., 
284 ; 31 A.L.T., 9 ; 15 A.L.R., 234. 

Corsellis, In re, 34 Ch. D., 675, followed. 
Macartney v. Macartney, (1909) V.L.R., 183 ; 

30 A.L.T., 172 ; 15 A.L.R., 139. 



Cowan & Sons v. Lockyer, 1 C.L.R., 460 ; 
10 A.L.R. (C.N.), 63, distinguished. Sargood 
Brothers v. Commonwealth, 11 C.L.R., 258 ; 
16 A.L.R., 483. 

Cox, Eyre v., 24 W.R., 317, not followed. 
Cameron v: Cameron, (1906) V.L.R., 13 ; 28 
A.L.T., 169 ; 13 A.L.R., 10. 

Crabb v. Crabb, L.R. 1 P. & D., 601, fol- 
lowed. Jordan v. Jordan, (1906) V.L.R., 
414 ; 27 A.L.T., 229 ; 12 A.L.R, 252. 

Crane, Crowley v., 21 V.L.R., 258 ; 17 
A.L.T., 43 ; 1 A.L.R., 101, followed. Macart- 
ney v. Macartney, 33 A.L.T., 183 ; 18 A.L.R., 
1. 

Crawshaw, Mitchell v., (1903) 1 K.B., 701, 
considered. O'Connor v. Anderson, (1909) 
V.L.R., 1 ; 30 A.L.T., 145 ; 15 A.L.R., 22. 

Crepps v. Durden, 1 S.L.C. (9th ed.), p. 
692, distinguished. Knox v. Bible, (1907) 
V.L.R., 485 ; 29 A.L.T., 23 ; 13 A.L.R., 352. 

Crook v. Crook, 23 A.L.T., 123 ; 8 A.L.R., 
2, over-ruled. Forster v. Forster, (1907) 
V.L.R., 159; 28 A.L.T., 144; 13 A.L.R., 
33. 

Crooke v. Smith, 4 V.L.R. (L.), 95, applied. 
H. Beecham db Co. v. R. W. Cameron & 
Co., (1910) V.L.R., 19 ; 31 A.L.T., 100 ; 15 
A.L.R., 598. 

Cropley, Re, 4 V.L.R. (I. P. & M.), 61, dis- 
tinguished. In re Ghillmetei, (1907) V.L.R., 
657 ; 29 A.L.T., 81 ; 13 A.L.R., 519. 

Crouch v. Victorian Railways Commis- 
sioners, (1907) V.L.R., 80 ; 28 A.L.T., 141 ; 
12 A.L.R., 574, followed. In re Hilliard, 
Ex parte Tinkler, (1907) V.L.R., 375 ; 28 
A.L.T., 204 ; 13 A.L.R., 138. 

Crout v. Beissel, (1909) V.L.R., 211 ; 30 
A.L.T., 185 ; 16 A.L.R., 636, followed. 
Grunden v. Nissen, (1911) V.L.R., 97; 32 
A.L.T., 117; 16 A.L.R., 636. 

Crowley v. Crane, 21 V.L.R., 258; 17 
A.L.T., 43 ; 1 A.L.R., 101, foUowed. Macart- 
ney v. Macartney, 33 A.L.T., 183 ; 18 A.L.R., 
1. 

Crown Hotel, In re ; Ex parte Waxman, 28 

V.L.R., 710 ; 24 A.L.T., 234 ; 9 A.L.R., 108, 
not followed. Mooney v. Lucas, (1909) 
V.L.R., 333 ; 31 A.L.T., 3 ; 15 A.L.R., 296. 



LXIII 



CASES FOLLOWED, OVER-RULED, &c. 



LXIV 



Culverwell, Brooks & Co., Palmer v., 85 
L.T., 758, applied by Isaacs, J. Muntz v. 
Smail, 8 C.L.R., 262 ; 15 A.L.R., 162. 

Cnndy v. Le Coca, 13 Q.B.D., 207, followed. 
Davies v. Young, (1910) V.L.R., 369 ; 32 
A.L.T., 39 ; 16 A.L.R., 368. 

Curry, Clutterbuck v., 11 V.L.R., 810, 
followed. McKinnon v. Gauge, (1910) 
V.L.R., 32 ; 31 A.L.T., 112 ; 15 A.L.R., 640. 

Cussen v. MacPherson, 6 A.L.T., 205, fol- 
lowed. Kelsey v. Caselberg, (1909) V.L.R., 
347 ; 31 A.L.T., 31 ; 15 A.L.R., 362. 

Cutts v. Gilbert, 9 Moo. P.C.C., 131, con- 
sidered. Gair v. Bowers, 9 C.L.R., 510 ; 15 
A.L.R., 494. 

Dalgety & Co. Ltd. v. Brown, 24 V.L.R., 
161 ; 20 A.L.T., 45 ; 4 A.L.R., 170, com- 
mented on. Riggall v. Muirhead, 13 C.L.R., 
436. 

Davidson v. Armytage, 4 C.L.R., 205 ; 
12 A.L.R., 538, discussed. Kelly v. Collector 
of Imposts, 29 A.L.T., 91 ; 13 A.L.R., 613. 

Davidson v. Armytage, 4 C.L.R., 205 ; 
12 A.L.R., 538, explained and distinguished. 
Davidson v. Chimside, 7 C.L.R., 324 ; 14 
A.L.R., 686. 

Davidson^ Weedon v., 4 C.L.R., 895 ; 13 
A. L.R., 87, explained. Richardson v. Austin, 

12 C.L.R., 463 ; 17 A.L.R., 324. 

Davies, R. v., (1906) 1 K.B., 32, discussed. 
Packer v. Peacock, 13 C.L.R., 577 ; 18 
A.L.R., 70. 

Davis v. Hamlin, 48 Am. R., 541, approved. 
Prebble v. Beeves, (1910) V.L.R., 88 ; 31 
A.L.T., 114; 15 A.L.R., 631. 

Dawson, Higgins v., (1902) A.C., 1, applied. 
In re Longley ; Reid v. Silk. (1906) V.L.R., 
641 ; 28 A.L.T., 82 ; 12 A.L.R., 499. 

Deakin v. Webb, 1 C.L.R., 585, approved 
and applied. Baxter v. Commissioners of 
Taxation ; Flint v. Webb, 4 C.L.R., 1087 ; 
1178; 13 A.L.R., 313. 

Deane, Reid v., (1906) V.L.R., 138, 27 
A.L.T., 153 ; 12 A.L.R., 46, followed. In 
re Tong, (1907) V.L.R., 338 ; 28 A.L.T., 200 ; 

13 A.L.R., 119, not followed as regards 
liability for sewerage expenses. Macartney 
v. Macartney, 33 A.L.T., 183; 18.A.L.R., 1. 



Dean of Christ Church, Attorney-General v., 
(1826) 2 Russ., 321, distinguished. Form- 
gard v. 'Fomsgard, (1912) V.L.R., 209; 34 
A.L.T., 11 ; 18 A.L.R., 220. 

Death, Roberts v., 8 Q.B.D., 319, followed. 
Richards v. Jager, (1909) V.L.R., 140; 30 
A.L.T., 163 ; 15 A.L.R., 119. 

Deeley v. Perkes, 13 R.P.C., 581, followed 
on question of amendment. Moore v. 
Phillips, 4 C.L.R., 1411 ; 13 A.L.R., 424. 

D'Emden v. Pedder, 1 C.L.R., 91 ; io 
A.L.R. (C.N.), 30, application of considered. 
Federated Engine Drivers and Firemen's 
Association of Australasia v. Broken Hitt 
Proprietary Co. Ltd., 12 C.L.R., 398 ; 17 
A.L.R., 285. 

Dennis v. Victorian Railways Commis- 
sioners, 28 V.L.R., 576; 24 A.L.T., 196; 
9 A.L.R., 69, applied. Victorian Railways 
Commissioners v. Campbell, 4 C.L.R., 1446 ; 
13 A.L.R., 403. 

De TraHord, Kennedy v., (1897) A.C., 180, 
followed. Pendlebury v. Colonial Mutual 
doc. Society Ltd., 13 C.L.R., 676 ; 18 A.L.R,, 
124. 

Dickinson v. Dodds, 2 Ch. D., 463, dis- 
tinguished. Patterson v. Dolman, (1908) 
V.L.R., 354; 29 A.L.T., 256; 14 A.L.R., 
240. 

Dillet, In re, 12 App. Cas., 459, at p. 467, 
principle as to granting special leave to 
appeal in criminal cases, applied. Hope v. 
The King, 9 C.L.R., 257. 

Dillon, Antony v., 15 V.L.R., 240, discussed. 
Bell v. Clarke, (1906) V.L.R., 567 ; 28 
A.L.T., 24 ; 12 A.L.R., 308. 

Dodds, Dickinson v., 2 Ch. D., 463, dis- 
tinguished. Patterson v. Dolman, (1908) 
V.L.R., 354 ; 29 A.L.T., 256. ; 14 A.L.R., 
240. 

Doherty v. Thompson, 94 L.T., 626, fol- 
lowed. Harrison San Miguel Proprietary 
Ltd. v. Alfred Lawrence & Co., (1912) V.L.R., 
367 ; 34 A.L.T., 88 ; 18 A.L.R., 394. 

Downey, In re, 5 V.L.R. (I. P. & M.), 72, 
distinguished. In re Johnson, (1909) V.L.R., 
324 ; 31 A.L.T., 2 ; 15 A.L.R., 304. 



LXV 



CASES FOLLOWED, OVER-RULED, &c. 



LXVI 



Doyle v. Feme, 25 V.L.R., 291 ; 5 A.L.R. 

(C.N.), 93, followed. Harney v. Huntley, 
President &c. of Shire of, (1910) V.L.R., 455; 
32 A.L.T., 82 ; 16 A.L.R., 582. 

Diake, London &c. Discount Co. v., 3 
C.N.B.S., 798, followed. Armstrong v Duke 
of Wellington G. M. Co., No Liability, 3 
C.L.R., 1028 ; 12 A.L.R., 316. 

Dublin, Wicklow and Wexford Ry. Co. v. 
Slattery, 3 A.C., 1155, at p. 1201, applied. 
Farrands v. Mayor dbc. of Melbourne, (1909) 
V.L.R., 531 ; 31 A.L.T., 78 ; 15 A.L.R., 520. 
distinguished. Fraser v. Victorian Railways 
Commissioners, 8 C.L.R., 54 ; 15 A.L.R., 93. 

Dunbar, Rees v., 14 V.L.R., 645; 10 
A.L.T., 147, followed. Davis v. Davis and 
Hattrick, (1912) V.L.R., 23 ; 33 A.L.T., 108 ; 
17 A.L.R., 607. 

Dunlevie, Dungey v., 31 A.L.T. (Supple- 
ment), 3; 15 A.L.R. (C.N.), 13, followed. 
Ormond v. Joske, 16 A.L.R. (C.N.), 1. 

Dunlop Tyre Co. Ltd., Bloomfield v., 28 
V.L.R., 72 ; 23 A.L.T., 227 ; 8 A.L.R., 103, 
followed. Chomley v. Watson, (1907) V.L.R., 
502 ; 29 A.L.T., 46 ; 13 A.L.R., 380. 

Dun, Macintosh v., (1908) A.C., 390, dis- 
tinguished. Howe v. Lees, 11 C.L.R., 361 ; 
16 A.L.R., 605. 

Duiden, Ciepps v., 1 S.L.C. (9th ed.), p. 
692, distinguished. Knox v. Bible, (1907) 
V.L.R., 485 : 29 A.L.T., 23 ; 13 A.L.R., 352. 

Durham, Earl of, Wood v., 21 Q.B.D., 501, 
followed. Wilson v. Dun's Gazette, (1912) 
V.L.R., 342 ; 34 A.L.T., 77 ; 18 A.L.R., 327. 

Durham G. M. Co., Butters v., 11 V.L.R., 

375; 7 A.L.T. , 30, followed. Brisbane v. 
Stewart, (1906) V.L.R., 608 ; 28 A.L.T., 110 ; 
12 A.L.R., 549. 

Eager, In re, 32 A.L.T, 145 ; 17 A.L.R., 
90, approved. In re Bloom, (1911) V.L-R-, 
313 ; 33 A.L.T., 26 ; 17 A.L.R., 331. 

Eames, Lambe v , L.R. 6 Ch., 597, followed. 
In re Lawn ; Ballarat Trustees dbc. Co. v. 
Perry, (1911) V.L.R., 318 ; 33 A.L.T., 25 ; 17 
A.L.R., 311. 

Earl of Chesterfield's Estate, In re, 24 Ch. 
D., 643, distinguished. Holmes v. Holmes, 
28 A.L.T., 22 ; 12 A.L.R., 409. 



Edwards, Stroud v., 77 L.T. N.S., 280, 
followed. Trustees Executors and Agency 
Co. Ltd. v. Webster, (1907) V.L.R., 318 ; 
28 A.L.T., 225 ; 13 A.L.R., 188. 

Egbert v. Short, (1907) 2 Ch. ,207, considered 
and applied. Maritime Insurance Co. Ltd. 
v. Geelong Harbour Trust Commissioners, 
6 C.L.R., 194 ; 14 A.L.R., 424. 

Ellis, R. v., (1899) 1 Q.B., 230, discussed. ' 
R. v. Waugh, (1909) V.L.R., 379 ; 31 A.L.T., 
37 ; 15 A.L.R., 366. 

Ellison v. Ivanhoe Gold Mining Co., No 
Liability, 23 V.L.R., 224 ; 19 A.L.T., 104 ; 
3 A.L.R., 209, distinguished. Manning v. 
Tewksbury Freehold Gold Dredging Co., 
No Liability. (1908) V.L.R., 50; 29 A.L.T., 
78 ; 13 A.L.R., 547. 

Ely, Re; Tottenham v. Ely, 65 L.T., 452, 
distinguished. In re Loughlin ; Acheson 
v. O'Meara, (1906) V.L.R., 597 ; 28 A.L.T., 
28; 12 A.L.R., 411. 

England, Ex parte ; R. v. Templeton, 3 
V.L.R. (L.), 305, followed. Burvett v. 
Moody, (1909) V.L.R., 126 ; 30 A.L.T., 160 ; 
15 A.L.R., 91. 

Equitable Life Assurance Society, Warnecke 
v., (1906) V.L.R., 482 ; 27 A.L.T., 236 ; 12 
A.L.R., 254, approved. National Mutual 
Life Association of Australasia Ltd. v. God- 
rich, 10 C.L.R., 1 ; 16 A.L.R., 110. 

Equity Trustees &c. Co., Wilkie v., (1909) 
V.L.R., 277; 30 A.L.T, 211; 15 A L.R., 
208, followed. Macartney v. Macartney, 
33 A.L.T., 183 ; 18 A.L.R., 1. 

Evans v. Evans and Elford, (1906) P., 125, 
followed. Mulder v. Mulder, (1906) V.L.R., 
388 ; 27 A.L.T, 216 ; 12 A.L.R., 210, and 
approved. McRaev. McRae, (1906) V.L.R., 
778 ; 28 A.L.T, 90 ; 14 A.L.R., 479. 

Evans v. Sneddon, 28 V.L.R., 396; 24 
A.L.T., 79 ; 8 A.L.R., 215, explained. Smith 
v. Chisholm, (1908) V.L.R., 579 ; 30 A.L.T., 
48 ; 14 A.L.R., 471. 

Eyre v. Cox, 24 W.R., 317, not followed. 
Cameron v. Cameron, (1906) V.L.R., 13 ; 28 
A.L.T., 169 ; 13 A.L.R., 10. 



LXVII 



CASES FOLLOWED, OVER-RULED, &c. 



LXV1II 



Falkner v. Cooper, Carter's Cases, 55, fol- 
lowed. Chomley v. Watson, (1907) V.L.R., 
502 ; 29 A.L.T., 46 ; 13 A.L.R., 380 

Farrer v. Lowe, 5 T.L.R., 234, followed. 
Ronald v. Harper, (1908) V.L.R., 674; 30 
A.L.T., 72 ; 14 A.L.R., 472. 

Feaiy, Vestry of St. James and St. John v., 

24 Q.B.D., 703, distinguished. Bremner v. 

New Normanby Quartz Mining Co., No Lia- 

*bility, (1910) V.L.R., 72 ; 31 A.L.T., 140 ; 16 

A.L.R., 25. 

Fellows, Re, 5 V.L.R. (I. P. & M.), 82 ; 1 
A.L.T., 53, followed. In re Winter ; Winter- 
Irving v. Winter, (1907) V.L.R., 546; 29 
A.L.T., 4 ; 13 A.L.R., 298. 

Fenessy, In re, 8 A.L.R., 211 («), distin- 
guished. Ex parte Edmonds and Harrison, 
34 A.L.T., 105 ; 18 A.L.R., 41. 

Fenton v. Nevin, 31 L.R. Ir., 478, followed. 
In re Lewis ; Gollan v. Pyle, 29 A.L.T., 36 ; 
13 A.L.R., 431. 

Feme, Doyle v., 25 V.L.R., 291 ; 5 A.L.R. 

(C.N.), 93, followed. Harney v. Huntley, 
President dbc. of Shire of, (1910) V.L.R., 455 ; 
32 A.L.T., 82 ; 16 A.L.R., 582. 

Field, In re, 21 V.L.R., 278 ; 16 A.L.T., 
162 ; 1 A.L.R., 26, followed. In re Hamil- 
ton, 28 A.L.T., 124 ; 12 A.L.R., 523. 

Firkins v. Firkins, 23 A.L.T., 122; 4 
A.L.R., 74, over-ruled. Forster v. Forster, 
(1907) V.L.R., 159; 28 A.L.T., 144; 13 
A.L.R., 33. 

Fisher v. Clark, 2 A.L.R. (C.N.), 321, con- 
sidered. Buss v. Oarr, (1909) V.L.R., 78 ; 
30 A.L.T., 131 ; 15 A.L.R., 24. 

Fitzgerald, R. v., 15 V.L.R., 40; 10 

A.L.T., 241, followed. Bex v. Turnbull, 

(1907) V.L.R., 11 ; 28 A.L.T., 103 ; 12 
A.L.R., 551. 

Fletcher, Rylands v., L.R., 3 H.L., 330, dis- 
tinguished. Bickards v. Lothian, (1913) 
A.C., 263. 

Flood, Allen v., (1898) A.C., 1, followed. 
Bond v. Morris, (1912) V.L.R., 351 ; 34 
A.L.T., 52 ; 18 A.L.R., 348. 

Foley v. Monaghan, 14 A.L.T., 240, dis- 
cussed. Adams v. Rogers, (1907) V.L.R., 
245 ; 28 A.L.T., 180 ; 13 A.L.R., 71. 



Folk, In re, 6 W.W. & a'B. (Eq.), 171, dis- 
approved. In re Tong, (1907) V.L.R., 338; 
28 A.L.T., 200 ; 13 A.L.R., 199. 

Foulkes, Re, (1909) V.L.R, 76 ; 30 A.L.T., 
108 ; 14 A.L.R., 729, followed. Re Garrett ; 
Smith v. Garrett, (1910) V.L.R., 287 ; 31 
A.L.T., 203 ; 16 A.L.R., 215. 

Fraser, Amos v., 4 C.L.R., 78 ; 12 A.L.R., 

481, considered. Lever Brothers Ltd. v. 
G. Mowling <fc Son, 30 A.L.T., 144; 15 
A.L.R., 40. 

Fraser, In re; Lowther v. Fraser, (1904) 

1 Ch., 726, followed. In re Stead, (1908) 
V.L.R., 10 ; 29 A.L.T., 155 ; 13 A.L.R., 683. 

Friendly Society of Operative Stonemasons, 
Read v., (1902) 2 K.B., 732, distinguished. 
Bond v. Morris, (1912) V.L.R., 351 ; 34 
A..L.T., 52; 18 A.L.R., 348. 

Frost, In re, 43 Ch. D., 246, followed. In 
re Malin ; National Trustees dbc. Go. v. 
Loughnan, (1912) V.L.R., 259; 34 A.L.T., 
30; 18 A.L.R., 274. 

Fylde Waterworks Co., Chapman v., (1894) 

2 Q.B., 599, followed. Frencham v. Mel- 
bourne and Metropolitan Board of Works, 
(1911) V.L.R., 363; 33 A.L.T., 30; 17 
A.L.R., 333 

Gaffee, Re, 1 Mac. & G., 541, discussed. 
Trustees Executors and Agency Co. Ltd. v. 
Webster, (1907) V.L.R., 318 ; 28 A.L.T., 225 ; 
13 A.L.R., 188. 

Gates v. R. Bell & Son, (1902) 2 K.B., 38, 
distinguished. M c Kinnon v. Gange, (1910) 
V.L.R., 32 ; 31 A.L.T., 112 ; 15 A.L.R., 640. 

Gibson, R. v., 18 Q.B.D., 537, considered. 
Knox v. Bible, (1907) V.L.R., 485; 29 
A.L.T., 23 ; 13 A.L.R., 352. 

Gilbert, In re ; Gilbert v. Huddlestone, 28 
Ch. D., 549, applied. Alexander Ferguson 
<fc Co. v. Daniel Crawford <fc Co., 10 C.L.R., 
207. 

Gilbert, Cutts v., 9 Moo. P.C.C., 131, con- 
sidered. Gair v. Bowers, 9 C.L.R., 510 ; 
15 A.L.R., 494. 

Glamorgan Coal Co., South Wales Miners' 
Federation v., (1905) A.C., 239, distinguished. 
Bond v. Morris, (1912) V.L.R., 351 ; 34 
A.L.T., 52 ; 18 A.L.R., 348. 



LXIX 



CASES FOLLOWED, OVER-RULED, &c. 



LXX 



Goddard, Robins v., (1905) 1 K.B., 294, dis- 
tinguished. Briscoe & Co. v. Victorian 
Bailways Commissioners, (1907) V.L.R., 523 
29 A.L.T., 17 ; 13 A.L.R., 308. 

Goldsmith v. Sands, 4 C.L.R., 1648; 13 
A.L.R., 601, applied. Moule v. Moule, 13 
C.L.R., 267 ; 17 A.L.R., 446. 

Goode, Cork and Bandon Railway v., 13 
C.B., 826, distinguished. Land Mortgage 
Bank of Victoria Ltd. v. Beid, (1909) V.L.R., 
284 ; 31 A.L.T., 9 ; 15 A.L.R., 234. 

Goodman's Trust, In re, 6 V.L.R. (E.), 
181, followed. In re Oonnell, (1910) V.L R., 
471 ; 32 A.L.T., 83 ; 16 A.L.R., 504. 

Goodyear v. Mayor, &c. of Weymouth, 35 
L.J. N.S. C.P., 12, discussed and applied. 
Briscoe dk Co. v. Victorian Railways Com- 
missioners, (1907) V.L.R., 523 ; 29 A.L.T., 

17 ; 13 A.L.R., 308. 

Gossling, In re, (1902) 1 Ch., 945 ; (1903) 
1 Ch., 448, applied. In re Munro ; National 
Trustees Executors dkc. Co. of Australasia 
Ltd. v. Dunbar, (1910) V.L.R., 395; 32 
A.L.T., 41 ; 16 A.L.R., 363. 

Gower v. Andrew, 43 Am. R., 242, approved. 
Prebble v. Beeves, (1910) V.L.R., 88 ; 31 
A.L.T., 114 ; 15 A.L.R., 631. 

Graham, In re, (1910) V.L.R., 466 ; 32 
A.L.T., 68 ; 16 A.L.R., 512, followed. In re 
Martin, (1912) V.L.R., 206 ; 34 A.L.T., 1 ; 

18 A.L.R., 216. 

Graves v. Panam, (1905) V.L.R., 297; 26 
A.L.T., 232; 11 A.L.R., 180, discussed. 
Graham v. Matoorekos, (1907) V.L.R., 270 ; 

28 A.L.T., 173 ; 13 A.L.R., 113. 

« 

Great Northern Ry. Co., Harwood v., 11 
H.L.C., 654, applied. Linotype Co. Ltd. v. 
y, 9 C.L.R., 194 ; 15 A.L.R., 310. 



Greatorex v. Shackle, (1895) 2 Q.B., 249, 
followed. Looker v. Mercer, 28 A.L.T. 
(Supplement), 15 ; 13 A.L.R. (C.N.), 13. 

Green, Grescot v., 1 Salk, 198, followed. 
Renshaw v. Maker, (1907) V.L.R., 520 ; 29 
A.L.T., 237 ; 13 A.L.R., 265. 

Grescot v. Green, 1 Salk., 198, followed. 
Benshaw v. Maker, (1907) V.L.R., 520 ; 29 
A.L.T., 237 ; 13 A.L.R., 265. 



Grumley v. Webb, 100 Am. Dec, 304, 
approved. Prebble v. Beeves, (1910) V.L.R., 
88 ; 31 A.L.T., 114 ; 15 A.L.R., 631. 

Gyngall, R. v., (1893) 2 Q.B., 232, considered 
and applied. Goldsmith v. Sands, 4 C.L.R., 
1648 ; 13 A.L.R., 601, explained. The King 
v. Lennie ; The King v. Mackenzie, 29 A.L.T. 
56 ; 13 A.L.R., 505. 

Hambrough v. Mutual Life &e. of New York, 
72 L.T., 141, disapproved. Dalgety db Co. 
Ltd. v. Australian Mutual Provident Society, 
(1908)V.L.R., 481 ; 30 A.L.T., 4 ; 14 A.L.R., 
299. 

Hamlin, Davis v., 48 Am. R., 541, approved. 
Prebble v. Beeves, (1910) V.L.R., 88; 31 
A.L.T., 114 ; 15 A.L.R., 631. 

Hancock v. Watson, (1902) A.C., 14, at p. 
22, applied. In re Watson ; Cain v. Watson, 
(1910) V.L.R., 256 ; 31 A.L.T., 212 ; 16 
A.L.R., 76. 

Handley v. London Edinburgh and Glasgow 
Assurance Co., (1902) 1 K.B., 350, com- 
mented on. Armstrong v. Great Southern 
G. M. Co. No Liability, 12 C.L.R., 382 ; 17 
A.L.R., 377. 

Harford, Neilson v., 1 Web. Pat. Cas., 295, 
distinguished. Gillies v. Hartnett Patent 
Milking Machine Co. Ltd., 31 A.L.T., 164 ; 
16 A.L.R., 88. 

Harrison San Miguel & Co. v. Maddern, 

(1905) V.L.R., 400; 26 A.L.T., 215; 11 
A.L.R., 178, over-ruled. The King v. 
Beecham ; Ex parte Cameron, (1910) V.L.R. , 
204 ; 31 A.L.T., 183 ; 16 A.L.R., 173. 

Harter v. Harter, L.R. 3 P. & D., 11, ap- 
plied. In re Green ; Crowsonv. Wild, (1907) 
V.L.R., 284; 28 A.L.T., 206 ; 13 A.L.R., 121. 

Harwood v. Great Northern Ry. Co., 11 

H.L.C., 654, applied. Linotype Co. Ltd. v. 
Mounsey, 9 C.L.R., 194 ; 15 A.L.R., 310. 

Hastings Pier Co., Laidlaw v. (referred to 
in Hudson on Building Contracts), discussed 
and applied. Briscoe & Co. v. Victorian 
Bailways Commissioners, (1907) V.L.R., 523 ; 
29 A.L.T., 17 ; 13 A.L.R., 308. 

Hayes, Heffernan v., 25 V.L.R., 156 ; 21 
A.L.T., 118 ; 5 A.L.R., 269, followed. Wil- 
son v. Dun's Gazette, (1912) V.L.R., 342 ; 34 
A.L.T., 77 ; 18 A.L.R., 327. 



LXXI 



CASES FOLLOWED, OVER-RULED, &c. 



lxxii 



Hay ward, In re, 19 Ch. D., 470, distin- 
guished. In re Gleeson, (1910) V.L.R., 181 ; 
31 A.L.T., 194 ; 16 A.L.R., 143. 

Hearne, Ward v., 10 V.L.R. (L.), 163 ; 6 
A.L.T., 49, explained. The King v. Watt; 
Ex parte Slade, (1912) V.L.R., 225; 33 
A.L.T., 222 ; 18 A.L.R., 158. 

Hedley's Trusts, In re, 25 W.R., 529, dis- 
tinguished. In re Vickers, (1912) V.L.R., 
385 ; 34 A.L.T., 133 ; 18 A.L.R., 521. 

Heffernan v. Hayes, 25 V.L.R., 156; 21 
A.L.T., 118 ; 5 A.L.R., 269, followed. Wil- 
son v. Sun's Gazette, (1912) V.L.R., 342 ; 34 
A.L.T., 77 ; 18 A.L.R., 327. 

Hensler, R. v., 11 Cox, 573, discussed. R. 
v. Waugh, (1909) V.L.R., 379; 31 A.L.T., 
37 ; 15 A.L.R., 366. 

Henty, Barker v., 29 V.L.R., 293; 25 
A.L.T., 34 ; 9 A.L.R., 160, distinguished. 
Annear v. Inskip, (1910) V.L.R., 235 ; 31 
A.L.T., 220 ; 16 A.L.R., 276. 

Hernaman, Tucker v., 1 Sm. & G., 394 ; 

4 DeG. M. & G., 395, followed. In re Poole, 

31 A.L.T. (Supplement) ; 13 ; 15 A.L.R. 
(C.N.), 25. 

Heward v. The King, 3 C.L.R., 117; 11 
A.L.R. , 494, followed. In re Draper ; 
Graham v. Draper, (1910) V.L.R., 376 ; 32 
A.L.T., 34 ; 16 A.L.R., 370. 

Heywood, Justices of, Regina v., 21 V.L.R., 
654; 17 A.L.T., 238, distinguished. Rich- 
ards v. Jager, (1909) V.L.R., 140 ; 30 A.L.T., 
163; 15 A.L.R., 119. 

Hickling v. Todd, 15 V.L.R., 154; 10 
A.L.T., 236, followed. In re Stamps Acts, 
(1906) V.L.R., 364; 27 A.L.T., 204; 12 
A.L.R., 186. 

Higgins v. Dawson, (1902) A.C., 1, applied. 
In re Longley ; Reid v. Silk, (1906), V.L.R., 
641 ; 28 A.L.T., 82 ; 12 A.L.R., 499. 

Hill v. Hill, 19 V.L.R., 187; 14 A.L.T., 
269, distinguished. Buttle v. Hart, (1906) 
V.L.R., 195; 27 A.L.T., 184; 12 A.L.R. 
(C.N.), 5, and Goodman v. Jonas, (1909) 
V.L.R., 308 ; 31 A.L.T., 16 ; 15 A.L.R., 308. 

Hinds, Quan Yick v., 2 C.L.R., 345 ; 11 
A.L.R., 223, considered. Ex parte Dunn ; 



Ex parte Aspinall, (1906) V.L.R., 584 ; 28 
A.L.T., 72 ; 12 A.L.R., 418. 

Hingeston v. Sidney ; In re Sidney, (1908) 
1 Ch., 126, 488, distinguished. In re Wal- 
lace ; Trustees Executors and Agency Co. 
Ltd. v. Fatt, (1908) V.L.R., 636 ; 30 A.L.T., 
100 ; 14 A.L.R., 502. 

Ho-a-Mie v. Ho-a-Mie, 6 V.L.R. (I. P. & 
M.), 113, over-ruled. Forster v. Forster, 
(1907) V.L.R., 159; 28 A.L.T., 144; 13 
A.L.R., 33. 

Hohenzollern, Re, and City of London Cor- 
poration, 54 L.T. N.S., 596, distinguished. 
Briscoe & Co. v. Victorian Railways Com- 
missioners, (1907) V.L.R., 523; 29 A.L.T., 

17 ; 13 A.L.R., 308. 

Holford v. Melbourne Tramway and Omni- 
bus Co. Ltd., (1909) V.L.R., 497 ; 29 A.L.T., 
112 ; 13 A.L.R., at p. 677, doubted. Arm- 
strong v. Great Southern G.M. Co., No. 
Liability, 12 C.L.R., 382 ; 17 A.L.R., 377. 

Hollingswortn, Banks v., (1893) 1 Q.B., 
442, followed. Ronald v. Harper, (1908) 
V.L.R., 674 ; 30 A.L.T., 72 ; 14 A.L.R, 472, 

Hollingworth, Permezel v., (1905) V.L.R., 
321 ; 26 A.L.T., 213 ; 11 A.L.R., 217, fol- 
lowed. In re Ralston ; Perpetual Executors 
and Trustees Association v. Ralston, (1906) 
V.L.R, 689; 28 A.L.T., 45; 12 A.L.R., 
365, distinguished. Cattanach v. Mac- 
pherson, (1908) V.L.R., 390 ; 29 A.L.T., 259 ; 
14 A.L.R., 214. 

Hooper, Attorney-General v., (1893) 3 Ch., 
483, distinguished. Bremner v. New Nor- 
manby Quartz Mining Co., No Liability, 
(1-910) V.L.R., 72; 31 A.L.T., 140; 16 
A.L.R., 25. 

Hosken, Marriott v., (1911) V.L.R., 54 ; 32 
A.L.T., 115; 16 A.L.R., 604, explained. 
Lamboum v. Hosken, (1912) V.L.R., 394 ; 34 
A.L.T., 101 ; 18 A.L.R., 371. 

Hosken, Perpetual Executors and Trustees 
Association of Australia v., 14 C.L.R., 286 ,- 

18 A.L.R., 201, followed. Mahoney v. 
Hosken, 14 C.L.R., 379 ; 18 A.L.R., 205. 

Hotchkys, In re, 32 Ch. D., 408, followed. 
In re Tong, (1907) V.L.R., 338 ; 28 A.L.T.,. 
200; 13 A.L.R., 119. 



LXXIII 



CASES FOLLOWED, OVER-RULED, &c. 



LXXIV 



Howard v. Jones, 18 V.L.R., 578; 14 
A.L.T., 106, distinguished. Davis v. Davis 
and Hattrick, (1912) V.L.R., 427 ; 34 A.L.T., 
66; 18 A.L.R., 398. 

Howell, Re, (1906) V.L.R., 223 ; 27 
A.L.T., 172 ; 12 A.L.R., 92, over-ruled. In 
re Winter; Winter- Irving v. Winter, (1907) 
V.L.R., 546 ; 29 A.L.T., 4 ; 13 A.L.R., 298. 

Huddlestone, Gilbert v. ; In re Gilbert, 28 

Ch. D., 549, applied. Alexander Ferguson 
& Co. v. Daniel Crawford & Co., 10 C.L.R., 
207. 

Huguenin v. Baseley, 14 Ves., 273, con- 
sidered. Union Bank of Australia Ltd. v. 
Whitelaw, (1906) V.L.R., 711 ; 28 A.L.T., 17 ; 

12 A.L.R., 393. 

Hunt, Wilkie v., 1 W.W. & a'B. (L.), 66, 
distinguished. Bruton v. Farm and Dairy 
Machinery Co. Proprietary Ltd., (1910) 
V.L.R., 196; 31 A.L.T., 200; 16 A.L.R., 
241. 

Hutchinson, Re, 32 W.R., 392, approved 
and applied. In re Winter ; Winter- Irving 
v. Winter, (1908) V.L.R., 74 ; 29 A.L.T., 144 ; 

13 A.L.R., 701. 

Huxley and Walsh, R. v., 8 V.L.R. (L.), 
15 ; 3 A.L.T., 96, followed. McLiney v. 
Minster, (1911) VX R , 347 ; 33 A.L.T., 33 ; 
17 A.L.R., 336. 

Income Tax Acts, In re, 28 V.L.R. , 203 ; 
24 A.L.T., 38 ; 8 A.L.R., 157, approved. 
In re Income Tax Acts ; The Seven Hills 
Estate Company's Case, (1906) V.L.R., 225 ; 
27 A.L.T., 175 ; 12 A.L.R., 188. 

Income Tax Acts, In re ; Hydraulic Com- 
pany's Case, (1905) V.L.R., 185 ; 26 A.L.T., 
177 ; 11 A.L.R., 65, commented on. Be 
Income Tax Acts, (1907) V.L.R., 327; 28 
A.L.T., 196 ; 13 A.L.R., 154. 

Income Tax Act 1902, In re, Queensland 

S.R. (1904), 57, distinguished. Re Income 

Tax Acts, (1907) V.L.R., 358; 28 A.L.T., 
215; 13 A.L.R., 151. 

Inman, In re, (1893) 3 Ch., 518, followed. 
In re Thompson ; Brahe v. Mason, (1910) 
V.L.R., 251 ; 31 A.L.T., 210 ; 16 A.L.R., 
215 



International Harvester Co. of America v. 
Mullavey, (1906) V.L.R.. 659; 28 A.L.T., 
51 ; 12 A.L.T., 380, approved. Colonial 
Bank of Australasia Ltd. v. Martin, (1912) 
V.L.R., 383 ; 34 A.L.T., 47 ; 18 A.L.R., 
325. 

Ivanhoe Gold Mining Co., No Liability, 
Ellison v., 23 V.L.R., 224 ; 19 A.L.T., 104 ; 
3 A.L.R., 209, distinguished. Manning v. 
Tewksbury Freehold Gold Dredging Co., No 
Liability, (1908) V.L.R., 50; 29 A.L.T., 78; 
13 A.L.R., 547. 

Ivey, Thomas v., 13 A.L.T., 190, distin- 
guished. Riely v. Biggs, 28 A.L.T. (Supple- 
ment), 11 ; 13 A.L.R. (C.N.), 5. 

Jackson v. Napper, 35 Ch. D., 162, at p. 
172, cited and approved. Equity Trustees 
Executors and Agency Co. Ltd. v. Harston, 
(1908) V.L.R., 23 ; 29 A.L.T., 131 ; 13 
A.L.R., 686. 

Jager, Richards v., (1909) V.L.R., 140; 30 
A.L.T., 163; 15 A.L.R., 119, approved. 
Swinburne v. David Syme & Co., (1909) 
V.L.R., 550; 31 A.L.T., 81; 15 A.L.R., 
579. 

James, In re, 13 V.L.R., 154, followed. 
In re Moriarty, (1907) V.L.R., 315 ; 29 
A.L.T., 65; 13 A.L.R., 307. 

James Gillespie & Co. Ltd. v. Reid, (1905) 

V.L.R., 101 ; 26 A.L.T., 154 ; 11 A.L.R., 12, 
considered. Land Mortgage Bank of Vic- 
toria Ltd. v. Reid, (1909) V.L.R., 284; 31 
A.L.T., 9 ; 15 A.L.R., 234. 

Jeffryes, Smith v., 15 M. & W., 561, dis- 
tinguished. Bruton v. Farm and Dairy 
Machinery Co. Proprietary Ltd. (1910) 
V.L.R., 196; 31 A.L.T., 200; 16 A.L.R., 
241. 

Jenkins, Alexander v., (1892) 1 Q.B., 571, 
considered. Livingston v. McCartin, (1907) 
V.L.R., 48 ; 28 A.L.T., 131 ; 12 A.L.R., 
524. 

Jenner, Trustees Executors and Agency Co. 
v., 22 V.L.R., 584; 18 A.L.T., 255 ; 3 A.L.R., 
138, followed. England v. Bayles, (1906) 
V.L.R., 94 ; 27 A.L.T., 181 ; 12 A.L.R., 122. 

Jewell v. Jewell, 2 w. & W. (I.E. & M.), 136, 
distinguished. Maddock v. Maddock, (1911) 
V.L.R., 127 ; 32 A.L.T., 124 ; 17 A.L.R., 66. 



LXXV 



CASES FOLLOWED, OVER-RULED, &c. 



LXXVI 



Jewry v. Busk, 5 Taunt, 302, distinguished. 
Griffith v. O'Donoghue, (1906) V.L.R., 548 ; 
28 A.L.T., 31 ; 12 A.L.R., 357. 

Jones, Howard v., 18 V.L.R., 578; 14 
A.L.T., 106, distinguished. Davis v. Davis 
and Hattrick, (1912) V.L.R., 427 ; 34 A.L.T., 
66 ; 18 A.L.R., 398. 

Jope, Trustees Executors &c. Co., v., 27 
V.L.R., 706 ; 24 A.L.T., 30 ; 8 A.L.R. (C.N.), 
21, followed. In re Tong, (1907) V.L.R., 
338 ; 28 A.L.T., 200 ; 13 A.L.R., 119. 

Joske, Stiggants v., 12 C.L.R., 549; 17 
A.L.R., 526, discussed and applied. Joske 
v. Strutt, (1912) V.L.R., 118 ; 33 A.L.T., 189 ; 
18 A.L.R., 84. Also, explained, 14 C.L.R., 
180; 18 A.L.R., at p. 90. 

Joske v. Strutt, (1912) V.L.R., 110; 33 
A.L.T., 189 ; 18 A.L.R., 84, not followed. 
Joske v. Blitz. (1912) V.L.R., 256 ; 34 A.L.T., 
15 ; 18 A.L.R., 352. 

Justices of the County of London and the 
London County Council, R. v., (1893) 2 Q.B., 
476, followed. Mooney v. Anderson, (1907) 
V.L.R., 623 ; 29 A.L.T., 42 ; 13 A.L.R., 471. 

Kay v. Kay, (1904) P., 382, at p. 397, fol- 
lowed and applied. Garrick v. Garrick ; 
Sutton, co-respondent, (1908) V.L.R., 420 ; 
30 A.L.T., 21 ; 14 A.L.R., 312. 

Keates v. Woodward, (1902) 1 K.B., 532, 
followed. Harrison San Miguel Proprietary 
Ltd. v. Alfred Lawrence & Co., (1912) 
V.L.R., 367 ; 34 A.L.T., 88 ; 18 A.L.R., 394. 

Keighley, Maxsted &c. Co., Re, (1893) 1 
Q.B., 405, followed. In re Bennett Brothers, 
(1910) V.L.R., 51; 31 A.L.T., 148; 16 
A.L.R., 30. 

Kelly, Biggs v., 24 V.L.R., 402 ; 20 A.L.T., 
105 ; 4 A.L.R., 153, distinguished. Annear 
v. Inskip, (1910) V.L.R., 235; 31 A.L.T., 
220 ; 16 A.L.R., 276. 

Kelly v. Lonsdale, (1906) 2 K.B., 486, dis- 
tinguished. Rider v. Dunn, (1908) V.L.R., 
377 ; 29 A.L.T., 279 ; 14 A.L.R., 245. 

Kempton Park Racecourse Co. Ltd., Powell 
v., (1899) A.C., 143, followed as to " user." 
McCann v. Morgan, (1912) V.L.R., 303 ; 34 
A.L.T., 43 ; 18 A.L.R., 334. 



Kennedy v. DeTrafford, (1897) A.C., 180, 
followed. Pendlebury v. Colonial Mutual 
dbc. Society Ltd., 13 C.L.R., 676 ; 18 A.L.R., 
124. 

Kennedy v. Miller, 4 W.W. & VB. (L.), 255, 
followed. Equity Trustees Executors and 
Agency Co. Ltd. v. Harston, (1908) V.L.R., 
23 ; 29 A.L.T., 131 ; 13 A.L.R., 686. 

Kennedy v. Purser, 23 V.L.R., 530; 19 
A.L.T., 192; 4 A.L.R., 54, followed. O'Don- , 
nell v. McKelvie, (1906) V.L.R., 207; 27 
A.L.T., 164 ; 12 A.L.R., 39. 

Kickham v. The Queen, 8 V.L.R. (E.), 1 
6 ; 3 A.L.T., 86, followed. The King v. 
Dale, (1906) V.L.R., 662; 28 A.L.T., 140; 
12 A.L.R., 549. 

King, The v. Barger, 6 C.L.R., 41 ; 14 
A.L.R., 374, applied. Huddart Parker & 
Co. Proprietary Ltd. v. M oorehead ; Appleton 
v. Moorehead, 8 C.L.R., 330 ; 15 A.L.R., 241. 

King, The v. Beecham & Co., (1910) V.L.R., 
204; 31 A.L.T., 183; 16 A.L.R., 173, ap- 
plied. Annear v. Inskip, (1910) V.L.R., 
235 ; 31 A.L.T., 220 ; 16 A.L.R., 276. 

King, The, Heward v., 3 C.L.R., 117 ; 11 

A.L.R., 494, followed. In re Draper ; 

Graham v. Draper, (1910) V.L.R., 376; 32 
A.L.T., 34 ; 16 A.L.R., 370. 

King, The, Trainer v., 4 C.L.R., 156 ; 13, 
A.L.R., 53, discussed. E. v. Schiffman, 
(1910) V.L.R., 348; 32 A.L.T., 28; 16 
A.L.R., 346. 

King, Brown & Co., Anglo-American 
Brush Electric Light Corporation v., (1892) 
A.C., 367, applied. N. Guthridge Ltd. v. 
Wilfley Ore Concentrator Syndicate Ltd., 3 
C.L.R., 583 ; 12 A.L.R., 398. 

King, Toronto Ry. Co. v., (1908) A.C., 260, 
distinguished. Fraser v. Victorian Railways 
Commissioners, 8 C.L.R., 54 ; 15 A.L.R., 93. 

King, Weekes v., 15 Cox C.G., 733, followed. 
Rider v. M' Kell, (1908) V.L.R., 110; 29 
A.L.T., 77 ; 13 A.L.R., 513. 

Kingsbury v. Walter, (1901) A.C., 187, dis- 
tinguished. In re Jones ; Harris v. Jones, 
(1910) V.L.R., 306; 32A.L.T., 3; 16 A.L.R., 
266. 



LXXVII 



CASES FOLLOWED, OVER-RULED, &c. 



LXXVIII 



Knapp's Settlement, In re ; Knapp v. Vas- 
Sall, (1895) 1 Ch., 91, plan of distribution 
adopted. In re Hobson ; Hobson v. Sharp, 
(1907) V.L.R., 724; 29 A.L.T., 125; 13 
A.L.R., 703. 

Knox v. Bible, (1907) V.L.R., 485; 29 
A.L.T., 23 ; 13 A.L.R., 352, approved. 
Macmanamny v. King, (1907) V.L.R., 535 ; 
28 A.L.T., 250 ; 13 A.L.R., 258. 

Laidlaw v. Hastings Pier Co. (referred to in 
Hudson on Building Contracts), discussed and 
applied. Briscoe & Co. v. Victorian Rail- 
ways Commissioners, (1907) V.L.R., 523 ; 29 
A.L.T., 17 ; 13 A.L.R., 308. 

Lambe v. Eames, L.R. 6 Ch., 597, followed. 
In re Lawn ; Ballarat Trustees dbc. Co. v. 
Perry, (1911) V.L.R., 318; 33 A.L.T., 25; 
17 A.L.R., 311. 

Lawrence, Brand v., 1 Q.B.D., 344, fol- 
lowed. L. Osborn & Go. Ltd. v. Davidson 
Brothers, (1911) V.L.R., 416 ; 33 A.L.T., 66 ; 
17 A.L.R., 448. 

Leapingwell, Page v., 18 Ves., 463, dis 
tinguished. a? Beckett v. Trustees Executors 
dbc. Co. Ltd., 5 C.L.R., 512. 

Le Cocq, Cundy v., 13 Q.B.D., 207, followed. 
Davies v. Young, (1910) V.L.R., 369; 32 
A.L.T., 39 ; 16 A.L.R., 368. 

Lee, Re, 28 V.L.R., 510; 22 A.L.T., 117; 
6 A.L.R., 235, approved. In re Howell, 
(1906) V.L.R., 223 ; 27 A.L.T., 172 ; 12 
A.L.R., 29. 

Lehane, Trent Brewery v., 21 V.L.R., 283 ; 
1 A.L.R., 89, followed. Sack v. Wolsten- 
crofl, 29 A.L.T., 85 ; 13 A.L.R., 588. 

Le Mesurier v. Le Mesurier, (1895) A.C., 517, 
followed. Forster v. Fcrsler, (1907) V.L.R., 
159 ; 28 A.L.T., 144 ; 13 A.L.R., 33. 

Lester v. Torrens, 2 Q.B.D., 403, followed. 
McKinnon v. Colborne, (1911) V.L.R., 486; 
33 A.L.T., 117 ; 17 A.L.R., 524. 

Lindley, Porteous v., 28 V.L.R., 606 ; 24 
A.L.T., 139 ; 9 A.L.R., 25, distinguished. 
Annear v. Inskip, (1910) V.L.R., 235; 31 
A.L.T., 220 ; 16 A.L.R., 276. 

Little, Bowden v., 4 C.L.R., 1364; 13 
A.L.R., 689, followed. H. Beecham ds Co. v. 



R. W. Cameron do Co., (1910) V.L.R., 19 ; 
31 A.L.T., 100; 15 A.L.R., 598. 

Liverpool, Corporation of, Scott v., 3 DeG. 
& J., at p. 368, discussed and explained. 
Briscoe ds Co. v. Victorian Railways 
Commissioners, (1907) V.L.R., 523 ; 29 
A.L.T., 17 ; 13 A.L.R., 308. 

Lockyer, Cowan & Sons v., 1 C.L.R., 460 ; 
10 A.L.R. (C.N.), 63, distinguished. Sargood 
Brothers v. Commonwealth, 11 C.L.R., 258 ; 
16 A.L.R., 483. 

Logan v. Bank of Scotland (No. 2), (1906) 
1 K.B., 141, considered and applied. Mari- 
time Insurance Co. Ltd. v. Geelong Harbour 
Trust Commissioners, 6 C.L.R., 194 ; 14 
A.L.R., 424. 

Londesborough, Scholefield v., (1896) A.C., 
514, followed. Colonial Bank of Australasia 
v. Marshall, (1906) A.C., 559. 

London and Brighton Railway Co. v. Wat- 
son, 3 C.P.D., 429, followed. Borsum v. 
Smith, (1907) V.L.R., 72 ; 28 A.L.T., 89 ; 12 
A.L.R., 495. 

London and South-Western Ry. Co., 
Wakelin v., 12 App. Cas., 41 , applied. Fraser 
v. Victorian Railways Commissioners, 8 
C.L.R., 54 ; 15 A.L.R., 93. 

London, Corporation of City of and Hohen- 
zollern, Re, 54 L.T.N.S., 596, distinguished. 
Briscoe & Co. v. Victorian Railways Com- 
missioners, (1907) V.L.R., 523; 29 A.L.T., 
17: 13 A.L.R., 308. 

London &c. Discount Co. v. Drake, 6 
C.B.N.S., 798, followed. Armstrong v. Duke 
of Wellington G. M. Co. No Liability, 3 
C.L.R., 1028 ; 12 A.L.R., 316. 

London, Edinburgh and Glasgow Assurance 
Co., Handley v., (1902) 1 K.B., 350, com- 
mented on. Armstrong v. Great Southern 
G.M. Co. N.L., 12 C.L.R., 382 ; 17 A.L.R., 
377. 

Long & Co., In re, 20 Q.B.D., 316, applied. 
In re Nolan (No. 1), 30 A.L.T: (Supplement), 
1 ; 14 A.L.R. (C.N.), 21. 

Lonsdale, Kelly v., (1906) 2 K.B., 486, 
distinguished. Rider v. Dunn, (1908) V.L.R., 
377 ; 29 A.L.T.. 279 ; 14 A.L.R., 245. 



LXXIX 



CASES FOLLOWED, OVER-BULED, &c. 



LXXX 



Loring, Millington v., 6 Q.B.D., 190, not 

followed. Wilson v. Dun's Gazette, (1912) 
V.L.R., 342 ;• 34 A.L.T., 77 ; 18 A.L.R., 327. 

Lowe, Farrer v., 5 T.L.R., 234, followed. 
Ronald v. Harper, (1908) V.L.R, 074; 30 
A.L.T., 72 ; 14 A.L.R., 472 

Lowther v. Fraser : In re Fraser, (1904) 1 
Ch., 726, followed. In re Stead, (1908) 
V.L.R , 10 ; 29 A.L.T., 155 ; 13 A.L.R., 683. 

Lyell, Ex parte : In re Premier Permanent 
Building Society, 25 V.L.R., 77 ; 21 A.L.T., 
67 ; 5 A.L.R., 209, overruled. Fink v. 
Robertson, 4 C.L.R., 864; 13 A.L.R., 157. 

MacGregor, Vinnicombe v., 29 V.L.R. , 32 ; 
28 V.L.R., 144; 24 A.L.T., 200; 24 A.L.T., 

15 : 9 A.L.R., 60 ; 8 A.L.R., 141, discussed 
and disapproved. Nelson v. Walker, 10 
C.L.R., 560 ; 16 A.L.R., 285. 

MacDonough, Cohen v., (1906) V.L.R., 
521 ; 28 A.L.T., 97 ; 12 A.L.R., 447, dictum 
of Cussen, J., disapproved. Cohen v. Mac- 
Donough, (1907) V.L.R., 7 ; 28 A.L.T., 119 ; 
12 A.L.R., 566. 

Macintosh v. Dun, (1908) A.C., 390, dis- 
tinguished. Howe v. Lees, 11 C.L.R., 361 ; 

16 A.L.R., 605. 

Mackay, In re, 3 A.J.R., 10, discussed and 
distinguished. In re Cooper, 30 A.L.T. 
(Supplement), 13 ; 14 A.L.R. (C.N.), 43. 

Macmanamny v. McCulloch (or McMahon), 
18 A.L.T., 164 ; 3 A.L.R., 14, approved. 
Rogerson v. Phillips and O' Hagan, (1906) 
V.L.R., 272 ; 27 A.L.T., 166 ; 12 A.L.R., 
147. 

MacPherson, Cussen v., 6 A.L.T., 205, 
followed. Kelseyv. Caselberg, (1909) V.L.R., 
347 ; 31 A.L.T., 31 ; 15 A.L.R., 362. 

McAlinden v. McAlinden, 11 Ir. R. Eq., 
219, followed. In re Lawn ; Ballarat 
Trustees &c. Co. v. Perry, (1911) V.L.R., 
318; 33 A.L.T., 25; 17 A.L.R., 311. 

McCarthy, Connors v., 17 A.L.T. , 187 ; 2 
A.L.R. , 10, discussed. In re Lamrock, 
Brown and Hall's Costs, (1908) V.L.R., 238 ; 
29 A.L.T., 214 ; 14 A.L.R., 81. 

M'Cormick, R. v., 4 V.L.R. (L.), 46, dis- 
cussed. Adams v. Rogers, (1907) V.L.R., 
245; 28 A.L.T., 180; 13 A.L.R., 71. 



McCracken, Natonal Trustees Executors &c. 
Co. v., 19 A.L.T., 175 ; 4 A.L.R., 31, discus- 
sed. In re Black ; Black v. Melbourne Hos- 
pital, (1911) V.L.R., 280 ; 33 A.L.T., 2 ; 17 
A.L.R., 240. 

McCulloch (or McMahon), Macmanamny v., 
18 A.L.T., 164; 3 A.L.R., 14, approved. 
Rogerson y. Phillips and O' Hagan, (1906) 
V.L.R., 272; 27 A.L.T., 166; 12 A.L.R., 
147. 

McCulloch v. Maryland, 4 Wheat., 316, 
approved and applied by majority of Court. 
Held, by Higgins, J., inapplicable. Baxter 
v. Commissioners of Taxation ; Flint v. 
Webb, 4 C.L.R., 1087, 1178 ; 13 A.L.R., 313., 

McGaw, In re, 4 N.S.W. S.R., 591, dis- 
cussed and disapproved. In re Moore ; 
Fanning v. Fanning, (1907) V.L.R., 639 ; 29 
A.L.T., 138; 13 A.L.R., 507. 

McGee v. Wolfenden, (1907) V.L.R., 195; 
28 A.L.T., 163 ; 13 A.L.R., 51, distinguished. 
Biggs v. Lamley, (1907) V.L.R., 300: 28 
A.L.T., 202 ; 13 A.L.R., 144. 

McGinnis, Whiting v., (1909) V.L.R., 250; 
30 A.L.T., 207 ; 15 A.L.R., 203, approved. 
In re Rosenthal ; Rosenthal v. Rosenthal. 1 1 
C.L.R., 87 ; 16 A.L.R., 455. 

McKenzie, Stephens v., 29 V.L.R., 652; 
25 A.L.T., 239 ; 10 A.L.R., 106, approved. 
Swinburne v. David Syme & Co., (1909) 
V.L.R., 550 ; 31 A.L.T., 81 ; 15 A.L.R., 579. 

McKenzie, Thompson v., (1908) 1 K.B., at 
p. 908, dictum of Lord Alverstone approved. 
McKinnon v. Colborne, (1911) V.L.R., 486; 
33 A.L.T., 117 ; 17 A.L.R., 524. 

McKie v. McKie, 23 V.L.R., 489; 19 
A.L.T., 190 ; 4 A.L.R., 98, followed. Stuckey 
v. Trustees, Executors and Agency O. Ltd., 
(1910) V.L.R., 55; 31 A.L.T., 157; 16 
A.L.R., 65. 

M'Kinley, Steele v., 5 A.C., 754, discussed. 
Ferrier v. Stewart, 15 C.L.R., 32 ; 18 A.L.R., 
262. 

Maddern, Harrison San Miguel & Co. v., 

(1905) V.L.R., 400; 26 A.L.T., 215; 11 
A.L.R., 178, over-ruled. The King v. 
Beecham; Ex parte Cameron, (1910) V.L.R., 
204 ; 31 A.L.T., 183 ; 16 A.L.R., 173. 



LXXXI 



CASES FOLLOWED, OVER- RULED, &c. 



LXXXII 



Mailes, In re, (1908) V.L.R., 269; 29 

A.L.T., 263 ; 14 A.L.R., 181, explained. 

In re Bennett, (1909) V.L.R., 205 ; 30 A.L.T., 
181 ; 15 A.L.R., 141. 

Marks v. Pett, 10 V.L.R. (L.), 342, com- 
mented on. Ambler & Co. Proprietary Ltd. 
v. Clayton, (1909) V.L.R., 56; 30 A.L.T., 
113 ; 14 A.L.R., 730 

Marriott v. Hosken, (1911) V.L.R., 54 ; 32 
A.L.T., 115; 16 A.L.R., 604, explained. 
Lambourn v. Hosken, (1912) V.L.R., 394 ; 
34 A.L.T., 101 ; 18 A.L.R., 371. 

Martin, In re, 2 A.L.T., 48, discussed. In 
re Ross, 31 A.L.T. (Supplement), 3 ; 15 
A.L.R. (C.N.), 13. 

Martin, Chia Gee v., 3 C.L.R., 649; 12 
A.L.R., 425, discussed and distinguished. 
Ah Sheung v. Lindberq, (1906) V.L.R., 323 ; 
27 A.L.T., 189 ; 12 A.L.R., 190. 

Maryland, McCulloch v., 4 Wheat. 316, 
approved and applied by majority of Court. 
Held, by Higgins, J., inapplicable. Baxter 
v. Commissioners of Taxation ; Flint v. 
Webb, 4 C.L.R., 1087, 1178 ; 13 A.L.R., 313. 

May v. Chidley, (1894) 1 Q.B., 451, followed. 
Colonial Bank of Australia Ltd. v. Nicholl, 
(1907) V.L.R., 402 ; 13 A.L.R., 297. 

Maynard, Re, 12 V.L.R., 313, followed. 
In re Hoarey, (1906) V.L.R., 437 ; 28 A.L.T., 
93; 12 A.L.R., 450. 

Melbourne Tramway and Omnibus Co. Ltd., 
Holford v., (1909) V.L.R., 497: 29 A.L.T., 
112 : 13 A.L.R., at p. 677, doubted. Arm- 
strong v. Great Southern G. M. Co., No 
Liability, 12 C.L.R , 382 ; 17 A.L.R., 377. 

Menzies, Betts v., 10 H.L.C., 1 17, applied. 
N. Guthridge Ltd. v. Wilfley Ore Concen- 
trator Syndicate Ltd., 3 C.L.R., 583 ; 12 
A.L.R., 398. 

Miller, Kennedy v., 4 W.W. & a'B. (L.), 255, 
followed. Equity Trustees Executors and 
Agency Co. Ltd. v. Harston, (1908) V.L.R., 
23 ; 29 A.L.T., 131 ; 13 A.L.R., 686. 

Millin, Re. 2 V.L.R. (I. P. & M.), 58, 86, 
explained. In re Winter ; Winter- Irving v. 
Winter, (1907) V.L.R., 546 ; 29 A.L.T., 4 ; 
13 A.L.R., 298, approved. In re Howell, 
(1906) V.L.R., 223; 27 ALT., 172; 12 
A.L.R., 29. 



Millington v. Loring, 6 Q.B.D., 190, not 
followed. Wilson v. Dun's Gazette, (1912) 
V.L.R., 342 ; 34 A.L.T., 77 ; 18 A.L.R., 327. 

Mills, Re, 58 L.T., 871, followed. HT Don- 
ald v. Bank of Victoria, (1906) V.L.R., 199 ; 
27 A.L.T., 177; 12 A.L.R., 120. 

Mills, R. v., 7 Cox C.C., 263, followed. 
R. v. Perera, (1907) V.L.R., 240 ; 28 A.L.T., 
176; 13 A.L.R., 116 

Mitchell v. Crawshaw, (1903) 1 K.B., 701, 
considered. O'Connor v. Anderson, (1909) 
V.L.R., 1 : 30 A.L.T , 145 ; 15 A.L.R., 22. 

Mitchell and Izard and the Governor of 
Cevlon, In re, 21 Q.B.D., 408, followed. Re 
Freeman and Kempster, (1909) V.L.R., 394 
31 A.L.T., 42 ; 15 A.L.R., 444. 

Moffatt v. Collector of Imposts, 22 V.L.R. 
164; 18 A.L.T., 144; 2 A.L.R., 255, ap 
pi'oved. Davidson v. Armytaqe, 4 C.L.R. 
205 .- 12 A.L.R., 538. 

Monaghan, Foley v., 14 A.L.T., 240, dis 
cussed. Adams v. Rogers, (1907) V.L.R. 
245 ; 28 A.L.T., 1 80 : 13 A.L.R., 71. 

Monkton v. Attorney-General, 2 R. & My. 

147, not followed. In re Osmund ; Bennett 
v. Booty, (1908) V.L.R., 67 ; 29 A.L.T., 168 
13 A.L.R., 728. F.C., affirming Cussen, J., 
(1906) V.L.R., 455; 27 A.L.T., 2L8 ; 12 
A.L.R., 256. 

Montgomery v. Ah Loey, 2 A.L.R., 207, dis- 
tinguished. English v. Potter, (1908) V.L.R., 
632 ; 30 A.L.T., 91 : 1<1 A.L.R., 559. 

Mooney v. Still, (1909) V.L.R., 227; 30 
A.L.T., 191 ; 15 A.L.R., 197, followed. 
Mooney v. McKeand, (1909) V.L.R., 294 ; 30 
A.L.T., 225 ; 15 A.L.R., 280. 

Moore, Bevan v., 24 V.L.R., 792: 20 
A.L.T., 238; 5 A.L.R., 100, explained. 
McCallum v. Pur»is, (1906) V.L.R., 578 ; 28 
A.L.T., 31 ; 12 A.L.R., 329. 

Moore v. Moore, (1892) P., 382, applied. 
Strong v. Strong, (1910) V.L.R., 122; 31 
A.L.T., 156; 16 A.L.R., 62. 

Moore, R. v. ; Ex parte Myers, 10 V.L.R. 
(L.1, 322 : 6 A.L.T., 151, followed. Equity 
Trustees Executors and Agency Co. Ltd. v. 
Harston, (1908) V.L.R., 23 ; 29 A.L.T.. 131 ; 
13 A.L.R., 686. 



LXXXIII 



CASES FOLLOWED, OVER-RULED, &c. 



LXXXIV 



Morgan, In re, 24 Ch. D., 114, followed. 
In re Gheke or Akehurst ; Cheke v. Hamilton, 
(1910) V.L.R., 310: 32 A.L.T., 5 ; 16A.L.R., 
24fi. 

Morgan & Co. v. Windover & Co., 7 R.P.C., 
131, applied. Linotype Co. Ltd. v. Mounsey, 
9 C.L.R., 194 ; 15 A.L.R., 310. 

Morley, In re, (1895) 2 Ch., 738, followed. 
Macartney v. Macartney, 33 A.L.T., 183 ; 18 
A.L.R., 1. 

Morrice v. Morrice, 14 N.S.W.L.R. (Eq.), 
211, followed. In re Gonnell, (1910) V.L.R., 
471 ; 32 A.L.T., 83 ; 16 A.L.R., 504 

Morris, Abbott v., 24 A.L.T., 228 : 9 A.L.R., 
96, not followed as to costs of trustee in 
regard to his commission. Macartney v. 
Kesterson, (1907) V.L.R., 22fi ; 28 A.L.T., 
170; 13 A.L.R., 14. 

Moubray v. Riordan, 15 V.L.R., 354 : 11 
A.L.T., 19, followed. Kelsey v. Caselberg, 
(1909) V.L.R., 347 ; 31 A.L.T., 31 : 15 
A.L.R., 362. 

Moylan v. Nolan, 27 A.L.T. (Supplement), 
16 ; 12 A.L.R. (C.N.), 13, approved. Town- 
sing v. Egan, 29 A.L.T. (Supplement), 29 ; 
14 A.L.R. (C.N.), 18. 

Mullavey, International Harvester Co. of 
America v., (1906) V.L.R., 659 ; 28 A.L.T., 
51 ; 12 A.L.R., 380, approved. Colonial 
Bank of Australasia Ltd. v. Martin, (1912) 
V.L.R., 383 : 34 A.L.T., 47 ; 18 A.L.R., 325. 

Murphy v. Ainslie, (1905) V.L.R., 350; 
26 A.L.T., 202 ; 11 A.L.R., 163, applied. 

In re Buckhurst ; Equity Trustees Executors 
and Agency Co. v. Buckhurst, (1907) V.L.R., 
252 ; 28 A.L.T., 190 ; 13 A.L.R., 74. Also, 

In re Staughton ; Oliver v. Staughton, (1910) 
V.L.R., 415 ; 32 A.L.T., 63 ; 16 A.L.R., 443. 

Municipal Corporation of Toronto v. Virgo, 

(1896) App. Cas., 88, followed. Co-operative 
Brick Co. Proprietary Ltd. v. Hawthorn, 
Mayor &c. of City of, 9 C.L.R., 301 ; 15 
A.L.R., 479. 

Muntz v. Smail, 8 C.L.R., 262 : 15 A.L.R., 
162, discussed. In re McConnell ; Macfar- 
lane v. McDonald, (1912) V.L.R., 102 ; 33 
A.L.T., 195 ; 18 A.L.R., 90. 



Murray, Ritchie v. ; In re Ritchie, 28 

V.L.R., 255 ; 24 A.L.T., 62 ; 8 A.L.R., 211, 
distinguished. Ex parte Edmonds and Har- 
rison, 34 A.L.T., 105 ; 18 A.L.R., 41. 

Mutch, Rogers v., 10 Ch. D., 25, followed. 
In re Thompson ; Brake v. Mason, (1910) 
V.L.R., 251; 31 A.L.T., 210: 16 A.L.R., 
266. 

Mutual Life &c. of New York, Hambrough 
v., 72 L.T., 141, disapproved. Dalgety & 
Co. Ltd. v. Australian Mutual Provident 
Society, (1908) V.L.R., 481; 30 A.L.T., 4; 
14 A.L.R., 299. 

Myers, Ex parte; R. v. Moore, 10 V.L.R: 
(L.), 322 ; 6 A.L.T., 151, followed. Equity 
Trustees Executors and Agency Co. Ltd. v. 
Harston, (1908) V.L.R., 23 ; 29 A.L.T., 131 ; 
13 A.L.R., 686. . 

Napper, Jackson v., 35 Ch. D., 162, at p. 
172, cited and approved. Equity Trustees 
Executors and Agency Co. Ltd. v. Harston, 
(1908) V.L.R., 23 ; 29 A.L.T., 131 ; 13 
A.L.R., 686. 

National Trustees Executors &c. Co. v. 
McCracken, 19 A.L.T., 175 ; 4 A.L.R., 31, 
discussed. In re Black ; Black v. Mel- 
bourne Hospital, (1911) V.L.R., 280; 33 
A.L.T., 2 ; 17 A.L.R., 240. 

National Trustees Executors &c. Co. v. 
O'Hea, 29 V.L.R., 814; 25 A.L.T., 230; 
10 A.L.R., 81, followed and applied. In re 
Draper ; Oraham v. Draper, (1910) V.L.R., 
376; 32A.L.T., 34; 16 A.L.R., 370. 

Naylor, Slattery v., 13 App. Cas., 446, dis- 
tinguished. Co-operative Brick Co. Pro- 
prietary Ltd. v. Hawthorn, Mayor, dsc. of 
of, 9 C.L.R., 301 ; 15 A.L.R., 479. 



Neale, Pasquier v., (1902) 2 K.B., 287, 
observations of Lord Alverstone distinguished. 
Mooney v. McKeand, (1909) V.L.R., 294 ; 30 
A.L.T., 225 ; 15 A.L.R., 280. 

Neilson v. Harford, 1 Web. Pat. Cas., 295, 
distinguished. Gillies v. Hartnett Patent 
Milking Co. Ltd., 31 A.L.T., 164 ; 16 A.L.R., 

88. 

Nevin, Fenton v., 31 L.R. Tr., 478, followed. 
In re Lewis ; Oollan v. Pyle, 29 A.L.T., 36 ; 
13 A.L.R., 431. 



LXXXV 



CASES FOLLOWED, OVER-RULED, &c. 



LXXXVI 



New, In re, (1901) 2 Ch., 534, applied. 
Fomsgard v. Fomsgard, (1912) V.L.R., 209 ; 
34 A.L.T., 11 ; 18 A.L.R., 220. 

New Koh-i-noor Co. v. Williams, 13 V.L.R., 
435; 8 A.L.T., 169, discussed. In re Lam- 
rock, Brown ani Halts Costs, (1908) V.L.R., 
238 ; 29 A.L.R., 214 ; 14 A.L.R., 81 - 

Nicholl, Colonial Bank of Australia Ltd. v., 
(1907) V.L.R.. 402; 28 ALT., 222; 13 
A.L.R., 297, followed. Australian Widovis' 
Fund <fsc. Society Ltd. v. Story, (1907) V.L.R., 
594 : 29 A.L.T., 110 ; 13 A.L.R.. 588. 

Nicholls, Shanahan v., 27 A.L.T. (Supple- 
ment), 8; 11 A.L.R. (C.N.), 65, followed. 
Ambler & Co. Proprietary Ltd. v. Clayton, 
29 A.L.T. (Supplement), 28: 14 A.L.R. 
(C.N.), 17. 

Nicholson, Sanderson v., (1906) V.L.R., 
371 ; 27 A.L.T., 215; 12 A.L.R., 208, not fol- 
lowed. Honeybone v. Glass, (1908) V.L R., 
466 ; 30 A.L.T., 54 ; 14 A.L.R., 345. 

Nolan, Moylan v., 27 A.L.T. (Supplement), 
16 ; 12 A.L.R. (C.N.), 13, approved. Towns- 
ing v. Egan, 29 A.L.T. (Sup.); 29 ; 14 A.L.R. 
(C.N.), 18 

Northcote, Skrymsher v., 1 Swanst., 566, 
distinguished. In re Stead, (1908) V.L.R., 
10 ; 29 A.L.T., 155 ; 13 A.L.R., 683. 

Norton, Re, 3 V.L.R. (LP. & M.), 58, dis- 
tinguished. In re Ghillmetei, (1907) V.L.R., 
657 ; 29 A.L.T., 81 ; 13 A.L.R., 519. 

O'Farrell v. Syme, 16 V.L.R., 422; 12 
A.L.T., 11, approved. Orchard v. Oriental 
Timber Corporation Ltd., (1910) V.L.R., 192 ; 
31 A.L.T., 198; 16 A.L.R., 213. 

Ogle v. Lord Sherborne : In re Wborwood, 

34 Ch. D., 446, distinguished. In re Lough- 
lin; Acheson v. O'Meara, (1906) V.L.R., 
597 ; 28 A.L.T., 28 ; 12 A.L.R., 411. 

O'Grady, In re,. 26 V.L.R., 171 ; 6 A.L.R., 
162, followed. In re Camm, (1906) V.L.R., 
517 ; 28 A.L.T., 39; 12 A.L.R., 333. 

O'Hea, National Trustees Executors &c. Co. 
v., 29 V.L.R., 814; 25 A.L.T., 230; 10 
A.L.R., 81, followed and applied. In re 
Draper ; Graham v. Draper, (1910) V.L.R., 
376; 32 A.L.T., 34; 16 A.L.R., 370. 



O'Neill, In re, (1905) V.L.R., 64; 26 

A.L.T., 108, discussed. In re Nolan, 33 

A.L.T. (Supplement), 2; 17 A.L.R. (C.N.), 
14 

Ormerod, Paton v. ■ In re Bagot, (1893) 3 
Ch., 548, followed. In re Stead, (1908) 
V.L.R., 10 ; 29 A.L.T., 155 ; 13 A.L.R,, 683. 

Ormis ton, In re • Young v. Ormiston, 1 1 
V.L.R., 285, followed. In re Reed, (1911) 
V.L.R., 232 : 32 A.L.T., 168 : 17 A.L.R., 
164. 

Osborne, Peacock v., 4 C.L.R., 1564 ; 13 
A.L.R., 565, applied. Bayne v. Blake, 5 
C.L.R.. 497 ; 14 A.L.R., 103. 

Osborne, R. v., (1905) 1 K.B., 551. Obser- 
vations at p. 556 doubted by Madden, C.J. 
R. v. McNeill, (1907) V.L.R., 265; 28 
A.L.T., 182 ; 13 A.L.R., 99. 

Outtrim, Webb v., (1907) A.C., 81, not 
followed. Baxter v. Commissioners of Taxa- 
tion ; Flint v. Webb, 4 C.L.R., 1087, 1178; 
13 A.L.R., 313. 

Page v. Leapingwell, 18 Ves. 463, distin- 
guished, a' Beckett v. Trustees Executors 
&c. Co. Ltd., 5 C.L.R., 512. 

Palmer v. Bourke, 28 V.L.R., 275; 24 
A.L.T., 11 ; 8 A.L.R., 151, distinguished. 
Doig v. Keating, (1908) V.L.R., 118; 29 
A.L.T., 171 ; 14 A.L.R., 20. 

Palmer v. Culverwell, Brooks & Co., 85 
L.T., 758, applied by Isaacs, J. Muntz v. 
Smail, 8 C.L.R., 262 ; 15 A.L.R., 162. 

Panam, Graves v., (1905) V.L.R., 297 ; 26 
A.L.T., 232; 11 A.L.R., 180, distinguished. 
Graham v. Matoorekos, (1907) V.L.R., 27Q ; 
28 A.L.T., 173 ; 13 A.L.R., 113. 

Papworth, Williams v. ,(1900) A.C., p. 566, 

followed. In re Stevens ; Trustees Executors 
and Agency Co. Ltd. v. Teague, (1912) 
V.L.R., 194; 33 A.L.T., 233; 18 A.L.R., 
195. 

Parke, R. v., (1903) 2 K.B., 432, discussed. 
Packer v. Peacock, 13 C.L.R., 577 : 18 A.L.R., 
70." 

Parker, Suckling v., (1906) 1 K.B., 527, dis- 
tinguished. Gunner v. Payne, (1908) V.L.R. , 
363 ; 29 A.L.T., 264 ; 14 A.L.R., 243 



LXXXVII 



CASES FOLLOWED, OVER-RULED, &c. 



LX XXVIII 



Parkin, R. v., 1 Mood. C.C., 45, approved. 
David Syme & Go. v. Swinburne, 10 C.L.R., 
43 ; 16 A.L.R., 93. 

Pasauier v. Neale, (1902) 2 K.B., 287, 
observations of Lord Alverstone distinguished. 
Mooney v. McKeand, (1909) V.L.R., 294; 
30 A.L.T., 225 : 15 A.L.R., 280. 

Paterson, British Homes Assurance Corpora- 
tion v., (1902) 2 Ch., 404, distinguished. Reid 
v. Silberberq, (1906) V.L.B., 126 

Paton v. Ormerod; In re Bagot, (1893) 3 
Ch., 548, followed. In re Stead, (1908) 
V.L.R., 10; 29 A.L.T., 155; 13 A.L.R., 
683. 

Peacock v. Osborne, 4 C.L.R., 1564 ; 13 
A.L.R., 565, applied. Bayne v. Blake, 5 
C.L.R., 497 ; 14 A.L.R., 103. 

Peatling v. Watson, (1909) V.L.R., 198; 
30 A.L.T., 176 ; 15 A.L.R., 150, overruled. 
Howe v. Lees, 11 C.L.R., 361 ; 16 A.L.R., 605 

Pedder, D'Emden v., 1 C.L.R., 91 ; 10 
A.L.R. (C.N.), 30, application of considered. 
Federated Engine- Drivers and Firemen's 
Association of Australasia v. Broken Hill 
Proprietary Co. Ltd., 12 C.L.R., 398 ; 17 
A.L.R , 285 

Perkes, Deeley v., 13 R.P.C., 581. followed 

on question of amendment. Moore v. Phil- 
lips, 4 C.L.R., 1411 ; 13 A.L.R., 424. 

Permezel v. Hollingworth, (1905) V.L.R., 
321; 26 A.L.T., 213; 11 A.L.R., 217, fol- 
lowed. In re Ralston ; Perpetual Executors 
and Trustees Association v. Ralston, (1906) 
V.L.R., 689 ; 28 A.L.T., 45 ; 12 A.L.R., 365, 
distinguished. Cattanach v. Macpherson, 
(1908) V.L.R., 390 ; 29 A.L.T., 259 ; 14 
A.L.R.. 214. 

Perpetual Executors and Trustees Associa- 
tion of Australia v. Hosken, 14 C.L.R., 286 ; 
18 A.L.R., 201, followed. Mahoney v. Hos- 
ken, 14 C.L.R., 379 ; 18 A.L.R., 205. 

Peterswald v. Bartley, 1 C.L.R., 497, prin- 
ciples of interpretation applied. Huddart 
Parker & Co. Proprietary Ltd. v. Moorehead ; 
Appleton v. Moorehead, 8 C.L.R., 330; 15 
A.L.R.,- 241. 



Pett, Marks v., 10 V.L.R. (L.), 342, com- 
mented on. Ambler & Co. Proprietary Ltd. 
v. Clayton, (1909) V.L.R., 56 ; 30 A.L.T., 
113; 14 A.L.R., 730. 

Porteous v. Lindley, 28 V.L.R., 606; 24 
A.L.T., 139 ; 9 A.L.R., 25, distinguished. 
Annear v. Inskip, (1910) V.L.R., 235 ; 31 
A.L.T., 220 ; 16 A.L.R., 276. 

Powell v. Kempton Park Racecourse Co. 
Ltd., (1899) A.C., 143, followed as to " user." 
McCann v. Morgan, (1912) V.L.R., 303 ; 34 
A.L.T., 43 • 18 A.L.R., 334. 

Power, In re, 26 A.L.T. (Supplement), 10 ; 
11 A.L.R. (C.N.), 37, disapproved and not 
followed. In re Alderman, 28 A.L.T. (Sup- 
plement), 13 : 13 A.L.R. (C.N.). 6. 

Premier Permanent Building Society, In re ; 
Ex parte Lyall, 25 V.L.R., 77 ; 21 A.L.T., 
67 ; 5 A.L.R., 209, overruled. Fink v. 
Robertson, 4 C.L.R., 864 ; 13 A.L.R., 157. 

Price v. Williamson • In re Williamson, 26 

A.L.T., 91 ; 10 A.L.R., 197, distinguished. 
In re Reed, (1911) V.L.R. , 232 ; 32 A.L.T., 
168 ; 17 A.L.R., 164. 

Prideaux, Sweeting v., 2 Ch. D., 413, dis- 
tinguished. In re Green ; Crowson v. Wild, 
(1907) V.L.R., 2S4; 28 A.L.T., 206: 13 
A.L.R., 121. 

Prior v. Sherwood, 3 C.L.R., 1054, followed 
as to "user." McCann v. Morgan, (1912). 
V.L.R., 303; 34 A.L.T., 43 ; 18 A.L.R., 334. 

Public Trustee, The, Rathbone v., 24 L.R. 

N.Z., 801, distinguished. Re Income Tax 

Acts, (1907) V.L.R., 358; 28 A.L.T., 215; 
13 A.L.R., 151. 

Purser, Kennedy v., 23 V.L.R., 530; 19 
A.L.T., 192 ; 4 A.L.R., 54, followed. O'Don- 
nell v. McKelvie, (1906) V.L.R., 207; 27 
A.L.T., 164 ; 12 A.L.R., 39. 

Quan Yick v. Hinds, 2 C.L.R., 345; 11 
A.L.R., 223, considered. Ex parte Dunn ; 
Ex parte Aspinall, (1906) V.L.R., 584; 28 
A.L.T., 72 ; 12 A.L.R., 418. 

Queensland National Bank, Barns v., 

3 C.L.R., 925, followed. Pendlebury v. Col 
onial Mutual &c. Society Ltd., 13 C.L.R., 
676 ; 18 A.L.R., 124. 



LXXXIX 



CASES FOLLOWED, OVER- RULED, &c. 



xc 



Queen, The, Kickham v., 8 V.L.R. (E.), 1, 
6; 3 A.L.T., 86, followed. The King v. 
Dale, (1906) V.L.R., 662; 28 A.L.T., 140; 

12 A.L.R., 549. 

Raikes v Ward, 1 Hare, 445, commented 
on. In re Lawn ; Ballarat Trustees <Soc. 
Co. v. Perry, (1911) V.L.R., 318 ; 33 A.L.T., 
25; 17 A.L.R., 311 

Rajah of Faridkote, Sirdar Gurdyal Singh 
v., (1894) A.C., 670, distinguished. Kelsey 
v. Caselberg, (1909) V.L.R., 347; 31 A.L.T., 
31 ; 15 A.L.R., 362. 

Randt Gold Mining Co. Ltd. v. Wainwright, 

(1901) 1 Ch., 184, doubted. Land Mortgage 
Bank of Victoria Ltd. v. Keid, (1909) V.L.R., 
284 ; 31 A.L.T., 9 ; 15 A.L.R., 234. 

Rathbone v. The Public Trustee, 24 L.R. 
N.Z., 801, distinguished. Re Income Tax 
Acts, (1907) V.L.R., 358 ; 28 A.L.T., 215 ; 

13 A.L.R., 151. 

Rawlins' Trusts, In re, 45 Ch., 299 ; (1892) 

A.C., applied. In re Munro ; National 
Trustees Erecutors &c. Co. of Australasia 
Ltd. v. Dunbar, (1910) V.L.R., 395 ; 32 
A.L.T., 41 : 16 A.L.R., 363. 

Read v. Friendly Society of Operative 
Stonemasons, (1902) 2 K.B., 732, distin- 
guished. Bond v. Morris, (1912) V.L.R., 
351 ; 34 A.L.T., 52 ; 18 A.L.R., 348. 

Rees v. Dunbar, 14 V.L.R., 645 ; 10 
A.L.T., 147, followed. Davis v. Davis and 
Hattriclc, (1912) V.L.R., 23 ; 33 A.L.T., 108 ; 
17 A.L.R., 607. 

Reid v. Deane, (1906) V.L.R., 138; 27 
A.L.T., 153 ; 12 A.L.R., 46, followed. In 
re Tonq, (1907) V.L.R., 338 ; 28 A.L.T., 200 ; 
13 A.L.R., 119. Not followed as regards 
liability for sewerage expenses. Macartney 
v. Macartney, 33 A.L.T., 183 : 18 A.L.R., 1. 

R. v. Barber, 3 A.L.R. (C.N.), 21, approved. 
R. v. Turnbull, (1907) V.L.R., 11 ; 28 A.L.T., 
103 ; 12 A.L.R., 551. 

R. Bell & Son, Gates v., (1902) 2 K.B., 38, 
distinguished. McKinnon v. Gange, (1910) 
V.L.R., 32 ; 31 A.L.T., 112 ; 15 A.L.R., 640. 

R. v. Brisac & Scott, 4 East., 164, followed. 
R. v. Kellow, (1912) V.L.R., 162 ; 33 A.L.T., 
203 ; 18 A.L.R., 170. 



R v. Brown, 24 Q.B.D., 357, followed. 
Rex v. Turnbull, (1907) V.L.R., 11 ; 28 
A.L.T., 103 ; 12 A.L.R., 551. 

R. v Burdett, 4 B. & A., 95, discussed. R. 
v. Waugh, (1909) V.L.R., 379 ; 31 A.L.T., 
37 : 15 A.L.R., 366. 

R. v. Collins ; Ex parte Collins, 7 V.L.R., 
74; 2 A.L.T., 118, followed. Ross v. Ross, 
(1909) V.L.R., 318: 30 A.L.T., 220; 15 
A.L.R., 305. 

R. v. Davies, (1906) 1 K.B., 32, discussed. 
Packer v. Peacock, 13 C.L.R., 577 ; 18 
A.L.R., 70. 

R. v. Ellis, (1899) 1 Q.B., 230, discussed. 
R. v. Waugh, (1909) V.L.R., 379 ; 31 A.L.T., 
37 ; 15 A.L.R., 366. 

R. v. Fitzgerald, 15 V.L.R., 40 ; 10 A.L.T., 

241, followed. Rex v. Turnbull, (1907) 
V.L.R., 11 ; 28 A.L.T., 103 ; 12 A.L.R., 551. 

R. v. Gibson, 18 Q.B.D., 537, considered. 
Knox v. Bible, (1907) V.L.R., 485 ; 29 
A.L.T., 23 ; 13 A.L.R,, 352. 

R. v. Gyngall, (1893) 2 Q.B., 232, con- 
sidered and applied. Goldsmith v. Sands, 4 
C.L.R., 1648 ; 13 A.L.R., 601. Explained. 
The King v. Lennie ; The King v. Mackenzie,. 
29 A.L.T., 56 ; 13 A.L.R., 505. 

R. V. Hensler, 11 Cox, 573, discussed. R.. 
v. Waugh, (1909) V.L.R., 379 ; 31 A.L.T., 37 ; 
15 A.L.R., 366. 

R. v. Huxley and Walsh, 8 V.L.R, (L.), 15 ; 
3 A.L.T., 96, followed. M c Liney v. Minster,. 
(1911) V.L.R., 347; 33 A.L.T., 33; 17 
A.L.R., 336. 

R. v. Justices of the County of London and. 
the London County Council, (1893) 2 Q.B., 476, 
followed. Mooney v. Anderson, (1907)' 
V.L.R., 623 ; 29 A.L.T., 42 ; 13 A.L.R., 471. 

Regina v. Justices of Heywood, 21 V.L.R., 
654 ; 17 A.L.T., 238, distinguished. Rich- 
ards v. Jager, (1909) V.L.R., 140; 30 A.L.T., 
163: 15 A.L.R., 119. 

R. v. M'Cormick, 4 V.L.R. (L.), 46, dis- 
cussed. Adams v. Rogers, (1907) V.L.R., 
245 ; 28 A.L.T., 180 ; 13 A.L.R., 71. 

R. v. Mills, 7 Cox C.C., 263, followed. R~ 
v. Perera, (1907) V.L.R., 240; 28 A.L.T.,- 
176 ; 13 A.L.R., 116. 



XCI 



CASES FOLLOWED, OVER-RULED, &c. 



xcn 



R. v. Moore ; Ex parte Myers, 10 V.L.R. 
<L.), 322 ; 6 A.L.T., 151, followed. Equity 
Trustees Executors and Agency Co. Ltd. v. 
Harston, (1908) V.L.R., 23 ; 29 A.L.T., 131 : 
13 A.L.R., 686. 

R. v. Osborne, (1905) 1 K.B., 551, observa- 
tions at p. 556, doubted by Madden, C.J. 
R. v. McNeill, (1907) V.L.R., 265; 28 
A.L.T., 182 ; 13 A.L.R., 99. 

R. v. Parke, (1903) 2 K.B., 432, discussed. 
Packer v. Peacock, 13 C.L.R., 577 ; 18 A.L.R., 
70 

R. v. Parkin, 1 Mood. C.C., 45, approved. 
David Syme & Co. v. Swinburne, 10 C.L.R., 
43 ; 16 A.L.R., 93. 

R. v. Reynolds, 2 Cox C.C., 170, followed. 
R. v. Hill and Marshall, (1909) V.L.R., 491 ; 
31 A.L.T., 76 ; 15 A.L.R., 523. 

R. v. Roche, 13 V.L.R., 150 : 8 A.L.T., 193, 
discussed. R. v. Sehiffman, (1910) V.L.R., 
348 ; 32 A.L.T., 28 ; 16 A.L.R., 346. 

R. v. Sayers, 4 W.W. & a'B. (L.), 46, ap- 
plied. Porter v. Martin, (1910) V.L.R. , 38 ; 

31 A.L.T., 105 ; 16 A.L.R., 12., followed 

32 A.L.T. (Supplement), 8 ; 16 A.L.R. (C.N.), 
18. 

R. v. Stowers, 24 A.L.T., 52 ; 8 A.L.R., 
134, considered. R. v. Downey, (1910) 
V.L.R., 361 ; 32 A.L.T., 14 ; 16 A.L.B., 319. 

R. v. Templeton ; Ex parte England, 3 
V.L.R. (L.), 305, followed. Burvett v. 
Moody, (1909) V.L.R., 126 ; 30 A.L.T., 160 ; 
15 A.L.R., 91. 

R. v. Tolson, 23 Q.B.D., 168, applied. 
Billingham v. Oaten, (1911) V.L.R., 44; 32 
A.L.T., 170; 17A.L.R., 36. 

R. v. Vodden, Dears., 229, approved. 
David Syme & Co. v. Swinburne, 10 C.L.R., 
43; 16 A.L.R , 93., 

R. v. Webb, (1896) 1 Q.B., 487, followed. 
Rees v. Downer, (1910) V.L.R., 5 ; 31 A.L.T., 
97 ; 15 A.L.B., 360. 

Reid, James Gillespie & Co. Ltd. v., (1905) 
V.L.R., 101 ; 26 A.L.T., 154 ; 11 A.L.R., 12, 
considered. Land Mortgage Bank of Vic- 
toria Ltd. v. Reid, (1909) V.L.R., 284; 31 
A.L.T., 9 ; 15 A.L.R., 234. 



Reuter Huieland & Co. v. Sala & Co., 4 
C.P.D., 239, distinguished. L. Osborn <fc 
Co. Ltd. v. Davidson Brothers, (1911) V.L.R., 
416 ; 33 A.L.T., 66 ; 17 A.L.R., 448. 

Reynolds, R. v., 2 Cox CO., 170, followed. 
R. v. Hilland Marshall, (1909) V.L.R., 491 ; 
31 A.L.T., 76 : 15 A.L.R., 523. 

Rice, Butler v., (1910) 2 Ch., 277, applied. 
Cuddigan v. Poole, 33 A.L.T., 210 ; 18 
A.L.R., 120. 

Richards v. Jager, (1909) V.L.R., 140; 30 
A.L.T., 163; 15 A.L.R., 119, approved. 
Swinburne v. David Syme & Co., (1909) 
V.L.R., 550 ; 31 A.L.T., 81 ; 15 A.L.R, 579. 

Richards v. Richards, 17 V.L.R., 758; 
13 A.L.T., 133, approved. Kemp v. Kemp, 
(1907) V.L.R., 718; 29 A.L.T., 92; 13 
A.L.R., 615. 

Rickerby v. Rickerby, 25 A.L.T., 95; 10 
A.L.R., 30, followed. Farrer v. Farrer, 
(1907) V.L.R., 382 ; 28 A.L.T., 221 ; 13 
A.L.R., 236. 

Ridge v. Ridge, 22 A.L.T., 44 ; 6 A.L.R., 
149, applied. Maddock v. Maddock, (1911) 
V.L.R., 127 ; 32 A.L.T., 124 ; 17 A.L.R., 
66. 

Riordan, Moubray v., 15 V.L.R., 354; 11 
A.L.T., 19, followed. Kelsey v. Caselberg, 
(1909) V.L.R., 347 ; 31 A.L.T., 31 : 15 
A.L.R., 362. 

Ritchie, In re ; Murray v. Ritchie, 28 

V.L.R., 255 ; 24 A.L.T., 62 ; 8 A.L.R., 211, 
distinguished. Ex parte Edmonds and Har- 
rison, 34 A.L.T., 105 : 18 A.L.R., 41. 

Roberts v. Akeroyd : In re Akeroyd's 

Settlement, (1893) 3 Ch., 363, distinguished. 
In re Lyons : Grant v. Trustees Executors 
&c. Co. Ltd., (1908) V.L.R., 190 ; 29 A.L.T., 

202 ; 14 A.L.R., 147 

Roberts v. Death, 8 Q.B.D., 319, followed. 
Richards v. Jager, (1909) V.L.R., 140; 30 
A.L.T., 163 ; 15 A.L.R., 119 

Roberts v. Roberts, 29 V.L.R., 158; 25 
A.L.T., 54 ; 10 A.L.R., 20, distinguished and 
(by Cussen, J.) doubted. Lobley v. Lobley, 
(1909) V.L.R., 383; 31 A.L.T., 46; 15 
A.L.R., 443. 



XCIII 



CASES FOLLOWED, OVER-RULED, &c. 



XC1V 



Robins v. Goddard, (1905) 1 K.B., 294, dis- 
tinguished. Briscoe <&s Co. v. Victorian 
Railways Commissioners, (1907) V.L.R., 523 ; 
29 A.L.T., 17 : 13 A.L.R., 308. 

Rochdale Canal Co. v. Brewster, (1894) 2 
Q.B., 852, followed. Mayor, &c. of City of 
Melbourne v. Howard Smith & Co Ltd., 13 
C.L.R., 253 ; 17 A.L.R., 437. 

Roche, R. v., 13 V.L.R., 150 ; 8 A.L.T., 
193, discussed. R. v. Schiffman, (1910) 
V.L.R., 348 ; 32 A.L.T., 28 : 16 A.L.R., 346. 

Rogers and Rodd's Contract, In re, (1907) 
V.L.R., 511 ; 29 A.L.T., 30 ; 13 A.L.R., 312, 
followed. In re Crook's Contract, (1909) 
V.L.R., 12 ; 30 A.L.T., 108 ; 14 A.L.R., 698. 

Rogers v. Mutch, 10 Ch. IX, 25, followed. 
In re Thompson ; Brake v. Mason, (1910) 
V.L.R., 251; 31 A.L.T., 210 ; 16 A.L.R., 266. 

Rooney, Webb v., 1 A.L.R., 83, discussed. 
Le Cocq v. McErvale, (1908) V.L.R., 69 ; 29 
A.L.T., 134 ; 13 A.L.R., 699. 

Rylands v. Fletcher, L.R. 3 H.L., 330, dis- 
tinguished. Richards v. Lothian, (1913) 
A.C., 263. 

Sala & Co., Reuter Hufeland & Co. v., 4 
C.P.D., 239, distinguished. L. Osborn & 
Co. Ltd. v. Davidson Brothers, (1911) V.L.R., 
416 ; 33 A.L.T., 66 ; 17 A.L.R., 448. 

Sanderson v. Nicholson, (1906) V.L.R., 371 ; 
27 A.L.T., 215 ; 12 A.L.R., 208, not followed. 
Honeybone v. Glass, (1908) V.L.R., 466 ; 30 
A.L.T., 54: 14 A.L.R., 345. 

Sandilands, Re ; Ex parte Browne, 4 
V.L.R. (L.), 318, followed. Pope v. Peacock, 
(1906) V.L.R., 667; 28 A.L.T., 63; 12 
A.L.R.. 440. 

Sands, Goldsmith v., 4 C.L.R., 1648; 13 
A.L.R., 601, applied. Moule v. Moule, 13 
C.L.R., 267 : 17 A.L.R., 446. 

Saunders v. Saunders, (1897) P., at p. 104, 
principle laid down by Rigby, L. J., adopted. 
Richards v. Richards, (1911) V.L.R., 42 ; 32 
A.L.T., 101 ; 16 A.L.R., 579. 

Sayers, R. v., 4 W.W. & a'B. (L.), 46, 
applied. Porter v. Martin, (1910) V.L.R., 
38 ; 31 A.L.T., 105 : 16 A.L.R., 12. followed. 
32 A.L.T. (Supplement), 8 ; 16 A.L.R. (C.N.), 
18. 



Scholefield v. Londesborough, (1896) A.C., 
514, followed. Colonial Bank of Australasia 
v. Marshall, (1906) A.C., 559. 

Scott, In re, 4 A.J.R., 50, distinguished. 
In re Ross, 31 A.L.T. (Supplement), 3 ; 15 
A.L.R. (C.N.), 13. 

Scott v. Corporation of Liverpool, 3 DeG. 
& J., at p. 368, discussed and applied. Bris- 
coe & Co. v. Victorian Railways Commis- 
sioners, (1907) V.L.R., 523 ; 29 A.L.T., 17 ; 
13 A.L.R., 308. 

Scott, Wilson v., 3 A.L.R. (C.N.), 87, ex- 
plained. Hopkins v. Forster, 32 A.L.T. 
(Supplement), 5 ; 16 A.L.R. (C.N.), 6. And 
distinguished, Ambler & Co. Proprietary 
Ltd. v. Clayton, 31 A.L.T. (Supplement), 5 ; 
15 A.L.R. (C.N.), 15. 

Sealey, In re ; Tomkins v. Tucker, 85 L.T., 

451, applied. In re Stroud ; Bell v. Stroud, 
(1908) V.L.R., 33; 29 A.L.T., 104; 13 
A.L.R., 645. 

Shackle, Greatorex v., (1895) 2 Q.B., 249, 
followed. Looker v. Mercer, 28 A.L.T. 
(Supplement), 15 ; 13 A.L.R. (C.N.), 13. 

Shanahan v. Nicholls, 27 A.L.T. (Supple- 
ment), 8; 11 A.L.R. (C.N.), 65, followed. 
Ambler & Co. Proprietary Ltd. v. Clayton, 29 
A.L.T. (Supplement), 28 ; 14 A.L.R. (C.N.), 
17. 

Shankland, Trotman v., 7 V.L.R. (L.), 16, 
adopted. McLaren v. Bradley, (1908) 
V.L.R., 318 ; 29 A.L.T., 239 ; 14 A.L.R., 
252. 

Sherborne, Lord, Ogle v., In re Whorwood, 

34 Ch. D., 446, distinguished. In re Lough- 
lin ; Acheson v. O'Meara, (1906) V.L.R., 
597; 28A.L.T, 28; 12 A.L.R., 411. 

Sherwood, Prior v., 3 C.L.R., 1054, fol- 
lowed as to," user." McCann -v. Morgan, 
(1912) V.L.R., 303; 34 A.L.T, 43; 18 
A.L.R., 334. 

Short, Egbert v., (1907) 2 Ch., 207, con- 
sidered and applied. Maritime Insurance 
Co. Ltd. v. Geelong Harbour Trust Commis- 
sioners, 6 C.L.R., 194 ; 14 A.L.R., 424. 

Sidney, Re ; Hingeston v. Sidney, (1908) 1 
Ch., 126, 488, distinguished. In re Wallace ; 



xcv 



CA.SES FOLLOWED, OVER-RULED, &c. 



xcvi 



Trustees Executors and Agency Co. Ltd. v. 
Fatt, (1908) V.L.R., 636 ; 30 A.L.T., 100 ; 

14 A.L.R., 502. 

Simpson, In re, (1897) 1 Ch., 256, form of 
order adopted. In re Weir, (1912) V.L.R., 
77 ; 33 A.L.T., 162 ; 18 A.L.R., 26. 

Simpson, Bank of New Zealand v., (1900) 
A.C., 182, followed. Bruton v. Farm and 
Dairy Machinery Co. Proprietary Ltd., (1910) 
V.L.R., 196; 31 A.L.T., 200 : 16 A.L.R., 241. 

Sirdar Gurdyal Singh v. Rajah of Faridkote, 

(1894) A.C., 670, distinguished. Kelsey v. 
Caselberg, (1909) V.L.R., 347 ; 31 A.L.T., 31 ; 

15 A.L.R., 362. 

Skrymshei v. Northcote, 1 Swanst., 566, 
distinguished. In re Stead, (1908) V.L.R., 
10 ; 29 A.L.T., 155 ; 13 A.L.R., 683. 

Slattery, Dublin, Wicklow and Wexford Ry. 
Co. v., 3 A.C., 1155, at p. 1201, applied. 
Farrands v. Mayor &c. of Melbourne, (1909) 
V.L.R., 531 ; 31 A.L.T., 78 ; 15 A.L.R., 520, 
distinguished. Fraser v. Victorian Railways 
Commissioners, 8 C.L.R., 54 ; 15 A.L.R., 93. 

Slattery v. Naylor, 13 App. Cas., 446,' dis- 
' tinguished. Co-operative Brick Co. Pro- 
prietary Ltd. v. Hawthorn, Mayor &c. of 
City of, 9 C.L.R., 301 ; 15 A.L.R., 479. 

Smail, Muntz v., 8 C.L.R., 262 ; 15 A.L.R., 
162, discussed. In re McConnell ; Macfar- 
lane v. McDonald, (1912) V.L.R., 102 ; 33 
A.L.T., 195 ; 18 A.L.R., 90. 

Smith, Brooks Robinson & Co. v., 16 

V.L.R., 245; 11 A.L.T., 168, applied. H. 
Beecham & Co. v. R. W. Cameron & Co., 
(1910) V.L.R., 19; 31 A.L.T., 100; 15 
A.L.R., 598. 

Smith, Church Wardens of St. Saviour's, 
Southwark v., 1 Wm. BJ., 351, followed. 
Renshaw v. Maher, (1907) V.L.R., 520 ; 29 
A.L.T., 237 ; 13 A.L.R., 265. 

Smith, Crooke v., 4 V.L.R. (L.), 95, applied. 
H. Beecham & Co. v. R. W. Cameron & Co., 
(1910) V.L.R., 19; 31 A.L.T., 100; 15 
A.L.R., 598. 

Smith v. Jeffryes, 15 M. & W., 561, dis- 
tinguished. Bruton v. Farm and Dairy 
Machinery Co. Proprietary Ltd., (1910) 
V.L.R., 196; 31 A.L.T., 200 ; 16 A.L.R., 241. 



Smith v. South Eastern Ry. Co., (1896) 1 
Q.B., 178, distinguished. Fraser v. Vic- 
torian Railways Commissioners, 8 C.L.R., 54 ; 
15 A.L.R., 93. 

Smith v. Syme, 20 V.L.R., 56 ; 15 A.L.T., 
193, approved. Orchard v. Oriental Timber 
Corporation Ltd., (1910) V.L.R., 192 ; 31 
A.L.T., 198 ; 16 A.L.R., 213. 

Smith, Wadsworth v., L.R, 6 Q.B., 332, dis- 
cussed and explained. Briscoe & Co. v. 
Victorian Railways Commissioners, (1907) 
V.L.R., 523 ; 29 A.L.T., 17 ; 13 A.L.R., 308. 

Sneddon, Evans v., 28 V.L.R., 396; 24 
A.L.T., 79 ; 8 A.L.R., 215, explained. Smith 
v. Chisholm, (1908) V.L.R., 579 ; 30 A.L.T., 
48 ; 14 A.L.R., 471. 

Snelling, In re, 24 V.L.R., 753 ; 20 A.L.T., 
256; 5 A.L.R., 102, not followed. In re 
Allen, (1908) V.L.R., 20; 29 A.L.T., 164 ; 14 
A.L.R., 28. 

Solomons, In re, 10 Man. 369, discussed and 
followed. In re Moulton, 30 A.L.T. (Sup- 
plement), 4 ; 14 A.L.R. (C.N.), 29. 

South Eastern Ry. Co., Smith v., (1896) 1 
Q.B., 178, distinguished. Fraser v. Victorian 
Railways Commissioners, 8 C.L.R., 54 ; 15 
A.L.R., 93. 

South Wales Miners' Federation v. Glamor- 
gan Coal Co., (1905) A.C., 239, distinguished. 
Bond v. Morris, (1912) V.L.R., 351 ; 34 
A.L.T., 52 ; 18 A.L.R., 348. 

Speller v. Bristol Steam Navigation Co., 13 
Q.B.D., 96, distinguished. Edwards v. Ed- 
wards, (1913) V.L.R., 30 ; 34 A.L.T., 103 ; 18 
A.L.R., 580. 

Sprague v. Allen, 15 T.L.R., 150, followed. 
In re Bennett Brothers, (1910) V.L.R., 51 ; 
31 A.L.T., 148 ; 16 A.L.R., 30. 

Sproule, Bouche v., 12 App. Cas., 385, at 
pp. 397, 401, considered. In re Longley ; 
Reid v. Silke, (1906) V.L.R., 641 ; 28 A.L.T., 
82 ; 12 A.L.R., 499, applied. In re Smith ; 
Edwards v. Smith, 29 A.L.T., 173; 14 
A.L.R., 22. 

Stanford v. Stanford, 34 Ch. D., 362, dis- 
tinguished. In re Lyons ; Grant v. Trustees 
Executors &c. Co. Ltd., (1908) V.L.R., 190; 
29 A.L.T., 202 ; 14 A.L.R.. 147. 



XCV1I 



CASES FOLLOWED, OVER-RULED, &c. 



XCVIII 



Steele v. M'Kinley, 5 A.C., 754, discussed. 
Perrier v. Stewart, 15 C.L.R., 32 : 18 A.L.R., 
262. 

Steinhardt, Walker & Co., Alexander v., 
(1903) 2 K.B., 208, applied by Isaacs, J. 
Muntz v. Smail, 8 C.L.R., 262 ; 15 A.L.R., 
162. 

Stephens v. McKenzie, 29 V.L.R., 652 ; 25 
A.L.T., 239; 10 A.L.R., 106, approved. 
Swinburne v. David Syme & Co., (1909) 
V.L.R., 550 ; 31 A.L.T., 81 ; 15 A.L.R., 579. 

Sterious, Taddy v., (1904) 1 Ch., 358, judg- 
ment of Swinfen Eady J. approved. National 
Phonograph Co. of Australia Ltd. v. Menck, 
(1911) A.C., 336, at p. 347 ; 17 A.L.R., 94, at 
p. 96. 

Stevenson, In re, 19 V.L.R., 660 ; 15 
A.L.T., 119, overruled. In re Whitelaw; 
Savage v. Union Bank of Australia Ltd. ; 
Whitelaw v. The Same, 3 C.L.R., 1170; 12 
A.L.R., 285. 

Stewart and Park's Contract, Re, (1907) 
V.L.R., 31 ; 28 A.L.T., 133 ; 12 A.L.R., 553 : 
followed. Be Rogers and Rodd's Contract, 
(1907) V.L.R., 511; 29 A.L.T., 13; 13 
A.L.R., 312. Also, In re Crook's Contract, 
(1909) V.L.R., 12; 30 A.L.T., 108; 14 
A.L.R., 698. 

Stiggants v. Joske, 12 C.L.R., 549; 17 
A.L.R., 526, discussed and applied. Joske 
v. Strutt, (1912) V.L.R., 118; 33 A.L.T., 
189; 18 A.L.R., 84. Also, explained, 14 
C.L.R., 180 ; 18 A.L.R., at p. 90. 

Still, Mooney v., (1909) V.L.R., 227; 30 
A.L.T., 191 ; 15 A.L.R., 197, followed. 
Mooney v. McKeand, (1909) V.L.R., 294 : 30 
A.L.T., 225 • 15 A.L.R., 280 

Storey, In re, 28 V.L.R., 336 ; 24 A.L.T., 
80 ; 8 A.L.R., 210, followed. Announce- 
ment, per Hood, J., after consulting the 
other Judges, 34 A.L.T., 86 ; 18 A.L.R. (C.N.), 
20. 

Stowers, R. v., 24 A.L.T., 52 ; 8 A.L.R., 
134, considered. R. v. Downey, (1910) 
V.L.R., 361 ; 32 A.L.T., 14 : 16 A.L.R., 319. 

Stray, In re, L.R. 2 Ch., 374, commented 
on. In re Knights ; Ex parte Purcell, (1910) 
V.L.R., 188; 31 A.L.T., 178; 16 A.L.R., 184. 



Stroud v. Edwards, 77 L.T. N.S., 280, fol- 
lowed. Trustees Executors and Agency Co. 
Ltd. v. Webster, (1907) V.L.R., 318; 28 
A.L.T., 225 ; 13 A.L.R., 188. 

Strutt, Joske v., (1912) V.L.R., 110; 33 
A.L.T., 189; 18 A.L.R., 84, not followed. 
Joske v. Blitz, (1912) V.L.R., 256 ; 34 
A.L.T., 15 ; 18 A.L.R., 352. 

Suckling v. Parker, (1906) 1 K.B., 527, dis- 
tinguished. Gunner v. Payne, (1908) V.L.R., 
363; 29 A.L.T., 264 ; 14 A.L.R., 243. 

Sweeting v. Prideaux, 2 Ch. D., 413, dis- 
tinguished. In re Green ; Crowson v. Wild, 
(1907) V.L.R., 284; 28 A.L.T., 206; 13 
A.L.R., 121. 

Syme, O'Farrell v., 16 V.L.R., 422; 12 
A.L.T., 11, approved. Orchard v. Oriental 
Timber Corporation Ltd., (1910) V.L.R., 192 . 

31 A.L.T., 198 ; 16 A.L.R., 213. 

Syme, Smith v., 20 V.L.R., 56 ; 15 A.L.T., 
193, approved. Orchard v. Oriental Timber 
Corporation Ltd., (1910) V.L.R., 192; 31 
A.L.T., 198 ; 16 A.L.R., 213. 

Syme, Re, Ex parte Worthington, 28 V.L.R., 
552 ; 24 A.L.T., 123 ; 8 A.L.R., 239, over- 
ruled. Packer v. Peacock, 13 C.L.R., 577 ; 
18 A.L.R., 70. 

Taddy v. Sterious, (1904) 1 Ch., 358, judg- 
ment of Swinfen Eady, J., approved. 
National Phonograph Co. of Australia Ltd. 
v. Menck, (1911) A.C., 336, at p. 347 ; 17 
A.L.R., 94, at p. 96. 

Templeton, R. v. ; Ex parte England, 3 

V.L.R. (L.), 305, followed. Burvett v. Moody, 
(1909) V.L.R. 126; 30 A.L.T., 160; 15 
A.L.R., 91. 

Templeton, Warr v., 3 V.R. (L.), 57, dis- 
cussed. Cross v. Daffy, (1910) V.L.R., 316 ; 

32 A.L.T., 10 • 16 A.L.R., 279. 

Thomas V. Ivey, 13 A.L.T., 190, distin- 
guished. Riely v. Biggs, 28 A.L.T. (Supple- 
ment), 11 ; 13 A.L.R. (C.N.), 5. 

Thompson v. McKenzie, (1908) 1 K.B., at 
p. 908, dictum of Lord Alverstone, approved. 
McKinnon v. Colborne, (1911) V.L.R., 486; 

33 A.L.T., 117 ; 17 A.L.R., 524. 



XCIX 



CASES FOLLOWED, OVER-RULED, &c. 



Thompson, Doherty v., 94 L.T., 626, fol- 
lowed. Harrison San Miguel Proprietary 
Ltd. v. Alfred Lawrence & Co., (1912) V.L.R., 
367 ; 34 A.L.T., 88 ; 18 A.L.B., 394. 

Thompson, Whiting v., 29 V.L.R., 89 ; 21 
A.L.T., 231 ; 6 A.L.R., 132, followed. In 
re Rosenthal; Rosenthal -v. Rosenthal, (1911) 
V.L.R., 55 ; 32 A.L.T., 46 ; 16 A.L.R., 399. 

Thornhill, In re, 3 W.W. & a'B. (E.), 110. 
followed. In re Vance ; Ex parte Garr, 
(1906) V.L.R., 664; 28 A.L.T., 62; 12 
A.L.R., 439 

Threlkeld, Wilson v., 3 W.W. & a'B. (L.), 
158, applied. Kelsey v. Caselberg, (1909) 
V.L.R., 347 ; 31 A.L.T., 31 . 15 A.L.R., 362. 

Todd's ^Application, In re, 9 R.P.C., 487, 
applied. Linotype Co. Ltd. v. Mounsey, 9 
C.L.R., 194 ; 15 A.L.R., 310. 

Todd, Hickling v., 15 V.L.R., 154; 10 
A.L.T., 236, followed. In re Stamps Acts, 

(1906) V.L.R., 364 ; 27 A.L.T., 204 ; 12 
A.L.R., 186. 

Tolson, R. v., 23 Q.B.D., 168, applied. 
Billingham v. Oaten, (1911) V.L.R., 44; 

32 A.L.T., 170 ; 17 A.L.R., 36. 

Tomkins v. Tucker, In re Sealey, 85 L.T., 

451, applied. In re Stroud ; Bell v. Stroud, 
(1908) V.L.R., 33; 29 A.L.T., 104; 13 
A.L.R., 645. 

Toronto Ry. Co. v. King, (1908) A.C., 260, 
distinguished. Fraser v. Victorian Rail- 
ways Commissioners, 8 C.L.R., 54 : 15 A.L.R., 
93. 

Torrens, Lester v., 2 Q.B.D., 403, followed. 
McKinnon v. Colborne, (1911) V.L.R., 486; 

33 A.L.T., 117 : 17 A.L.R., 524. 

Tottenham v. Ely ; In re Ely, 65 L.T., 452, 
distinguished. In re Loughlin ; Acheson v. 
O'Meara, (1906) V.L.R., 597 ; 28 A.L.T., 28 ; 
12 A.L.R., 411. 

Towns v. Wentworth, 11 Moo. P.C., 526, 
applied. In re Green; Crowson v. Wild, 

(1907) V.L.R., 284; 28 A.L.T., 206; 13 
A.L.R., 121. 

Trainer v. The King, 4 C.L.R., 156 ; 13 
A.L.R., 53, discussed. R. v . Schiffman, 
(1910) V.L.R., 348; 32 A.L.T., 28; 16 
A.L.R., 346. 



Tredwell, In re, (1891) 2 Ch;, 640, dis- 
tinguished. In re Nilen ; Kidd v. Nilen, 
(1908) V.L.R., 332; 29 A.L.T., 284; 14 
A.L.R., 277. 

Trent Brewery v. Lehane, 21 V.L.R., 283 ; 
1 A.L.R., 89, followed. Sack v. Wolsten- • 
croft, 29 A.L.T., 85 ; 13 A.L.R., 588. 

Trequair, Willis v., 3 C.L.R., 912; 12 
A.L.R., 507, applied. National Mutual Life 
Association of Australasia Ltd. v. Aus- 
tralian Widows' Fund &c. Society Ltd., (1910) 
V.L.R., 411 ; 32 A.L.T., 51 ; 16 A.L.R., 460. 

Trotman v. Shankland, 7 V.L.R. (L.), 16, 
adopted. McLaren v. Bradley, (1908) 
V.L.R., 318; 29 A.L.T., 239: 14 A.L.R., 
252 

Trustees Executors and Agency Co. v. 
Jenner, 22 V.L.R.,' 584 ; 18 A.L.T., 255; 3 
A.L.R., 138, followed. England v. Bayles, 
(1906) V.L.R., 94 ; 27 A.L.T., 181 ; 12 
A.L.R., 122. 

Trustees Executors &c. Co. v. Jope, 27 

V.L.R., 706 ; 24 A.L.T., 30 ; 8 A.L.R. (C.N.), 
21, followed. In re Tong, (1907) V.L.R., 
338; 28 A.L.T., 200; 13 A.L.R., 119. 

Tucker v. Hernaman, 1 Sm. & G., 394 ; 4 
DeG. M. & G., 395, followed. In re Pooh, 
31 A.L.T. (Supplement), 13 ; 15 A.L.R. (C.N.), 
25 

Tucker, Tomkins v. In re Sealey, 85 L.T., 
451, applied. In re Stroud ; Bell v. Stroud, 
(1908) V.L.R., 33; 29 A.L.T., 104; 13 
A.L.R., 645. 

Twist v. Tye, (1902) P., 92, considered. 
In re Keane, (1909) V.L.R., 231 ; 30 A.L.T., 
216 ; 15 A.L.R., 198. 

Tye, Twist v., (1902) P., 92, considered. 
In re Keane, (1909) V.L.R., 231 ; 30 A.L.T., 
216 ; 15 A.L.R., 198. 

Vallentine v. Vallentine, (1901) P., 283, fol- 
lowed. Mackay v. Mackay, (1910) V.L.R., 
50 ; 31 A.L.T., 138 ; 16 A.L.R., 29 

Vassall, Knapp v. ; In re Knapp's Settle- 
ment, (1895) 1 Ch., 91, plan of distribution 
adopted. In re Hobson ; Hobson v. Sharp, 
(1910) V.L.R., 724; 29 A.L.T., 125; 13 
A.L.R., 703. 



CI 



CASES FOLLOWED, OVER-RULED, &c. 



en 



Vestry of St. James and St. John v. Feaiy, 
24 Q.B.D., 703, distinguished. Bremner v. 
New Normariby Quartz Mining Co., No 
Liability, (1910) V.L.R., 72 ; 31 A.L.T., 140 ; 
16 A.L.R., 25. 

Victorian Railways Commissioners, Brown 
v., 3 C.L,R., 316; 12 A.L.R., 1, applied. 
Crouch v. Victorian Railways Commis- 
sioners, (1907) V.L.R., 80 ; 28 A.L.T., 141 ; 

12 A.L.B., 574. 

Victorian Railways Commissioners, Crouch 
v., (1907) V.L.R., 80; 28 A.L.T., 141: 12 
A.L.B., 574, followed. In re Hilliard ; 
Ex parte Tinkler, (1907) V.L.R., 375 ; 28 
A.L.T., 204 ; 13 A.L.R., 138. 

Victorian Railways Commissioners, Dennis 
v., 28 V.L.R., 576; 24 A.L.T., 196; 9 
A.L.R., 69, applied. Victorian Railways 
Commissioners v. Campbell, 4 C.L.R., 1446 ; 

13 A.L.R., 403. 

Vinnicombe v. MacGregor, 29 V.L.R., 32 ; 
28 V.L.E., 144 ; 24 A.L.T., 200 ; 24 A.L.T., 
15 ; 9 A.L.R., 60 ; 8 A.L.R., 141, discussed 
and disapproved. Nelson v. Walker, 10 
C.L.R., 560 ; 16 A.L.R., 285. 

Virgo, Municipal Corporation of Toronto v., 
(1896) App. Cas., 88, followed. Co-operative 
Brick Co. Proprietary Ltd. v. Hawthorn, 
Mayor, &c. of City of, 9 C.L.R., 301 ; 15 
A.L.R., 479. 

Vodden, R. v., Dears., 229, approved. 
David Syme & Co. v. Swinburne, 10 C.L.R., 
43 ; 16 A.L.R., 93. 

Vogt v. Vogt, 25 V.L.R., 283 ; 21 A.L.T., 
109; 5 A.L.R. (C.N.), 77, followed. Kidd 
v. Kidd, (1908) V.L.R., 409 ; 30 A.L.T., 29 ; 

14 A.L.R., 274. 

Wadsworth v. Smith, L.R. 6 Q.B., 332, 

discussed and explained. Briscoe & Co. v. 

Victorian Railways Commissioners, (1907) 

V.L.R., 523 ; 29 A.L.T., 17 ; 13 A.L.R., 308. 

Wainwright, Randt Gold Mining Co. Ltd. v., 

(1901) 1 Ch., 184, doubted. Land Mortgage 
Bank of Victoria Ltd. v. Reid, (1909) V.L.R., 
284 ; 31 A.L.T., 9 ; 15 A.L.R., 234. 

Wakelin v. London and South Western 
Railway Co., 12 App. Cas., 41, applied. 
Eraser v. Victorian Railways Commissioners, 
8 C.L.R., 54 ; 15 A.L.R., 93. 



Walter, Kingsbury v., (1901) A.C., 187, 

distinguished. In re Jones ; Harris v. 

Jones, (1910) V,L.R., 306; 32 A.L.T., 3 ; 

16 A.L.R., 266. 

Wandsworth District Board of Works, 
Cooper v., 14 C.B.N.S., 180, followed. Brem- 
ner v. New Normanby Quartz Mining Co., 
No Liability, (1910) V.L.R., 72; 31 A.L.T., 
140 ; 16 A.L.R., 25. 

Ward v. Hearne, 10 V.L.R. (L.), 163: 6 
A.L.T., 49, explained. The King v. Watt ; 
Ex parte Slade, (1912) V.L.R., 225 ; 33 
A.L.T., 222 ; 18 A.L.R., 158. 

Ward, Raikes v., 1 Hare, 445, commented 
on. In re Lawn ; Ballarat Trustees &c. Go. 
v. Perry, (1911) V.L.R., 318 ; 33 A.L.T., 25 ; 

17 A.L.R., 311. 

Warnecke v. Equitable Life Assurance 

Society, (1906) V.L.R., 482 ; 27 A.L.T., 236 ; 
12 A.L.R., 254, approved. National Mutual 
Life Association of Australasia Ltd. v. God- 
rich, 10 C.L.R., 1 ; 16 A.L.R., 110. 

Warr v. Templeton, 3 V.R. (L.), 56, dis- 
cussed. Cross v. Duffy, (1910) V.L.R., 316 ; 
32 A.L.T., 10 ; 16 A.L.R., 279. 

Watson, Hancock v., (1902) A.C., 14, at 
p. 22, applied. In re Watson ; Cain v. 
Watson, (1910) V.L.R., 256; 31 A.L.T., 
212 ; 16 A.L.R., 76. 

Watson, London and Brighton Railway Co. 
v., 3 C.P.D., 429, followed. Borsum v. Smith. 
(1907) V.L.R., 72 ; 28 A.L.T., 89 : 12 A.L.R., 
495. 

Watson, Peatling v., (1909) V.L.R., 198 ; 
30 A.L.T., 176; 15 A.L.R., 150, overruled. 
Howev Lees, 11 C.L.R., 361 ; 16 A.L>R., 605. 

Waxman, Ex parte : In re Crown Hotel, 

28 V.L.R., 710 ; 24 A.L.T., 234 ; 9 A.L.R., 
108, not followed. Mooney v. Lucas, (1909) 
V.L.R., 333 ; 31 A.L.T., 3 ; 15 A.L.R., 296. 

Wayth, In re, 5 V.L.R. (L.), 389 ; 1 A.L.T., 
97, followed. In re Simpson and Friclce ; 
Ex parte Robinson, (1910) V.L.R., 177 ; 31 
A.L.T., 163; 16 A.L.R., 125. 

Webb, Deakin v., 1 C.L.R., 585, approved 
and applied. Baxter v. Commissioners of 
Taxation; Flint v. Webb, 4 C.L.R., 1087, 
1178; 13 A.L.R., 313. 



cm 



CASES FOLLOWED, OVER-RULED, &c. 



civ 



Webb, Grumley v., 100 Am. Den., 304, 
approved. Prebble v. Reeves, (1910) V.L.R., 
88; 31 A.L.T., 114; 15 A.L.R., 631. 

Webb v. Outtrim, (1907) A.C., 81, not fol- 
lowed. Baxter v. Commissioners of Taxation; 
Flint v. Webb, 4 C.L.R., 1087, 1178; 13 
A.L.R., 313. 

Webb, R. v., (1896) 1 Q.B., 487, followed. 
Rees v. Downer, (1910) V.L.R., 5 ; 31 A.L.T., 
97 ; 15 A.L.R., 360. 

Webb v. Rooney, 1 A.L.R., 83, discussed. 
Le Cocq v. McErvale, (1908) V.L.R., 69 ; 29 
A.L.T., 134 ; 13 A.L.R., 699. 

Weedon v. Davidson, 4 C.L.R., 895 ; 13 
A.L.R., 87, explained. Richardson v. Aus- 
tin, 12 C.L.R., 463 ; 17 A.L.R., 324. 

Weekes V. King, 15 Cox CO., 733, followed. 
Rider v. W Kell, (1908) C.L.R., 110; 29 
A.L.T., 77 ; 13- A.L.R., 513. 

Wentworth, Towns v., 11 Moo. P.C., 526, 
applied. In re Green ; Crowson v. Wild, 
(1907) V.L.R., 284 ; 28 A.L.T., 206 ; 13 
A.L.R., 121. 

Weymouth, Mayor &c. of, Goodyear v., 35 
L.J. N.S. C.P., 12, discussed and applied. 
Briscoe & Co. v. Victorian Railways Com- 
missioners, (1907) V.L.R., 523 ; 29 A.L.T., 
17 ; 13 A.L.R., 308. 

Whiting v. McGinnis, (1909) V.L.R., 250; 
30 A.L.T., 207 ; 15 A.L.R., 203, approved. 
In re Rosenthal ; Rosenthal v. Rosenthal, 11 
C.L.R., 87 ; 16 A.L.R.. 455. 

Whiting v. Thompson, 29 V.L.R., 89 ; 21 
A.L.T., 231 ; 6 A.L.R., 132, followed. In re 
Rosenthal; Rosenthal v. Rosenthal, (1911) 
V.L.R., 55 : 32 A.L.T., 46 ■ 16 A.L.R., 399 

Whorwood, In re - Ogle v. Lord Sherborne, 

34 Ch. D., 446, distinguished. In re Lough- 
lin : Acheson v. O'Meara, (1906) V.L.R., 
597 ; 28 A.L.T., 28 ; 12 A.L.R., 411. 

Wilkie v. Equity Trustees &c. Co., (1909) 
V.L.R., 277 ; 30 A.L.T., 211 ; 15 A.L.R., 
208, followed. Macartney v. Macartney, 33 
A.L.T., 183 ; IS A.L.R., 1. 

Wilkie V. Hunt, 1 W.W. & a'B. (L.), 66, dis- 
tinguished. Bruton v. Farm and Dairy 



Machinery Co. Proprietary Ltd., (1910) 
V.L.R., 196 ; 31 A.L.T., 200 ; 16 A.L.R., 
241 

Williams, New Koh-i-noor Co. v., 13 

V.L.R., 435 ; 8 A.L.T., 169, discussed. In 
re Lamrock, Brown and HalVs Costs, (1908) 
V.L.R., 238; 29 A.L.T., 214; 14 A.L.R., 
81. 

Williams v. Papworth, (1900) A.C., p. 566, 
followed. In re Stevens ; Trustees Executors 
and Agency Co. Ltd. v. Teague, (1912)V.L.R., 
194; 33 A.L.T., 233 ; 18 A.L.R., 195 

Williamson, In re : Price v. Williamson, 26 

A.L.T., 91 ; 10 A.L.R., 197, distinguished. 
In re Reed, (1911) V.L.R., 232 ; 32 A.L.T., 
168 ; 17 A.L.R., 164. 

Willis v. Trequair, 3 C.L.R., 912; 12 
A.L.R., 507, applied. National Mutual Life 
Association of Australasia Ltd. v. Aus- 
tralian Widows' Fund &c. Society Ltd., (1910) 
V.L.R., 411 ; 32A.L.T., 51; 16 A.L.R., 460. 

Wilson, Re, 24 A.L.T., 168 ; 9 A.L.R., 36, 
doubted. In re Mc Cracken ; Webb v. Mc- 
Cracken, 3 C.L.R., 1018 ; 12 A.L.R., 313. 

Wilson v. Anderson, 26 A.L.T. (Supple- 
ment), 5; 11 AX.R. (C.N.), 35,*explained. 
Townsing v. Egan, 29 A.L.T. (Supplement), 
29: 14 A.L.R. (C.N.), 18. 

Wilson v. Benson, (1905) V.L.R., 229; 26 
A.L.T., 144: 11 A.L.R., 85, approved. 
Wilson v. Travers, (1906) V.L.R., 734; 28 
A.L.T., 56 : 12 A.L.R., 413. 

Wilson v. Scott, 3 A.L.R. (C.N.), 87, 
explained. Hopkins v. Forster, 32 A.L.T. 
(Supplement), 5 ; 16 A.L.R. (C.N.), 6. And 
distinguished, Ambler & Co. Proprietary 
Ltd.. v. Clayton, 31 A.L.T. (Supplement), 5; 
15 A.L.R. (C.N.), 15 

Wilson v. Threlkeld, 3 W.W. & a'B. (L.), 
158, applied. Kelsey v. Caselberg, (1909) 
V.L.R., 347 ; 31 A.L.T., 31 ; 15 A.L.R., 362. 

Wilson v. Wilson, 17 A.L.T., 154, followed. 
Kiddv. Kidd, (1908) V.L.R., 409; 30 A.L.T., 
29 ; 14 A.L.R., 274. 

Wimmera, Shire of v. Brimacombe, 23 

V.L.R., 217 ; 19 A.L.T., 12 ; 3 A.L.R., 146, 
explained. Poowong, Shire of v. Gillen, (1907) 
V.L.R., 37 ; 28 A.L.T., 123 : 12 A.L.R., 522. 



cv 



CASES FOLLOWED, OVER-RULED, &c. 



cvi 



Windover & Co., Morgan & Co. v., 7 R.P.C., 
131, applied. Linotype Co. Ltd. v. Mounsey, 
9 C.L.R., 194 : 15 A.L.R.. 310. 

Wiseman v. Collector of Imposts. 21 V.L.R., 
743; 17 A.L.T., 251, overruled. Davidson 
v. Chirnside, 7 C.L.R., 324 ; 14 A.L.R., 686. 

Wisewould, Ex parte, 16 V.L.R., 149 ; 
11 A.L.T., 182, approved. In re Transfer of 
Land Act; Ex parte Danaher, (1911) V.L.R., 
214 ; 32 A.L.T., 190 ; 17 A.L.R., 160. 

Wolfenden, McGee v., (1907) V.L.R., 195 ; 
28 A.L.T., 163 : 13 A.L.R., 51, distinguished. 
Biggs v. Lamley, (1907) V.L.R., 300; 28 
A.L.T., 202 ; 13 A.L.R., 144. 

Wood v. Earl of Durham, 21 Q.B.D., 501, 
followed. Wilson v. Dun's Gazette, (1912) 
V.L.R., 342 ; 34 A.L.T., 77 ; 18 A.L.R., 327. 

Woodward, Keates v., (1902) 1 K.B., 532, 
followed. Harrison San Miguel Proprietary 
Ltd.v. Alfred Lawrence & Co., (1912) V.L.R., 
367 ; 34 A.L.T., 88 ; 18 A.L.R., 394. 



Worthington, Ex parte ; Re Syme, 28 
V.L.R., 552; 24 A.L.T., 123; 8 A.L.R., 239, 
overruled. Packer v. Peacock, 13 C.L.R., 
577 ; 18 A.L.R., 70. 

Wotton, In the Goods of, L.R. 3 P. & T>„ 
159, followed. In re Hall, (1910) V.L.R., 

14 ; 31 A.L.T., 132 ; 16 A.L.R., 15, 

Wyke v. Wyke, (1904) P., 149, disapproved. 
Mulder v. Mulder, (1906) V.L.R., 388; 27 
A.L.T., 216 ; 12 A.L.R., 210. 

Wylie, Ex parte ; Ex parte Butler, 4 A.L.T., 

41 ; explained and distinguished. Mooney 
v. Still, (1909) V.L.R., 227; 30 A.L.T., 191 ; 

15 A.L.R., 197. 

Young v. Ormiston • In re Ormiston, 11 
V.L.R., 285, followed. In re Reed., (1911) 
V.L.R., 232; 32 A.L.T., 168 ; 17 A.L.R., 164. 

Zanoni v. Zanoni, 24 V.L.R., 940 ; 5 
A.L.R., 206, followed. Farrer v. Farrer, 
(1907) V.L.R., 382 ; 28 A.L.T., 221 ; 13 
A.L.R., 236 



INDEX OF KEFERENCES TO STATUTES. 



The numbers after the Sections refer to the Columns. 



STATUTES OP VICTORIA. 

Acts Interpretation Act 1890 [No. 1058] — 
Sec. 17 : 721. 

Administration and Probate Act 1890 [No. 
1060]— 

Part III. . 555. 
Sec. 6 : 1294, 1351. 

8 : 537, 1351. 

9 : 1351. 

14 : 544. 

15 : 539. 

16 : 539. 
18 : 541. 
21 : 546. 
26 : 561, 562, 563, 564, 565, 566, 567. 

98 : 421. 

99 : 421. 
„ 100 : 420. 

103 : 419. 

112 : 415, 416, 417, 420. 
„ 116 : 420. 

Administration and Probate Act 1903 [No. 
1815]— 

Second Schedule : 420, 421. 
Sec. 8 : 415, 416. 

„ 9 : 416, 420, 421. 

„ 11 : 416, 417, 418. 

„ 13 : 414. 

„ 15 : 420, 421. 



Administration and Probate Act 1907 [No. 
2120]— 
Sec. 3 : 418, 419. 
„ 5 : 544, 545. 
„ 7 : 532. 

Administration and Probate Act 1911 [No. 
2342]— 
Sec. 3 : 544, 545. 
„ 4 : 544. 

I Administration and Probate Duties Act 
1907 [No. 2089]— 
Sec. 3 : 415. 

Aliens Statute 1865 [No. 256], col. 8 

Aliens Act 1890 [No. 1063] — 
Sec. 6 : 822. 

Artificial Manures Act 1904 [No. 1930] — 
Sec. 11 : 54, 55. 
„ 16 : 54, 55. 
„ 17 : 54, 55. 

Auction Sales Act 1890 [No. 1065] — 
Sec. 3 : 1296, 1297. 
„ 29 : 1296, 1297. 

Bakers and Millers Act 1893 [No. 1332] — 
Sec. 5 : 69. 
„ 6 : 69. 

Book Debts Act 1896 [No. 1424] — 
Sec. 2 : 79, 80, 81, 82. 
„ 3 : 79, 80, 81, 82. 



CVIX 



REFERENCES TO STATUTES. 



ex 



Butchers and Abattoirs Act 1890 [No. 
1069]— 
Sec. 26 : 86. 

Carriages Act 1890 [No. 1070]— 
Sec. 3 : 92, 93. 
„ 4 : 92, 93. 

Children's Court Act 1906 [No. 2058], cols. 
797, 798. 

Church of England Act (18 Vict No. 45) — 
Generally ; 108. 
Sec. 5 : 109. 

Church or Enland Act (36 Vict. No. 454) — 
Generally : 108. 
Sec. 5 : 109. 

Civil Service Act 1862 [No. 160]— 
Sec. 42 : 1119. 
„ 43 : 1119. 
„ 44 : 1119. 

Companies Act 1890 [No. 1074]— 
Generally : 142. 
Part II. ; 153, 164. 
See. 16 .* 143, 144, 145. 
21 : 915. 

23 : 146. 

24 : 161. 
36 : 146. 
39 : 161. 
54 : 149, 150. 
67 : 149. 
71 : 161. 
76 : 159. 

104 : 162. 
109 : 161. 
118 : 150. 
124 : 163. 
181 : 155. 
124 : 163. 
181 : 155. 
189 : 160. 
235 : 153. 
250 : 920. 

252 : 918, 919, 920. 

253 : 917, 918, 919. 
274 : 163, 293. 
301 : 163. 
303 : 920. 

334 : 155. 

335 : 158. 



Companies Act 1896 [No. 1482]— 
Division VIII. : 141. 
Sec. 1 : 159. 
2 : 159. 

„ 53 : 153. 

„ 70 : 157, 159. 

„ 88 : 154. 

„ 133 : 161. 

„ 148 : 162. 

„ 168 : 147, 148. 

Companies Act 1910 [No. 2293]— 
Sec. 189 : 160. 
„ 194. : 163. 

Conveyancing Act 1904 [No. 1953] — 
Sec. 1 : 241. 

3 : 241. 

4 (6) : 199, 241, 242. 
4 (9) : 241, 242. 
6 : 243. 

10 : 242. 
75 : 1189. 

County Court Act 1890 [No. 1078}— 
Ninth Schedule : 312. 
Tenth Schedule : 312. 
Sec. 5 : 299. 

„ 31 : 313. 

„ 45 : 319. 

„ 47 : 318. 

„ 48 : 301. 

„ 51 : 305, 327. 

„ 60 : 301. 

„ 61 : 300. 

„ 62 : 306, 318, 319. 

„ 64 : 300, 303/.304, 318, 319, 325. 

„ 66 : 306. 

„ 68 : 316. 

„ 70 : 316. 

„ 71 : 315, 316. 

„ 78 : 309. 

„ 81 : 307, 308. 

„ 89 : 309, 310. 

„ 94 : 301. 

„ 96 : 316, 317. 

„ 98 : 304. 

„ 104 : 312, 314. 

„ 108 : 314. 

„ 109 : 314. 

„ 121 : 301. 

„ 133 : 304, 317, 328. 



CXI 



REFERENCES TO STATUTES 



cxn 



County Court Act 1890 [No. 1078] (con- 
tinued) — 
Sec. 135 : 329. 
„ 146 : 304. 
„ 148 : 302, 304, 307, 317. 

Crimes Act 1890 [No. 1079]— 
Sec. 74 : 344. 
„ 113 : 335. 
„ 165 : 337. 
„ 185 : 340. 
„ 307 : 342. 
„ 422 : 361, 362. 
„ 444 : 362. 
„. 457 : 362. 
„ 481 : 365. 
„ 482 : 348, 365, 366. 
„ 540 : 368. 

Crimes Act 1891 [No. 1231]— 
Sec. 6 : 332. 
„ 31 : 348. 
„ 33 : 349. 
„ 38 : 352. 
„ 45 : 367. 

Crimes Act 1896 [No. 1478]— 
Sec. 2 : 340. 

Crown Remedies and Liability Act 1890 
[No. 1080]— 
Sec. 20 : 374. 

Customs and Excise Duties Act 1890 [No. 
1082]— 
Sec. 155 : 841. 
„ 156 : 841. 

Declarations and Affidavits Act 1890 
[No. 1191] — 
See. 6 : 75. 

Dentists Act 1898 [No. 1595] — 
Sec. 7 : 400, 401, 402. 

Dentists Act 1910 [No. 2257] — 
Sec. 4 : 401, 402. 
„ 5 : 401, 402. 
„ 13 : 401, 402. 

Education Act 1890 [No. 1086] — 
Sec. 23 : 424. 

Education Act 1905 [No. 2005] — 
Sec. 3 : 424. 
„ 4 : 424. 
„ 5:424. 



Electric Light and Power Act 1896 [No. 
1413]— 
Generally : 429. 
Sec. 5 : 429. 

8 : 429. 

9 : 429. 

10 : 429. 

11 : 429. 
13 : 429. 

16 : 429. 

17 : 429. 

18 : 429. 

38 : 428. 

39 : 428. 

Electric Light and Power Act 1900 [No. 
1694]— 
Generally : 429. 
Sec. 2 : 429, 430. 
„ 3 : 429, 430. 

Electric Light and Power Act 1901 [No. 
1775]— 
Sec. 3 : 428. 

Employers and Employees Act 1890 [No. 
1087]— 
Sec. 38 : 431. 

Equity Trustees Executors and Agency 
Company Limited Act [No. 978] — 
Sec. 9 : 533. 

Evidence Act 1890 [No. 1088] — 
Sec. 4 : 511. 
„ 10:511. 
„ 12 : 505, 506. 
„ 48 : 857. 
„ 50 : 510. 
„ 52 : 352, 485. 
„ 55 : 502, 503, 504. 
., 62 : 507. 

Factories and Shops Act 1890 [No. 1091] — 
Sec. 3 : 571. 
„ 46 : 571. 

Factories and Shops Act 1900 [No. 1654] — 
Sec. 4 : 581, 582. 
„ 15 : 581, 582. 
„ 22 : 581. 

Factories and Shops Act 1903 [No. 1857] — 
Sec. 7 : 581, 582. 



CXIII 



REFERENCES TO STATUTES. 



CXIV 



Factories and Shops Act 1905 [No. 1975] — 
Parts IX. and X. : 575, 578. 
Sec. 5 : 570, 573. 

„ 14 : 570. 

„ 42 : 573, 583. 

„ 75 : 575, 576, 577. 

„ 83 : 575. 

„ 119 : 581. 

„ 122 : 575, 577, 578, 580. 

„ 134 : 571, 572, 573, 584. 

„ 144 : 572. 

„ 149 : 572. 

„ 162 : 583. 

Factories and Shops Act 1905 (No. 2) [No. 

2008]— 

Sec. 9:583. 

„ 22:572,573. 

„ 24 : 573. 

„ 27 : 572. 

Factories and Shops Act 1907 [No. 2137] — 
Sec. 33 : 580. 
„ 40 : 574. 

Factories and Shops Act 1909 [No. 2184] — 
Sec. 12 : 574. 

Factories and Stiops Act 1909 (No. 2) [No. 
2241]— 
Sec. 39 : 136, 137. 

Factories and Shops Act 1910 [No. 2305] — 
Sec. 38 : 574. 

Fisheries Act 1890 [No. 1093] — 
Sec. 3 : 585. 
„ 15 : 585. 

Friendly Societies Act 1890 [No. 1094] — 
Sec. 5 : 593. 
„ 11 : 593, 594. 
„ 13 : 593, 594. 
„ 16 : 594, 595. 

Game Act 1890 [No. 1095]— 
Sec. 15 : 602. 

Health Act 1890 [No. 1098]— 

Eighteenth Schedule : 633, 634. 
Part IX. : 634. 
Sec. 32 : 635, 636. 

„ 35 : 635, 636. 

„ 43 : 630. 

„ 47 : 630. 

„ 49 : 630. 



Health Act 1890 [No. 1098] {continued) — 
Sec. 53 : 633. 
54 : 633. 

71 : 630, 631, 632. 
191 . 633. 
204 : 633. 
216 : 635. 
222 : 635. 

225 : 638. 

226 : 636, 637. 

Imprisonment op Fraudulent Debtors 
Act [No. 1100]— 
Generally : 382, 385. 
Part III. : 382, 383, 385. 
Sec. 4 : 383. 
„ 5 : 383. 
„ 15 : 384, 385, 386. 
„ 16 : 383, 384. 

Income Tax Act 1895 [No. 1374] — 
Sec. 2 : 678, 679, 685. 
5 : 683. 

7 : 678, 679. 

8 : 683, 685. 

9 : 677, 681, 682, 683, 685. 
12 : 683, 685. 
27 : 686. 

Income Tax Act 1896 [No. 1467] — 
Sec. 4 : 683, 685. 
„ 6 : 682. 
„ 12 : 683, 685. 

Income Tax Act 1903 [No. 1819] — 
Sec. 5 : 682. 

Sec. 9 : 674, 675, 676, 678, 679, 682. 
„ 11 : 680. 

Indeterminate Sentences Act 1907 [No. 

2106]— 

Sec. 3 : 367. 

„ 6 : 367. 

„ 32 : 367. 

Insolvency Act 1890 [No. 1102]— 
Generally : 707. 
Sec. 4 : 708. 

„ 12 : 719. 

„ 31 • 705. 

„ 37 : 701, 702, 703, 704, 705, 711. 

„ 40 : 715. 

„ 41 : 702, 717. 

„ 43 : 705. 



cxv 



REFERENCES TO STATUTES. 



CXVI 



Insolvency Act 1890 [No. 1 


.02] {continued)- — 


Insolvency Act 1897 [No. 1 513] (continued) 


Sec. 45 : 705. 




Sec. 113 : 716. 




, 53 : 723. 




„ 115 : 726. 




, 56 ; 729. 




„ 116 : 710, 731, 732. 




, 59 : 708. 
, 61 : 708. 
, 63 : 708. 
, 70 : 708. 
, 71 : 711. 
, 73 : 710, 711, 712, 


713, 731. 


Insolvency Act 1903 [No. 1836]— 

Sec. 4 : 723. 

„ 9 : 724. 

„ 10 : 719. 

„ 16 : 729. 




, 74 : 711. 




Instruments Act 1890 [No. 1103] — 




, 76 : 706, 707. 




Schedule V. : 74. 




, 77 : 716. 




Part VI. : 81. 




, 96 : 727. 




Sec. 21 ■ 76, 77. 




, 99 : 726. 




„ 38 : 76, 77. 




, 113 : 706, 707. 




• „ 55 : 76, 77. 




, 115 : 715, 716. 




„ 56 : 76, 77. 




, 123 : 715, 716, 724. 




,, 57 : 76, 77. 




, 135 : 719, 720, 725. 




„ 65 : 734. 




, 138 : 727, 729. 




„ 90 : 76, 77. 




, 139 : 726, 727, 729. 




„ 92 : 735. 




, 141 : 730, 731. 




„ 93 : 735. 




, 142 : 728. 




,, 133 : 75. 




, 145 : 729, 730. 




„ 134 : 74. 




, 149 : 728. 




„ 135 : 74. 




, 150 : 708. 




,, 142 : 75, 76. 




, 153 : 719. 




„ 144 : 75. 




, 154 : 719. 




„ 169 : 736. 


Insol 


vbncy Act 1897 [No. 


1513]— 


„ 170 : 736. 


P 


art VI. ■ 717, 718, 723 


, 725. 


„ 171 ■ 736. 


S 


3c. 5 : 708. 




„ 208 : 194, 195, 196, 197. 




, 10 : 705. 




„ 209 : 194. 




, 19 : 721. 
, 20 : 724. 




Intestates Real Estate Act [No. 230] — 




, 27 : 718, 719. 




Generally : 1324. 




, 30 : 726. 

, 32 : 725, 726. 

, 35 : 726. 




Intestates' Estate Act 1896 [No. 1419] 
Generally : 557, 558. 




, 40 : 722, 729. 




Juries Act 1890 [No. 1104] — 




, 41 : 722, 728. 




Tenth Schedule : 772. 




, 42 : 722. 




Sec. 39 : 771. 




, 43 : 726. 




„ 77 ■ 772. 




, 65 : 723. 
, 69 : 726. 
, 79 : 715. 




Juries Act 1895 [No. 1391]— 
Sec. 4 : 762. 




, 91 : 718, 728, 729. 




Justices Act 1890 [No. 1105]— 




, 92 : 727. 




Generally ■ 778. 




, 93 : 728, 729. 




Sec. 4 : 786, 790. 




, 100 : 714. 




„ 20 : 785, 787, 884. 




, 109 : 702. 




„ 23 : 783. 




, 111 : 715, 718, 719, 


720. 


„ 29 • 786. 



CXVII 



REFERENCES TO STATUTES. 



GXVIII 



Justices Act 1890 [No 


1105] {continued) 


Sec. 36 


: 785, 


787, 


803. 






„ 41 


786. 










„ 59 


: 775, 


782, 


789, 


790, 


796. 


„ 64 


786. 










„ 65 


367. 










„ 69 


■ 776. 










„ 70 


■ 775, 


803. 








„ 72 


800. 










„ 73 


634, 


775. 








„ 74 


783. 










„ 77 


782, 


786, 


787. 






„ 78 


785, 


787. 








„ 89 


777, 


782. 








„ 94 


793. 










„ 98 


794. 










„ 102 


793. 










„ 108 


885. 










,, 115 


793, 


794. 








„ 117 


795, 


801. 








„ 119 


801. 










„ 124 


801. 










„ 127 


796. 










„ 128 


801. 










„ 131 


793. 










„ 141 


697, 


782, 


797 


798 


, 804. 




805. 








„ 144 


802. 










„ 146 


803, 


805. 








„ 147 


804. 










„ 148 


805. 










„ 187 . 


781. 










„ 191 


796. 










„ 198 


795. 










Justices Act 1896 


]No. 


1458]— 




Sec. 4 : 777, 793. 









Justices Act 1904 [No. 1959] — 
Third Schedule : 782. 
Sec. 17 : 782. 
„ 21 : 798. 

Land Act 1869 [No. 360]— 
Sec. 19 : 909. 
„ 20 : 909. 

Land Act 1901 [No. 1749] — 

Sec. 35 : 1288. 

„ 49 : 1288. 

„ 56 : 1288. 

„ 160 : 859. 



Landlord and Tenant Act 1890 [No. 
1108]— 
Eighth Schedule : 816, 817. 
Ninth Schedule : 817. 
Sec. 81 : 813. 
83 : 813. 

86 : 813. 

87 : 813. 

88 : 813. 

92 : 815, 816, 817; 

93 : 815, 817. 

Legal Practitioners Reciprocity Act 
1903 [No. 1887]— 
Sec. 2 : 1171. 
„ 7: 1171. 

Legal Profession Practice Act 1891 [No. 
1216]— 
Generally : 297. 



3NSI 


ng Act 1885 [No. 857]— 


Sec 


54 : 829. 


:nsi 


ng Act 1890 [No. 1111]— 


Sec 


3 : 829, 831. 


« 


4 : 831. 


it 


5 : 829, 834, 835. 


11 


7 • 823, 824, 826, 829. 


It 


10 : 834. 


„ 


11 : 834. 


„ 


12 : 835. 


J) 


31 : 828. 


»» 


32 : 828, 830. 


tt 


33 : 828, 830. 


ft 


34 : 828, 830. 


»» 


38 : 824. 


it 


44 : 829. 


„ 


55 : 827. 


11 


58 : 826, 842. 


99 


62 : 826. 


11 


66 : 830. 


It 


74 : 829. 


It 


85 : 825, 826. 


tt 


92 : 824, 826. 


II 


93 : 824, 826. 


It 


101 : 829. 


ft 


115 : 826. 


It 


121 : 827, 839. 


it 


124 : 838. 


it 


125 : 784, 785, 788. 


it 


128 : 834. 


it 


134 : 829, 834, 837, 840. 



CXIX 



REFERENCES TO STATUTES. 



cxx 



Licensing Act 1890 [No 1111] {continued) — 


Local Government Act 1891 [No. 1243] — 


Sec 


135 : 840. 


See. 64 : 860. 


,, 


148 : 839. 


„ 77 : 429, 430. 




, 


153 : 839. 


Local Government Act 1903 [No. 1893] — 




7 


154 : 829. 


Generally : 869. 




J 


170 : 829. 


Thirteenth Schedule, Part VI. : 856. 




, 


177 : 822. 


Thirteenth Schedule, Part XL, r. 29 : 852. 




t 


181 : 829. 


Part III. : 852. 




) 


182 : 831, 832, 833. 


Part V. : 852. 


Licensing Act 1904 [No. 1929] — 


Sec. 2 : 855, 860. 


Sec 


. 6 : 828. 


„ 119 : 851. 


Licensing Act 1906 [No. 2068] — 


„ 120 : 851. 


Generally : 830. 


„ 143 : 851. 


Sec 


23 : 999. 


„ 149 : 851. 


„ 


31 : 835, 836. 


„ 155 : 852. 




, 


32 : 835, 836. 


„ 179 : 852. 




, 


42 : 829. 


„ 197 : 852, 853, 854, 855, 856. 




, 


44 : 827, 828, 830, 841. 


„ 203 : 854. 




, 


45 : 829, 831. 


„ 213 : 854. 




, 


50 : 830. 


„ 222 : 854. 




, 


51 : 824. 


„ 232 : 857. 




> 


53 : 823. 


„ 249 : 858, 859. 




, 


65 : 825. 


„ 265 : 859. 




y 


66 : 825. 


„ 324 : 860, 1222, 1223. 




y 


68 : 827. 


„ 325 : 861. 




, 


73 : 838. 


„ 326 : 861. 




, 


76 : 837. 


„ 327 : 861. 




, 


78 : 840. 


„ 328 : 861. 




, 


81 : 834. 


„ 340 : 861. 




, 


91 : 838. 


„ 341 : 860, 861, 1222, 1223. 




> 


93 : 839. 


„ 342 : 860, 861, 1222, 1223. 




, 


98 : 840. 


„ 343 : 860, 861, 1222, 1223. 




, 


110 : 830. 


„ 345 : 429, 430, 862. 




, 


112 : 830. 


„ 346 : 429, 430. 


Licensing Act 1907 [No. 2103] — 
Sec. 7 : 830. 


„ 347 : 429, 430. 
„ 354 : 862, 863. 


Licensed Premises Act 1894 [No. 1364] — 
Sec. 2 : 820. 


„ 355 : 429, 863. 
„ 372 : 862. 


Licensed Carriages Statute 1864 [No. 
217]— 
Sec. 3 : 92, 93. 
„ 4 : 92. 93. 
Local Government Act 1874 [No. 506] — 


„ 455 : 863. 
„ 456 : 863. 
„ 492 : 866. 
„ 514 : 865. 
„ 517 : 865. 
„ 522 : 865. 


Thirteenth Schedule, Part V., Sec. 1 : 855. 


„ 523 : 865. 


Local Government Act 1890 [No. 1112] — 


„ 524 : 865. 


Thirteenth Schedule, Part V., Sec. 1 : 855. 


„ 525 : 865. 


Sec. 


2 : 855. 


„ 526 : 864. 


J» 


235 : 860. 


„ 594 : 853. 


JJ 


304 : 429, 430. 


„ 595 : 429, 430. 


» 


9 


311 : 429, 430. 


„ 610 : 854. 



CXXI 



REFERENCES TO STATUTES. 



CXXII 



Local 


Government Act [No. 1893] {con- 




tinued) — 


Sec 


613 : 854. 


>> 


635 : 854. 




, 


693 : 871. 




3 


694 : 871. 




3 


695 : 871. 




» 


696 : 871. 




S 


697 : 871. 




3 


704 : 860, 1222, 1223. 




, 


708 : 873, 874, 875. 




, 


710 : 873, 874, 875. 


Lotteries Gaming and Betting Act 1906 




[No. 2055]— 


Sec 


. 5 : 607, 608. 


»> 


10 : 607, 608, 614, 615. 


?> 


12 : 606, 607. 


J9 


lo : 607, 608. 


>3 


17 : 607, 608, 614, 615. 


33 


22 : 608. 


S, 


31 : 606. 


33 


38 : 876, 877. 


>> 


50 : 999. 




3 


61 : 878. 



Lunacy Act 1890 [No. 1113]— 
Sec. 130 : 879. 
„ 206 : 879. 

Markets Act 1890 [No. 1115] — 
See. 25 : 895, 896. 

Marriage Act 1890 [No. 1166]— 
Sec. 31 : 688, 689. 
33 : 688, 689. 

42 : 881, 882, 883, 885. 

43 : 881, 882, 883, 884, 885, 886, 
887, 888. 

46 : 641. 

51 : 884, 886, 887, 889. 

52 : 889. 

74 : 643, 647, 648, 650, 651, 652, 
654. 

75 : 643. 

76 : 643. 
78 : 656. 
83 : 654. 

86 : 652, 653, 654. 

87 : 662. 

88 : 663. 

110 : 656. 

111 : 658, 659, 660, 661. 



Marriage Act 1890 [No. 1167] (continued) — 
Sec. 114 : 658. 
„ 126 : 482. 

Marriage Act 1900 [No. 1684] — 
Sec. 4 : 668. 
„ 5 : 668. 
„ 7 : 889. 

Marriage Act 1901 [No. 1737] — 
Sec. 3 : 345, 348. 
„ 4 : 348. 

Marriage Act 1909 [No. 2192] — 
Sec. 2 : 897. 
„ 3 : 897. 

Married Women's Property Act 1890* 
[No. 1116] — 
Sec. 13 : 664. 
„ 25 : 665. 

Medical Act 1890 [No. 1118] — 
Sec. 12 : 901, 902. 
„ 93 : 593, 594. 
„ 97 : 593, 594. 

Melbourne and Geelong Corporation 
Acts Amendment Act 1863 (27 
Vict. No. 178].— 
Sec. 42 : 857. 
„ 43 : 857. 
Melbourne and Metropolitan Board of 
Works Act 1890 [No. 1197]— 
Sec. 71 : 904. 
„ 81 : 904. 
„ 85 : 904. 
„ 87 : 904. 
„ 88 : 904. 
Melbourne Harbour Trust Act 1890 [No. 
1119] — 
Sec. 62 : 857. 
„ 85 : 857. 
„ 142 : 905. 

Mildura Irrigation Trusts Act 1895 [No. 
1409]— 
Sec. 69 : 907. 
Mines Act 1890 [No. 1120]— 
Sec. 4 : 912. 

5 : 912, 913. 
64 : 909. 

179 : 920. 

180 : 918, 919. 
203 : 913. 



CXXIII 



EEFERENCES TO STATUTES. 



CXXIV 



Mines Act 1897 [No. 1514]— 
Sec. 29 : 908, 909, 910. 

44 : 909. 

45 : 915, 916. 
67 : 909. 
69 : 908, 909. 

73 : 909, 910. 

74 : 909, 910. 

75 : 909, 910, 911. 

76 : 909, 910. 

77 : 909, 910. 

78 : 909, 910. 

79 : 909, 910. 
91 : 908, 909. 
98 : 909, 910. 

112 : 909, 910. 

113 : 913. 
168 : 920. 

Mines Act 1904 [No. 1961] — 
Sec. 37 : 910. 
„ 64 : 920. 

Mines Act 1907 [No. 2127]— 
Sec. 9 : 914. 
„ 14 : 914. 

Money Lenders Act 1906 [No. 2061] — 
Sec. 4 : 925, 926. 

Motor Car Act 1909 [No. 2237]— 
Sec. 10 : 935. 
„ 14 : 936. 
„ 15 : 987. 
National Trustees Executors and 
Agency Company of Australasia 
Limited Act [No. 938] — 
Sec. 7 : 1248. 
„ 10 : 533, 1248. 

Neglected Children's Act 1890 [No. 
1121]— 
Sec. 18 : 797, 798. 
„ 19 : 797, 798. 

Opium Smoking Prohibition Act 1905 [No. 
2003]— 
Sec. 10 : 959. 

Partnership Act 1891 [No. 1222] — 
Sec. 5 : 964. 
28 : 966. 
30 : 966. 
36 : 966. 
39 : 966. 
48 : 966. 



Patents Act 1890 [No. 1123] — 
Sec. 33 : 978, 979. 
„ 50 : 983. 
„ 56 : 972. 

Pawnbrokers Act 1890 [No. 1124] — 
Sec. 17 : 983. 
„ 39 : 983. 

Pensions Abolition Act 1881 [No. 710] — 
Sec. 1 : 1118. 
„ 2 : 1118. 

Perpetual Executors and Trustees Asso- 
ciation Act [No. 840] — 
Sec. 4 : 533. 

Poisons Act 1890 [No. 1125] — 
Sec. 4 : 985. 
„ 11 : 985. 

Police Offences Act 1890 [No. 1126] — 
Second Schedule : 999. 
Sec. 6 : 986. 

„ 17 : 987. 

„ 26 : 988. 

„ 27 : 988. 

„ 37 : 997. 

„ 40 : 988, 989, 990, 992. 

„ 41 : 992, 993. 

„ 49 : 994, 995, 999, 1000, 1002, 1004. 

„ 50 : 994. 

„ 51 : 994, 995, 999, 1000, 1001, 1002, 

1004. 
„ 52 : 994. 

„ 57 : 999, 1000. 

„ 62 : 606, 994. 

„ 64 : 606, 1001. 

„ 82 : 1003. 

„ 89 : 1002, 1004. 

„ 94 : 1003. 

Police Offences Act 1891 [No. 1241] — 
Sec. 5 : 987. 
„ 7 -. 988. 

Police Offences Act 1907 [No. 2093]— 
Sec. 4 : 990, 991. 
„ 5 : 992, 993. 
„ 8 : 991. 
„ 10 : 993, 994. 

Police Regulation Act 1890 [No. 1127] — 
Sec. 20 : 985. 
„ 24 : 985. 
„ 58 : 985. 



cxxv 



REFERENCES TO STATUTES. 



CXXVI 



Pounds Act 1890 [No. 1129] — 
Third Schedule : 1007. 
Sec. 4 : 1007. 

5 : 1007. 

6 : 1007. 

7 : 1007. 

8 : 1007. 

9 : 1007. 

18 : 1007. 

19 : 1007. 

20 : 1007. 

21 : 1006, 1007. 

22 : 1006, 1007. 
28 : 1007. 

Public Service Act 1883 [No. 773] — 
Sec. 99 : 1118. 

Public Service Act 1890 [No. 1133] — 
Sec. 3 : 1120. 
„ 107 : 1118. 

Public Service Act 1893 [No. 1324] — 
Sec. 22 : 1118. 

Public Service Act 1900 [No. 1721] — 
Sec. 8 : 1115. 
„ 19 : 1114, 1115. 

Pure Food Act 1905 [No. 2010]— 
Sec. 3 : 630. 

23 : 630. 

32 : 631, 632. 

33 : 630, 631. 

35 : 629, 630, 631, 632. 

36 : 367, 368, 629, 631. 
41 : 628, 629. 

Railways Act 1890 [No. 1135]— 
Sec. 33 : 1127. 
70 : 1127. 

86 : 1127. 

87 : 1127. 

88 : 1127. 
93 : 1127, 1128. 

105 : 1127. 

Railways Act 1891 [No. 1250]— 
Sec. 4 : 1126. 
„ 5 : 1126. 

Railways Act 1896 [No. 1439]— 
Sec. 21 : 1126. 



Real Property Act 1890 [No. 1133] — 



Part II. 


846, 847. 


Sec. 18 


1129, 1130, 1131 


„ 23 


1129. 


„ 43 


1130, 1131. 


.. 47 


845, 1130, 1131. 


„ 64 


1164. 


„ 90 


1164. 


„ 108 


1338. 


„ 215 


1225. 


„ 216 


1225. 



Real Property Act 1907 [No. 2086] — 
Sec. 3 : 1129. 
„ 4 : 1129. 

Registration of Firms Act 1892 [No. 
1256]— 
Sec. 4 : 964. 

Sale of Goods Act 1896 LNo. 1422] — 
Sec. 9 : 1145. 

Secret Commissions Prohibition Act 1905 
[No. 1974]— 
Sec. 2 : 1148. 
„ 14 : 1148. 

Settled Estates and Settled Lands Act 
1909 [No. 2235] 



See. 50 


1156, 1157. 


„ 51 


1155, 1156, 1157, 1158. 


„ 98 


1157. 


„ 99 


1156. 


„ 101 


1157. 


„ 117 


1157. 


„ 118 


1157. 


„ 121 


1157. 


„ 124 


1155, 1156, 1157, 1158. 


„ 127 


1156, 1157, 1158. 


, 128 


1156, 1157. 


„ 132 


1157. 


Settlement of Lands Act 1893 [No. 1311] 


Sec. 5 : 809. 


„ 10 : 809. 


Stamps Act 1890 [No. 1140]— 


Third Schedule : 1181, 1182, 1185. 


See. 23 : 1185. 


„ 32 : 1185. 


„ 34 : 1185. 


„ 71 : 1185. 


„ 81 : 1181. 


„ 93 : 


1182. 



CXXVII 



REFERENCES TO STATUTES. 



CXXVIII 



Stamps Act 1890 [No. 1140] (continued) — 
Sec. 95 : 1182. 
„ 97 : 1182. 
„ 98 : 1185. 
Stamps Act 1892 [No. 1274]— 

Schedule : 1181, 1182, 1183, 1185. 
Sec. 4 : 1182. 
„ 17 : 1182. 
„ 27 : 1183. 
„ 28 : 1182, 1183, 1184. 

Stock Diseases Act 1890 [No. 1141] — 

Sec. 74 : 1191, 1192. 
Street Betting Suppression Act 1896 [No. 
1436]— 

Sec. 7 : 615, 616. 
Supreme Court Act 1890 [No. 1142] — 

Sec. 4 : 424. 

20 : 408, 409, 561. 

21 : 408, 409, 561. 
25 : 96, 1013. 
31 : 96. 

37 : 894, 1013. 
58 : 1014, 1065. 
60 : 1014. 

62 (5) : 30, 31, 1015. 

63 (6) : 1016. 
63 (11) : 1019. 
85 : 1020, 1021. 

90 : 478, 1022. 

91 . 1022, 1023. 
110 : 1023. 
141 : 49. 
152 : 47, 48. 
160 : 49. 
177 : 1024. 

185 : 1024, 1025. 

186 : 1024, 1025. 
202 : 814. 
209 : 267. 
231 : 1026, 1027. 

261 • 1027, 1028. 

262 : 1028. 
Thistle Act 1890 [No. 1145] — 

See. 4 : 1211, 1212. 
Trade Marks Act 1890 (No. 2) [No. 1183]— 
Sec. 8 : 1215. 

„ 13 : 1217. 

„ 16 : 1213, 1214, 1215. 

„ 17 : 1213, 1215. 

„ 29 : 1214. 



Tramways Act 1890 (No. 1148]— 
Generally : 870, 871. 
Second Schedule, Part II., el. 17 : 870, 

872. 
Sec. 5 : 872. 

Transfer of Land Statute 1866 [No. 301] — 
Sec. 86 : 1159. 



Transfer of 


Land Act 1890 [No. 1149]— 


Generally 


: 537, 


1224, 


1230, 


1237, 1256. 


Schedule XIII. 


1234 






Schedule XXV. 


, Table A. : 


1290. 


Part IV. 


: 1227. 








Part IX. 


: 1236. 








Sec. 4 : 


1234. 








„ 21 : 


1223. 










, 22 : 


1225. 










, 24: 


1225. 










, 25 : 


1225. 










, 26 : 


1225. 










, 28 


1223, 


1225, 


1236. 






, 29 : 


1225, 


1236. 








, 30 


1236. 










, 31 


1225, 


1236. 








, 33 


1225, 


1235, 


1236. 






, 34 


1225, 


1235. 








, 57 


1233. 










, 59 


1234. 










, 65 


1233. 










, 69 


1224, 


1225. 








, 74 


1224, 


1225, 


1229, 


1231. 




, 75 


1229. 










, 89 


1227, 


1228, 


1231. 






, 91 


1227. 










, 95 


1231. 










, 113 


1232, 


1233, 


1234. 






, H4 


1232. 










, 116 


1232. 










, 121 


1231. 










, 124 


1231. 










, 129 


1231. 










, 130 


1231. 










, 140 


1229, 


1234. 








, 164 


1225. 










, 165 


1225. 










, 174 


: 1225. 










, 175 


: 1225. 










, 176 


: 1225, 


1236. 








„ 177 


: 1225. 










„ 178 


: 1225. 










„ 179 


: 1225. 









CXXIX 



REFERENCES TO STATUTES. 



cxxx 



Transfer op Land Aot 1890 [No. 1149] 
(continued) — 
Sec. 180 : 1225. 

181 : 1225. 

182 : 1225. 

183 : 1225, 1236. 

184 : 1225. 

185 : 1225. 

186 : 1227. 
188 : 1237, 1251. 
194 : 1225, 1227. 

199 : 1225. 

200 : 1225. 
205 : 1225. 

209 : 1227, 1233. 

210 : 1225. 
229 : 1233. 
240 : 1232, 1233, 1234. 

Transfer of Land Act 1904 [No. 1931] — 
Sec. 10 : 1238, 1239. 
„ 11 : 1238. 

Trusts Act 1890 [No. 1150] — 
Sec. 4 : 1251. 

17 : 1251. 
34 : 1248, 1251. 
36 : 1251. 
60 : 1264, 1265. 
88 : 1261. 
90_: 1261. 

Trusts Act 1896 [No. 1421] — 
Sec. 4 : 1248. 
7 : 1251. 
11 : 1260. 

18 : 1335. 

19 : 1249. 
22 : 1261. 
28 : 1268. 

Trusts Act 1901 [No. 1769}— 
Sec. 2 : 548. 

Trusts Act 1906 [No. 2022]— 
See. 4 : 1261. 

Union Trustees Executors and Adminis- 
trators Company Act [No. 839] — 
Sec. 3 : 532, 533. 

Vermin Obstruction Act (No. 1153] — 
Sec. 20 : 1298, 1299. 
„ 22 : 1298. 
„ 26 : 1299. 



Victoria Racing Clur Act 1871 |Nn. 398] — 
Sen. 7 : 603, 604, 1299. 

8 : 603. 604, 1299. 

9 : 603, 604, 1299. 

10 ■ 603, 604, 1299. 

11 : 603, 604, 1299. 

12 : 603, 604, 1299. 

13 : 603, 604, 1299. 

14 : 603, 604. 1299. 

15 : 603, 604, 1299. 

16 : 603, 604, 1299. 

17 • 603, 604, 1299. 
IS : 603, 604, 1299. 

19 : 603, 604, 1299. 

20 : 603, 604, 1299. 

Water Act 1905 [No. 2016]— 
Sec. 231 : 1303, 1304. 

Weights and Measures Act 1890 [No. 
1158]— 
Sec. 54 : 1304. 

Widows \nd Young Children Mainten- 
ance Act 1906 [No. 2074] — 
Generally : 1305. 
Sec. 3 : 1305, 1306, 1307. 

„ 7 : 1307. 

„ 8 : 1306, 1307. 

„ 9 : 1305, 1306. 
Wills Act 1890 [No. 1159]— 
Sec. 3 : 1310. 

„ 7 : 1311, 1312. 

„ 8 : 1311. 

„ 18 : 1310. 

„ 26 : 1339. 

„ 35 : 1353, 1354, 1355. 

„ 36 : 1353. 

Wrongs Act 1890 [No. 1160]— 

Generally : 397. 

Sec. 5 : 397, 398. 

„ 14 : 534, 535. 

„ 15 : 534, 535. 

„ 16 : 534, 535. 



STATUTES OF OTHER STATES. 

3 Vict No. 19 (N.S.W.)— 
Sec. 23 : 896. 

6 Vict. No. 7 (N.S.W.)— 
Sec. 71 : 896. 
„ 72 : 896. 



CXXXI 



REFERENCES TO STATUTES. 



CXXXII 



STATUTES OF THE COMMONWEALTH. 

Australian Industries Preservation Act 
1906 [No. 9 of 1906]— 
Sec. 5 : 120. 
„ S • 120. 

Australian Industries Preservation Act 
[No. 9 of 1906 ; No. 5 of 1908]— 
Sec. 156 ■ 126. 

Australian Industries Preservation Act 
1906-1909 [No. 9 of 1906 • No. 26 of 
1909]— 
Sec. 156 : 68. 

Commonwealth Conciliation and Arbi- 
tration Act 1904 [No. 13 of 1904] — 
Generally : 121, 122, 124, 438, 439. 
Sec. 4 : 437, 438. 
7 : 437, 438. 
9 : 437. 
19 : 122. 
21 : 442. 

31 - 17, 443, 444. 
38 : 122. 
55 : 437, 438. 

57 : 442. 

58 : 437. 
60 : 437. 
65 : 437. 
68 : 110. 

,. 73 : 437. 

Commonwealth Conciliation and Arbi- 
tration Act [No. 7 of 1910], col. 122. 

Commonwealth Electoral Acts — 
[No. 19 of 1902]— 
Sec. 151 : 111. 
„ 158 : 111, 112. 
[No. 19 of 1902 ; No. 26 of 1905]— 
Sec. 182:112. 
„ 198 : 112, 113. 
[1902-1909]— 

Sec. 109 : 113. 

[No. 19 of 1902 ; No. 17 of 1911] — 
Sec. 181aa : 426, 427. 

Commonwealth Public Service Act 1902 
[No. 5 of 1902]— 
Sec. 8 : 1114. 
„ 46 : 1116, 1117, 1118. 
„ 51 : 1114. 



Commonwealth Public Service Act 1902 
[No. 5 of 1902] [continued) — 
Sec. 60 : 1114. 
„ 78 : 1114, 1118. 
„ 80 : 1114. 

Customs Act 1901 [No. 6 of 1901]— 
Generally : 375. 
Sec. 154 : 376. 

167 : 375. 

229 : 377. 

233 : 377. 

234 : 377. 
240 : 377. 
241.: 377. 

Customs Tariff Act 1902 [No. 14 of 1902] — 
Schedule, Division XIII., Items 122, * 
123 : 375. 

Customs Tariff Act 1908 [No. 7 of 1908]— 
Sec. 3 : 374. 
„ 4 : 374. 
„ 5 . 374. 
„ 7 : 374, 375. 

Defence Act 1903-1910 — 
Sec. 61 : 399. 
„ 125 : 399. 
„ 135 : 399. 
„ 138 : 399. 
„ 143 : 399. 

Immigration Restriction Act 1901 [No.'; 17 
of 1901]— 
Generally : 669, 670, 671. 
Sec. 3 : 669, 671, 672. 
„ 5 : 671. 
„ 7 : 671. 

Immigration Restriction Act 1905 [No.]17 
of 1905]— 
Generally : 670, 671. 
Sec. 4 : 669, 672. 
„ 8 : 672. 
„ 14 : 672. 

Judiciary Act 1903 [No. 6] — 
Part VI. : 626. 
Sec. 30 : 17. 
33 : 17. 

37 : 30, 31. 

38 : 17. 

39 : 14, 19, 20, 21. 
56 : 402, 403. 



CXXXIII 



REFERENCES TO STATUTES. 



CXXXIV 



Judiciary Act 1903 [No. 6] (continued) — 
Sec. 64 : 402, 403. 
„ 69 : 360, 361. 
„ 80 : 355, 356. 

Land Tax Assessment Act 1910 [No. 22 of 
1910]— 
Sec. 11 : 819, 820. 
33 : 820. 

35 : 820. 

37 : 221. 

38 : 820. 
43 : 820. 
63 : 221. 

Naturalization Act 1903 [No. 11 of 1903] — 
Sec. 9 : 822. 
„ 10 : 822. 

Patents Act 1903 [No. 21 of 1903T — 
Generally : 978, 981. 
First Schedule : 980. 
Sec. 14 : 979. 

36 : 973, 974, 976. 
56 : 971, 974, 975, 976, 977. 
58 : 978, 979. 
62 : 980, 981. 
71 : 977. 
78 : 976. 
Ill : 979. 

Post and Telegraph Act 1901 [No. 12 of 
1901]— 
Sec. 80 : 1005. 
„ 97 : 1005. 

Post and Telegraph Rates Act 1902 [No. 
13 of 1902]: 237. 

Service and Execution op Process Act 
1901 [No. 11 of 1901]— 
Sec." 5 : 1150. 
8 : 1 150. 

10 : 1151. 

11 : 1151. 
16 : 1151, 1152. 
18 : 1152, 1153, 1154. 

Tasmanian Cable Rates Act 1906 [No. 10 
of 1906] : 237. 

Trade Marks Act 1905 [No 20 of 1905}— 
Generally : 1219. 
Part VII. : 638. 
Sec. 6 : 1217. 

S : 1214, 1215. 



Trade .Marks Act 1905 [No. 20 of 1905] 
(continued) — 
Sec. 9 : 1214. 
„ 14 : 1217. 
„ 16 : 1214. 
„ 25 : 1214. 
„ 28 : 1214. 
„ 32 : 1215 
„ 33 : 1216. 
„ 37 : 1216. 
... 41 : 1216. 
„ 46 : 1216, 1217. 

87 : 1221. 
„ 94 : 1216. 
„ 95 : 1217. 
„ 96 : 1217. 
„ 105 : 1216. 



IMPERIAL STATUTES. 

21 Jac. I. c 3 [Statute of Monopolies] — 
Sec. 6 : 971. 

21 Jac. I. o. 16 [Statute op Limitations] : 

844. 

29 Car. II. c 3 [Statute op Frauds] : 1187, 
et seq. 

6 Geo. II. c 35 • 609, 610. 

13 Geo. II. c. 18— 
Sec. 5 : 96. 

22 Geo. II. c. 46— 

Sec. 11 : 1170. 

21 Geo. III. c. 49 [Sunday Observance 
Act] — 
Generally : 1193. 
Sec. 1 : 1193. 
„ 3 : 1193. 

4 Geo. IV. c. 60— 

Generally : 609, 610. 
Sec. 41 : 609. 

9 Geo. IV. c. 83. 

Generally ; 11, 96. 
Sec. 24 : 610. 

7 & 8 Vict. c. 79 : 11. 

18 & 19 Vict. c. 55 [An Act for the better 
Government op Her Majesty's 
Australian Colonies] : 133. 



cxxxv 



REFERENCES TO STATUTES. 



CXXXVl 



23 & 24 Vict. c. 127. 
Sec. 10 : 1170. 

28 & 29 Vict. c. 63 [Colonial Laws Validity 
Act] : 14. 

44 & 45 Vict. c. 69 [Fugitive Offenders 
Act 1881]— 
Generally : 596, 597, 598, 599. 
Sec. 2 : 597. 
„ 3 : 598. 
„ 5 : 598, 599, 600. 
„ 6 : 599, 600. 
„ 9 : 597, 598. 
„ 29 : 599. 

63 & 64 Vict. c. 12 [Commonwealth of Aus- 
tralia Constitution Act] — 
Generally : 114, 133, 135, 136, 137, 138. 
Section V. : 123, 139, 583. 
The Constitution. 
Sec. 10 : 427. 
„ 31 Generally : 115, 120. 
„ 51 (1) : 126, 133. 
„ 51 (II.) : 116, 117. 
„ 51 (xx.) : 118, 119, 120, 126, 133. 



63 & 64 Vict. c. 12 [Commonwealth of 
Australia Constitution Act] (con- 
tinued) — 

Sec. 51 (xxvn.) : 120. 
51 (xxix.) : 121. 
51 (xxxv.) : 121, 122, 123, 136,439, 

440, 442, 583, 1113. 
51 (xxxvi.) : 125. 
51 (xxxix.) : 121, 122, 133, 139. 
55 : 118, 119, 120. 
61 : 133. 
71 . 125, 126, 127, 128. 

73 : 127, 128, 132. 

74 : 130, 131, 132. 

75 : 126, 128. 

76 : 129, 132. 

77 : 127, 128, 132. 
80 : 126. 
84 : 134. 
99 : 116. 

101 : 126, 133. 

108 : 135, 597. 

109 : 131, 135, 597. 
116 : 139. 



^ DIGEST 



OF 



REPORTED CHSES 

IN THE 

SUPREME COURT, COURT OF INSOLVENCY, AND COURTS OF MINES, 
OF THE STATE OF VICTORIA. 



For the years 1906 to 1912 inclusive. 



ABATEMENT 

Settlement — Trustee and cestui que trust — 
Appointment — Gifts out of specific fund — 
Gift of residue — Failure of fund — Abatement.] 

— See Settlements, a' Beckett v. Trustees 
Executors dec. Co. Ltd., (1908) 5 C.L.E., 512. 



ABUSE OF PROCESS 

Malicious arrest — Abuse of process of 
Court.] — The distinction between an action 
for malicious arrest and an action founded 
on an abuse of the process of the Court 
discussed. Varawa v. Howa/rd Smith & 
Co. Ltd., (1911) 13 C.L.R., 35; 17 A.L.R., 
499. H.C., Griffith, C.J., O'Connor and 
Isaacs, J J. 

Abuse of process — Insolvency proceedings 
to stifle litigation — Action by non-trader — No 
actual damage.] — Quaere, whether proceed- 
ings in insolvency taken to stifle litigation 
between the parties amount to an abuse of 
the process of the Court in respect of which 
an action will he. Quaere, also, whether 
such an action, if it will lie at all, will lie by a 
non-trader without proof of actual damage. 
Bayne v. Baillieu; Bayne v. Riggall, (1908) 
6 C.L.R., 382 ; sub nom., Bayne v. Blake, 



14 A.L.R., 426. H.C., Griffith, C.J., Barton 
and O' Connor, J J. 

Abuse of process of Court — Insolvency 
proceedings to stifle litigation — Action for 
damages in respect of — Special damage, 
whether necessary to prove.] — See Insol- 
vency. Bayne v. Blake, (1909) 9 C.L.R., 
347 ; 15 A.L.R., 486. 

Abuse of process of Court — Petition in 
insolvency during pendency of action between 
parties — Good petitioning creditor's debt.] — 

See Insolvency. Bayne v. Blake, (1909) 9 
C.L.R., 360. 

Order XIV. (a) (Rules of 1906)— Frivolous 
or vexatious action, what is — Order for arrest 
of witness in insolvency proceedings — Purpose 
of order not to discover assets but to hamper 
appeal to High Court — Action for damages 
in respect of such order — Conspiracy to 
oppress — No actual damage.] — See Practice 
and Pleading. Bayne v. Baillieu ; Bayne 
v. Riggall, (1908) 6 C.L.R., 382 ; sub nom., 
Bayne v. Blake, 14 A.L.R., 426. 

Order XIV. (A) (Rules of 1906)— Stay of 
action — Inherent jurisdiction — Abuse of pro- 
cess — Action frivolous or vexatious — Sum- 
mary judgment.] — See Practice and 
Pleading. Burton v. Bairnsdale, President, 
efcc, of Shire of, (1908) 7 C.L.R., 76; 14 
A.L.R., 529. 



ACCOUNTS— ADVERSE POSSESSION. 



4 



ACCOUNTS 

See EXECUTORS AND ADMINISTRA- 
TORS, PRACTICE AND PLEADING, 
TRUSTS AND TRUSTEES. 



ADEMPTION. 

Evidence — Legacy — Ademption — Gift 
made for same purpose as legacy — Statements 
by donor made subsequently to gifts as to 
intention in making gifts.] — See Evidence;. 
In re Leggatt ; Griffith v. Calder, (1908) 
V.L.R., 385 ; 30 A.L.T., 34 ; 14 A.L.R., 314. 

Ademption — Pecuniary legacy to be applied 
in uncontrolled discretion of trustees to 
several purposes — Subsequent gift by testatrix 
towards one of such purposes which was only 
imperfectly accomplished at death — State- 
ments as to her intention made by testatrix 
subsequently to gifts.] — See Will. In re 
Leggatt; Griffith v. Calder, (1908) V.L.R., 
385 ; 30 A.L.T., 34 ; 14 A.L.R., 314. 



ADMINISTRATION OF ESTATES OF 
DECEASED PERSONS 

See also, Duties on the Estates of De- 
ceased Peesons ; Executors and Ad- 
ministrators ; Tenant for Life and 
Remainderman ; Trusts and Trustees ; 
Will. 

Order II., r. 3 — Form of writ — Administra- 
tion action — Heading.] — See Practice and 
Pleading. Cameron v. Cameron, (1906) 
V.L.R., 13. 



ADULTERY 

See HUSBAND AND WIPE. 



ADVANCEMENT 

Parent and child — Purchase by parent in 
name of child — Presumption of advancement, 
when rebutted — Retention of life interest by 
parent — Real property, rule applicable to.] — 

Where property is purchased by a parent in 
the name of a child the presumption that the 
purchase is by way of advancement of the 



child is rebutted if it be shown that the 
parent intended to reserve a life interest to 
himself. This applies to both real and 
personal property. McKie v. McKie, 23 
V.L.R., 489 ; 19 A.L.T. 190 ; 4 A.L.R., 98, 
followed. Stuchey v. Trustees, Executors 
and Agency Co. Ltd., (1910) V.L.R., 55; 
31 A.L.T., 157; 16 A.L.R., 65. Madden, 
C.J. 



ADVERSE POSSESSION 

Adverse possession — Land under operation 
of Transfer of Land Act 1890 (No. 1149)— 
Land of several owners — Enclosed by common 
fence — Common use — Presumption of pos- 
session — Equivocal acts of possession — In- 
tention—Real Property Act 1890 (No. 1136), 
Part II.— Transfer of Land Act 1904 (No. 
1931), sees. 10 and 11.] — See Limitations 
(Statutes of). Clement v. Jones, 8 C.L.R., 
133 ; 15 A.L.R., 158. 

Possession — Adverse possession — Land of 
two owners within one fence — Re-entry of 
registered proprietor — Cutting firewood — Re- 
newal of survey marks on boundaries — Effect 
of.] — See Limitations (Statutes of). Clem- 
ent v. Jones, 8 C.L.R., 133 ; 15 A.L.R., 158. 

Possession — Land of two owners within one 
fence — Presumption of possession — Possession 
follows title — Equivocal acts of possession.] — 

See' Limitations (Statutes of). Clements 
v. Jones, 8 C.L.R., 133 ; 15 A.L.R., 158. 

Real Property Act 1890 (No. 1136), sec. 23 
— Adverse possession — Statutory period, when 
time begins to run — Tenancy at will — Creation 
of new tenancy — Permission of owner, acknow- 
ledgement of tenant that he holds by.] — See 
Limitations (Statutes of). Wilson v. 
Equity Trustees, Executors, &c. Co. Ltd., 
(1911) V.L.R., 481; 33 A.L.T., 89; 17 
A.L.R., 523. 

Real Property Act 1890 (No. 1136), sees. 
18, 23 — Adverse possession — Period of limita- 
tion, commencement of — New tenancy at 
will, what will create — Request for transfer 
of land.] — See Limitations (Statutes of). 
Wilson v. Equity Trustees, Executors, dec. 
Co. Ltd., (1911) V.L.R., 481 ; 33 A.L.T., 89 ; 
17 A.L.R., 523. 



AFFIDAVITS. 



Transfer of Land Act 1904 (No. 1931), sees. 
10, 11 — Land alienated after 1st October 
1862 — Crown grant not registered — Adverse 
possession.] — See Limitations (Statutes of). 
Burns v. Registrar of Titles, (1912) V.L.R., 
29 ; 18 A.L.R., 47. 

Transfer of Land Act 1904 (No. 1931), sec. 
10 — Supreme Court Rules 1906, Chapter 
VIII., r. 2 — Adverse possession, title by — 
Vesting order — Registered proprietor deceased 
— Practice.] — See Transfer of Land Act. 
Marriott v. Hoshen, (1911) V.L.R., 54; 32 
A.L.T., 115 ; 16 A.L.R., 604. 

Transfer of Land Act 1904 (No. 1931), sec. 
10 — Rules of the Supreme Court 1906, Chapter 
VIII., r. 2 — Adverse possession against regis- 
tered proprietor — Procedure — Registered pro- 
prietor deceased.] — See Limitations (Stat- 
utes of). Lamboum v. Hoshen, (1912) 
V.L.R., 394 ; 34 A.L.T., 101 ; 18 A.L.R., 
371. 

Transfer of Land Act 1904 (No. 1931), sec. 
10 — Adverse possession — Registered pro- 
prietor dead before commencement of adverse 
possession — No administration of his estate — 
Next of kin unknown — Duration of adverse 
possession.] — See Limitations (Statutes of). 
Lamboum v. Hoshen, (1912) V.L.-R-, 394; 
34 A.L.T., 101 ; 18 A.L.R., 371. 

Transfer of Land Act 1904 (No. 1931), sec. 
10 — Title by adverse possession against 
registered proprietor — Declaratory judgment 
sought — Action brought too soon — Liberty to 
apply at future date.] — See Limitations 
(Statutes of). Lamboum v. Hoshen, (1912) 
V.L.R., 394 ; 34 A.L.T., 101 ; 18 A.L.R., 
371. 



AFFIDAVITS 

See also, Habeas Corpus. 

Instruments Act 1890 (No. 1103), sees. 133, 
144— Declarations and Affidavits Act 1890 
(No. 1191), sec. 6 — Bill of sale — Registration 
— Affidavit verifying bill — Affidavit of renewal 
— Such affidavits to be made before commis- 
sioners for taking declarations and affidavits 
— Affidavits — Commissioners of Supreme 
Court — Restriction of authority.] — See Bill 



of Sale. Wrigglesworth v. Collis ; Spencer, 
claimant, 33 A.L.T. (Supplement), 13 ; 18 
A.L.R. (C.N.), 6. 

Affidavits filed but not used — Whether a 
part of the proceedings.] — The mere filing 
of an answering affidavit by one of the 
parties does not make it part of the proceed- 
ings. Manson v. Ponninghaus, (1911) V.L.R., 
239 ; 33 A.L.T., 1 ; 17 A.L.R., 238. Mad- 
den, C.J. (1911). 

Order XXXVIII., r. 3 (Rules of 1906)— 
Affidavit as to belief — Grounds of belief not 
stated — Admissibility.] — See Practice and 
Pleading. Manson v. Ponninghaus, (1911) 
V.L.R., 239 ; 33 A.L.T., 1 ; 17 A.L.R., 238. 

Supreme Court Act 1890 (No. 1142), sees. 
185, 186— Order XXXVIIL, r. 3 (Rules of 
1906) — Charging stock and shares — Charging 
order, whether final or interlocutory — Affi- 
davit of information and belief, admissibility 
of.] — See Practice and Pleading. Manson 
v. Ponninghaus, (1911) V.L.R., 239 ; 33 
A.L.T., 1 ; 17 A.L.R., 238. 

Petition by company for winding up of 
another company — Affidavit supporting peti- 
tion — Companies Act 1890 (No. 1074), sees. 
252, 253— Mines Act 1890 (No. 1120), sec. 
180.] — See Mining. Be Mount Lyell Consols 
Mining Corporation No Liability {No. 2), 30 
A.L.T. (Supplement), 17 ; 14 A.L.R. (C.N.), 
41. 

Order to review — Affidavits of justices — 
Duty of Justices as to — Facts to which Jus- 
tices may properly depose.] — See Justices of 
the Peace. Larhin v. Penfold, (1906) 
V.L.R., 535 ; 28 A.L.T., 42 ; 12 A.L.R., 337. 

Order to review — Affidavits in reply, when 
they may be used.] — See Justices of the 
Peace. Larhin v. Penfold, 12 A.L.R., 337. 

Order to review — Practice — Order nisi and 
affidavit in support — How brought to the 
knowledge of Justices — Subsequent affidavits, 
suggested practice as to.] — See Justices of 
the Peace. Larhin v. Penfold, (1906) V.L.R. 
535 ; 28 A.L.T., 42 ; 12 A.L.R., 337. 

Lotteries Gaming and Betting Act 1906 No. 
2055), sec. 38 — Application for declaration 



AFFILIATION— APPEAL. 



8 



that premises are a common gaming house — 
Affidavit of police officer showing reasonable 
grounds for suspecting — Whether police 
officer may be cross-examined thereon.] — 

See Gaming and Wagering. In re Lotteries 
Oaming and Betting Act 1906 ; In re 
Shanghai Club ; In re Ah Pow ; Ex parte 
Gleeson, (1907) V.L.R., 463 ; 29 A.L.T., 31 ; 
13 A.L.R., 360. 

Lotteries Gaming and Betting Act 1906 
(No. 2055), sec. 38 — Application for declara- 
tion that premises are a common gaming 
house — Affidavits in reply to affidavits of 
party opposing — Cross-examination of de- 
ponents.] — See Gaming and Wagering. 
In re Lotteries Gaming and Betting Act 
1906 ; In re Shanghai Club ; In re Ah 
Pow ; Ex parte Gleeson, (1907) V.L.R., 463 ; 
29 A.L.T., 31 ; 13 A.L.R., 360. 

Interpleader summons — Affidavit in sup- 
port—County Court Rules 1891, r. 230.]— See 

County Court. Looker v. Mercer, 28 
A.L.T. (Supplement), 15 ; 13 A.L.R. (C.N.) 
13. 



(No. 1063), sec. 6— Naturalization Act 1903 
(No. 11 of 1903), sees. 9, 10.]— See Licensing. 
In re Hall, 18 A.L.R. (C.N.), 20. 



AFFILIATION 

See MAINTENANCE AND MAINTEN- 
ANCE ORDERS. 



AGENT 

See PRINCIPAL AND AGENT. 



AGISTMENT 

Agister — Negligence — Liability — Horse 
placed among horned cattle — Horse injured 
by bull — Scienter.] — See Cattle. Sanderson 
v. Dunn, 32 A.L.T. (Supplement), 14 ; 17 
A.L.R. (C.N.), 9. 



ALIENS ACT 

Licensing — British subject — Licensing Act 
1890 (No. 1111), sec. 177— Aliens Act 1890 



ALLEGIANCE 

The Aliens Statute 1865 (No. 256)— Letters 
of naturalization issued under, effect of.]— 
For a discussion on the extra-territorial 
effect of naturalization under a Victorian 
law, see Ah Sheung v. Lindberg, (1906) 
V.L.R., 323 ; 27 A.L.T., 189 ; sub nam., 
Rex v. Ah Sheung, 12 A.L.R., 190. Cussen, 
J. (1906). (See 4 C.L.R., 949). 

Immigration Restriction Acts 1901-1905— 
" Immigrant," meaning of — Naturalised sub- 
ject domiciled in Victoria — Return to Victoria 
from China.] — See Immigration Restriction 
Acts. Ah Sheung v. Lindberg, (1906) 
V.L.R. 323 ; 27 A.L.T., 189 ; sub nom., Rex 
v. Ah Sheung, 12 A.L.R., 190. {See 4 C.L.R., 
949). 



AMENDMENT 

See COUNTY COURT, GENERAL SES- 
SIONS,' INSOLVENCY, JUSTICES OF 
THE PEACE, MINING, PRACTICE 
AND PLEADING. 



ANIMALS 

See CATTLE, CRIMINAL LAW, STOCK 
DISEASES ACT. 



APPEAL 






COL. 


To the Privy Council 


.. 10 


A. FROM THE HIGH COURT . . 


.. 10 


1. Where Appeal Lies 


.. 10 



(a) Certificate of the High Court 10 
(6) Special Leave . . . . 12 

, Practice . . . . . . 13 

(a) Where Judgment Reversed 
on Appeal . . . . . . 13 

(6) Stay of Proceedings . . 13 



APPEAL. 



10 



COL. 
B. FROM THE FULL COURT OF THE 

STATE . . . . . . . . 14 

1. Jurisdiction Generally . . . . 14 

2. Appealable Amount . . . . 15 

II. To the High Court . . . . 16 

A. THE COMMONWEALTH COURT OF 

CONCILIATION AND ARBITRATION ; 
PROHIBITION ; SPECIAL CASE . . 16 

B. IN TRADE MARK AND PATENT MAT- 

TERS . . . . . . . . 18 

O. FROM INFERIOR COURTS EXERCIS- 
ING FEDERAL JURISDICTION . . 19 
D. FROM THE COURTS OF THE STATE 21 

1. Where Appeal Lies . . . . 21 
(a) Jurisdiction Generally . . 21 
(6) Appealable Amount . . 23 
(c) Special Leave . . . . 24 

2. Practice . . . . . . 26 

(a) Notice : Parties . . . . 26 

(6) Pendency of Appeal, Effect 

of; Stay of Execution of 
Judgment Appealed from ; 
Bail, &c 27 

(c) Matters which May be Con- 

sidered ; Further Evidence ; 
New Trial 28 

(d) Execution of Judgment of 

High Court 30 

(e) Costs 32 

IH. To the Supreme Court of the 

State 33 

a. jurisdiction . . . . . . 33 

b practice . . . . . . . . 36 

1. Notice ; Setting Down of Ap- 

peal 36 

2. Constitution of Bench ; Over- 

ruling Previous Decision . . 37 

3. The Hearing ; Might to Begin ; 

Evidence to be Considered . . 37 

4. New Trial 39 

5. Stay of Execution . . . . 40 

6. Parties 40 

7. Costs 41 

IV. Court of Industrial Appeals .. . 41 

V. To General Sessions . . . . 42 

VI. To the Board of Public Health 44 



I. To the Privy Council. 

A. FROM THE HIGH COURT. 

1. Where Appeal Lies, 
(a) Certificate of the High Court. 

Commonwealth oi Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution 
sec. 74 — Appeal to King in Council — Certifi- 
cate of High Court — Reasons for granting, 
sufficiency of — Conflicting decisions of Privy 
Council and High Court.] — Per Griffith, C.J. 
Barton, O'Connor, Isaacs and Higgins, J J. , 
The fact that there are conflicting decisions 
of the Privy Council and the High Court 
on the question is not a sufficient reason for 
granting » certificate that the question is 
one which ought to be determined by His 
Majesty in Council. Per O'Connor. J. : It 
is the duty of the High Court to refuse the 
certificate where, if the certificate were given, 
the Privy Council would be likely to decide 
the question in a manner contrary to the true 
intent of the Constitution as interpreted 
by the High Court. Per Isaacs, J. : Aus- 
tralian considerations should have a weighty, 
perhaps a dominant force, in guiding the 
judgment of the High Court in granting or 
refusing a certificate. Baxter v. Commis- 
sioners of Taxation ; Flint v. Webb, 4 C.L.R., 
1087, 1178; 13 A.L.R., 313 (1907). 

Commonwealth of Australia Constitution Act 
(63 & 64 Vict. c. 12) — The Constitution, sees. 
74, 109 — Appeal to Privy Council — Question as 
to limits inter se of powers of Commonwealth 
and State, nature of — How distinguished from 
question of inconsistency between law of 
State and law of Commonwealth.] — Per 
Griffith, C.J., Barton, O'Connor and Isaacs, 
JJ. : Section 109 of the Constitution deals 
with the case of two admitted powers of 
legislation meeting on a concurrent field, and 
provides that in the event of inconsistency 
the one shall prevail over the other. The 
cases dealt with by section 74 are cases in 
which the question is whether an attempted 
exercise of the powers of either a State or the 
Commonwealth in such a manner as to inter- 
fere with the free exercise of the powers 
of the other of the two authorities is or is not 
within the limits prescribed by the Constitu- 



11 



APPEAL. 



12 



tion. The question whether a State Income 
Tax Act applied to the salaries of Federal 
officers is or is not to be considered as tres- 
passing upon a region exclusively assigned to 
the Commonwealth is a question of the kind 
referred to in sec. 74. Per Isaacs, J. : The 
question whether or not a State Income Tax 
Act levying tax upon federal officers propor- 
tioned to their Federal salaries clashes pro 
tanto with the Federal enactment that their 
remuneration shall be the full sum granted 
them by the Commonwealth is a question 
coming under sec. 109. Baxter v. Commis- 
sioners of Taxation ; Flint v. Webb, 4 C.L.R., 
1087, 1178; 13 A.L.R., 313 (1907). 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12) — The Constitution, 
sec. 74 — Questions as to the limits inter se of 
constitutional powers of Commonwealth and 
State — Conflicting decisions of Privy Council 
and High Court — Whether High Court final 
arbiter upon such questions — 9 Geo. IV. c. 
83 ; 7 & 8 Vict. c. 79 and Orders in Council 
thereunder.] — Per Griffith, C.J., Barton, 
O'Connor and Isaacs, J J., Higgins. J., 
dissenting : Upon all questions of the classes 
referred to in sec. 74 of the Constitution, 
except those in regard to which the High 
Court may by granting a certificate under 
that section have submitted itself to the 
guidance of the Privy Council, it is the High 
Court and not the Privy Council which is 
the ultimate arbiter. The High Court is not 
bound to follow a decision of the Privy Coun- 
cil given upon such a question without the 
certificate of the High Court and in conflict 
with a previous decision of the High Court 
with regard to which the grant of such a 
certificate was refused. Baxter v. Commis- 
sioners of Taxation ; Flint v. Webb, 4 C.L.R., 
1087, 1178 ; 13 A.L.R., 313 (1907). 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict.) c. 12— The Constitution, 
sec. 74 — " Decision . . . upon any ques- 
tion," meaning of — Appeal to Privy Council.] 

— Per Griffith, C.J., Barton, O'Connor and 
Isaacs, J J. -. " Decision of the High Court 
upon any question " means what the Court 
decides to be the law with regard to that 
question. It does not refer to the judgment 



inter partes in the cause. Baxter v. Com- 
missioners of Taxation ; Flint v. Webb, 4 
C.L.R., 1087, 1178; 13 A.L.R., 313 (1907). 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 74 — Interpretation, principles of — His- 
tory of Constitution, whether it may be 
considered — Appeal to Privy Council.] — Per 
Griffith, C.J., Barton and O' Connor, J J. : 
The duty of the High Court in regard to ques- 
tions under sec. 74 is to be determined upon 
consideration of the whole purview and his- 
tory of the Constitution. Baxter v. Com- 
missioners of Taxation ; Flint v. Webb, 4 
C.L.R., 1087, 1178; 13 A.L.R., 313 (1907). 

(6) Special Leave. 

Appeal to Privy Council — Special leave — 
Decree of High Court.] — Where petitioners 
for special leave have elected to appeal to the 
High Court of Australia, from which it is 
known that there is no further appeal without 
special leave, their Lordships will not, except 
in a very special case, entertain their peti- 
tion. Victorian Railways Commissioners v. 
Brown, (1906) A.C.; 381. (Privy Council). 

Practice — Special leave to appeal to Privy 
Council — Decree of High Court of Australia.] 

— Where on a petition for special leave to 
appeal from the High Court of Australia it 
appeared that the law as laid down by that 
Court could not be objected to. Held, that 
the question of the application of the law to 
the particular case involving simply the con- 
struction of a document, however substantial 
as between the parties, was not one of public 
importance, and that there was not sufficient 
ground for granting the petition. Wilfley 
Ore Concentrator Syndicate Ltd. v. N. Guth- 
ridge Ltd., (1906) A.C., 548. (Privy Council). 

Practice — Special leave to appeal to Privy 
Council from judgment of High Court — State 
Income Tax — Liability of Commonwealth 
officers.] — The High Court, having decided 
contrary to the decision of the Privy Council, 
that a State had no power to impose income 
tax upon a salary paid by the Commonwealth 
to its officers, or to a member of the Com- 
monwealth Parliament, resident in such 



13 



APPEAL. 



14 



State, the Commonwealth Parliament there- 
after passed an Act expressly authorizing 
the States to impose such taxation. Held, 
that petitions for special leave to appeal 
from the High Court decisions must be 
refused, the amount at stake being incon- 
siderable and the controversy having been 
closed. Webb v. Crouch ; Same v. Flint, 
(1908) A.C., 214; (1907) 5 C.L.R., 398. 
(Privy Council). 

2. Practice, 
(a) Where Judgment Reversed on Appeal. 
Appeal to Privy Council from Order of High 
Court — Order of High Court in two parts — • 
One part only appealed from — The whole 
order discharged — Re-affirmance of previous 
decision of High Court as to the part of the 
order not appealed from.J — Decision of the 
High Court in Cock v. Smith, 9 C.L.R., 773 ; 
15 A.L.R., 526, on a question of apportion- 
ment between tenant for life and remainder- 
man, followed, notwithstanding the decision 
of the Privy Council in Smith v. Cock, (1911) 
A.C., 317 ; 12 C.L.R., 30, reversing the 
previous judgment of the High Court, as 
this part of the judgment had not in fact 
been appealed from. Cock v. Aitken, (1911) 
13 C.L.R., 461 ; 18 A.L.R., 337. H.C., 
Griffith, C.J., Barton and O'Connor, J J. 

Trustee — Life tenant and remainderman — 
— Corpus and income — Costs paid by trustees 
under order of High Court — Decision of 
High Court reversed on appeal by one party 
to Privy Council — Effect on rights of parties 
not appealing — Indemnity of trustees — Rights 
of assignee of life tenant.] — See Tenant for 
Life and Remainderman. Cock v. Aitken, 
(1912) 15 C.L.R., 373 ; 18 A.L.R., 576. 

Appeal to Privy Council — Judgment of 
High Court reversed — Judgment of State 
Court restored— Practice — Order of Privy 
Council made order of High Court — Costs.] — 
See Cock v. Smith, 13 C.L.R., 129 ; 18 A.L.R., 
139. Griffith, C.J. 

(6) Stay of Proceedings. 

Practice — Appeal to Privy Council from 
decision of High Court — Stay of proceedings — 
Special circumstances — Danger of loss of 



evidence by delay.] — Where special leave has 
been given by the Judicial Committee of 
the Privy Council to appeal from a decision 
of the High Court in its appellate jurisdiction 
directing inquiries to be made in the Supreme 
Court of a State, the High Court will, pending 
the appeal, stay proceedings under its judg- 
ment, unless special circumstances be shown, 
e.g., the danger of necessary evidence being 
lost by delay. Bayne v. Blake, (1907) 4 
C.L.R., 944; 13 A.L.R., 101. Griffith, C.J. 
(1907) 

B. FROM THE FULL COURT OF THE STATE. 

1. Jurisdiction Generally. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12)— Power of Victorian 
Legislature (18 & 19 Vict. c. 55) — Income tax 
— Right of appeal from Supreme Court to 
Privy Council — Whether Commonwealth Par- 
liament may take away.] — Held, that a peti- 
tion by the Commonwealth for the dismissal 
on the ground of incompetency of an appeal 
from an order of the Supreme Court of 
Victoria relating to the assessment of an 
officer of the Commonwealth, resident in 
Victoria and receiving his official salary in 
that State, for income tax in respect of such 
salary, the income tax being imposed by an 
Act of the Victorian Legislature, should be 
dismissed. The Constitution Act does not 
authorise the Commonwealth Parliament to 
take away the right of appeal to the Privy 
Council existing in such case. Webb v. 
Outtrim, (1907) A.C., 81 ; 13 A.L.R. (C.N.), 1. 
(Privy Council). 

Judiciary Act 1903 (No. 6 of 1903), 
sec. 39— Federal jurisdiction of State Courts 
— Validity of grant of — Right of appeal 
to High Court — Prerogative right of appeal 
to Privy Council, whether affected — Com- 
monwealth of Australia Constitution Act (63 
& 64 Vict. c. 12 — The Constitution, sees. 
71, 77— Colonial Laws Validity Act (28 & 
29 Vict. C. 63.] — Per Griffith, C.J., Barton, 
O'Connor and Isaacs. J J. : Even if sec. 39 
(2) (a) of the Judiciary Act 1903 purports to 
take away the prerogative right of appeal to 
the Privy Council, and the section is to that 
extent ultra vires and inoperative, its failure 



15 



APPEAL. 



16 



in that respect does not affect the validity 
of the grant of federal jurisdiction to State 
Courts contained in the rest of the section 
and the consequent right of appeal to the 
High Court. Sed Quaere, whether sub-sec- 
tion (2) (a) should be construed as affecting 
the prerogative. Baxter v. Commissioners 
of Taxation ; Flint v. Webb, 4 C.L.R., 1087, 
1178 ; 13 A.L.R., 313 (1907). 

Appeal— Supreme Court Act 1890 (No. 1142), 
sec. 231 — Whether ultra vires the Parliament 
of Victoria.] — The Full Court of the State 
refused to go into the question whether sec. 
231 of the Supreme Court Act 1890 is ultra 
vires the Parliament of Victoria — the validity 
of that section having been assumed in a 
long series of decisions. In re " Maizo " 
and " Maizena " Trade Marks ; Robert 
Harper & Co. v. National Starch Co. (1906) 
V.L.R., 246 ; 27 A.L.T., 168 ; 12 A.L.R., 
164. F.C. Holroyd, A.C.J. , a' Beckett and 
Hodges, J J. (1906). 

2. Appealable Amount. 

Privy Council — Supreme Court Act 1890 
(No. 1142), sec. 231 — Appealable amount — 
" Matter in issue," what is — Assumption that 
contention of unsuccessful party was correct 
— Res judicata — Uncontradicted affidavits.] — 
An application by R. for the registration as 
a trade mark of a pictorial label containing 
the word " Maizo " was opposed by N. on 
the ground that the word " Maizo " so resem- 
bled N.'s trade mark and trade name " Maiz- 
ena " as to be likely to deceive and to create 
confusion in trade by causing R.'s goods to 
be passed off and mistaken for N.'s goods ; 
N. did not dispute that the word " Maizo " 
as used in the label could not deceive, but he 
contended that upon the true construction 
of sec. 17 of the Trade Marks Act 1890 (No. 
2) registration should be refused if the word 
" Maizo " might by any means or in any 
connection be used so as to deceive. The 
Court decided against this contention and 
granted the application. On motion for 
leave to appeal to the Privy Council, Held 
that in order to determine what was the matter 
in issue within the meaning of sec. 231 of 
the Supreme Court Act 1890 not only must 



the decision be assumed to be erroneous but 
that the said contention of N. must be 
assumed to be correct ; and that, on the 
uncontradicted affidavit of N. " that the 
average sales of Maizena in Victoria amounted 
to about £8,000 per annum " and " that the 
matter in issue — namely whether R.'s trade 
mark should be registered and whether the 
opposition should be allowed — amounts to 
more than the sum of £1,000 " leave to 
appeal should be granted. In re " Maizo " 
and " Maizena " Trade Marks ; Robert 
Harper & Co. v. National Starch Co., (1906) 
V.L.R., 246 ; 27 A.L.T., 168 ; 12 A.L.R., 
164. F.C. Holroyd, A.C.J., a' Beckett and 
Hodges, JJ. (1906). 

Order in Council 9th June 1860 — Supreme 
Court Act 1890 (No. 1142), sec. 231— Appeal- 
able amount — Judgment respecting property 
of value of £500 — Trade Mark.] — On motion 
by L. to expunge a trade mark of M., and a 
cross motion by M. to expunge or limit a 
trade mark of L., the Court dismissed the 
motion of L., and on M.'s motion limited the 
trade mark of L. to the class of goods in 
respect of which alone it was then being used 
by L. L. applied for leave to appeal to the 
Privy Council under the Order in Council 
of 9th June 1860. Held, that the fact that 
L.'s trade mark was worth over £500 did not 
entitle L. to have leave to appeal. Where 
the circumstances are such as to preclude the 
Court from forming, not a guess, but a reason- 
able conclusion as to the amount at stake, 
leave should not be given to appeal. Amos 
v. Fraser, 4 C.L.R., 78 ; 12 A.L.R., 481, 
considered. Lever Bros. Ltd. v. O. Mowling 
& Son, 30 A.L.T., 144 ; 15 A.L.R., 40. 
a'Beckett, J. (1908). 

II. To the High Court. 

A. THE COMMONWEALTH COURT OF CONCILIA- 
TION AND ARBITRATION ; PROHIBITION ; 
SPECIAL CASE. 

The Constitution (No. 63 & 64 Vict. c. 12), 
sec. 73 — Appellate jurisdiction of High Court- 
Court of Conciliation and Arbitration — Com- 
monwealth Conciliation and Arbitration Act 
1904 (No. 13 of 1904), sec. 31.]— An appeal 
lies to the High Court from a decision of 



17 



APPEAL. 



18 



the President of the Commonwealth Court of 
Conciliation and Arbitrarion dismissing an 
appeal to him from » decision of the Indus- 
trial Registrar disallowing objections to the 
Tegistration of an Association under the 
Commonwealth Conciliation and Arbitration 
Act 1904. Jumbunna Coal Mine No Liabil- 
ity v. Victorian Coal Miners' Association, 
<1908) 6 C.L.R., 309 ; 14 A.L.R., 701. H.C., 
Oriffith, C.J., O'Connor, Barton and Isaacs, 
JJ. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution 
sees. 71, 73, 75 (v)— Commonwealth Concilia- 
tion and Arbitration Act 1904 (No. 13 of 1904), 
sec. 31— Judiciary Act 1903 (No. 6 of 1903), 
sees. 30, 33 (b), 38— Prohibition— Jurisdiction 
of High Court to issue to Commonwealth 
Court of Conciliation and Arbitration— Whether 
prohibition original or appellate jurisdiction.] 
— Per Griffith, C.J., Barton and O'Connor, 
JJ. — The High Court has jurisdiction to 
issue prohibition to the Commonwealth 
Court of Conciliation and Arbitration either 
under sec. 75 (v) of the Constitution, the 
President of the Court being an officer within 
the meaning of that sub-section, or under 
sec. 33 of the Judiciary Act 1903, and whether 
an appeal does or does not lie to the High 
Court Per Isaacs, J. — Prohibition to re- 
vise or correct the proceedings instituted 
in another Court is appellate not original 
jurisdiction, and is therefore not within sec. 
75 (v.). But the High Court has jurisdiction 
to issue prohibition to the Commonwealth 
Court of Conciliation and Arbitration be- 
cause sec. 31 of the Commonwealth Concilia- 
tion and Arbitration Act 1904 has not taken 
away that part of the appellate power 
granted by the Constitution. The King 
and the Commonwealth Court of Conciliation 
and Arbitration and the President thereof and 
the Boot Trade Employees Federation, Ex 
parte Whybrow de Co., (1910) 11 C.L.R., 1 ; 
16 A.L.R., 373. 

High Court — Practice — Motion for prohibi- 
tion to restrain Commonwealth Court of Con- 
ciliation and Arbitration — Finding by Presi- 
dent that dispute exists, whether High Court 



bound by — The Commonwealth Constitution, 
sec. 51 (xxxv.).] — See Prohibition. The 
King and the Commonwealth Court of Con- 
ciliation and Arbitration and the President 
thereof and the Boot Trade Employees Federa- 
tion, Ex parte Whybrow <fc Co., (1910) 11 
C.L.R., 1 ; 16 A.L.R., 373. 

Commonwealth Court of Conciliation and 
Arbitration — Power of President to state case 
for opinion of High Court.] — For observations 
of the President of the Commonwealth Court 
of Conciliation and Arbitration as to his power 
to state a case for the opinion of the High 
Court, See Jumbunna Coal Mine No Liability 
v. Victorian Coal Miners' Association, 
(1908) 6 C.L.R., 309 ; 14 A.L.R., 701. 

Commonwealth Conciliation and Arbitration 
Act 1904 (No. 13 of 1904), sec. 31— Case 
stated for opinion of High Court — Duties of 
High Court and President respectively.] — 

See Employer and Employee. Federated 
Engine Drivers and Firemen's Association 
of Australasia v. Broken Hill Proprietary 
Co. Ltd., (1911) 12 C.L.R., 398; 17 A.L.R., 
285. 

B. IN TRADE MARKS AND PATENT MATTERS. 

Trade Mark — Practice — Costs — Award of 
costs by Law Officer — Discretion — Appeal to 
High Court— Trade Marks Act 1905 (No. 20 
of 1905), sees. 95, 96.] — The High Court has 
jurisdiction to entertain an appeal as to the 
costs awarded by the Law Officer on an 
appeal to him from the Registrar of Trade 
Marks. But on such an appeal the Court 
will not over-rule his order unless there has 
been a disregard of principle or a misappre- 
hension of facts. In re Gilbert ; Gilbert v. 
Hudlestone, 28 Ch. D., 549, applied. Alex- 
ander Ferguson & Co. v. Daniel Crawford 
dk Co., (1909) 10 C.L.R., 207 ; H.C. Griffith, 
C.J., O'Connor and Isaacs, J J. 

Patents Act 1903 (No. 21 of 1903) sec. 
58 — Appeal from decision of Commis- 
sioner of Patents — Directions as to procedure 
— The Patents Regulations 1904, r. 80 — 
Appeal book.] — In a pending appeal from 
a decision of the Commissioner of Patents a 
Justice of the High Court, upon an applica- 



19 



APPEAL. 



20 



tion under Rule 80 of The Patents Regula- 
tions 1904, directed that the appeal should 
be set down for hearing at the then current 
sittings of the Court, and that it be heard 
before the Full Court but not until ten days 
after the delivery of the appeal book. His 
Honor also gave directions as to the prepara- 
tion and printing of the appeal book. Moore 
v. Phillips, 13 A.L.R., 66. Isaacs, J. (1907). 

Patents Act 1903 (No. 21 of 1903) sees. 
14, 58, 111 — Appeal against decision of 
Commissioner of Patents — Costs of oppo- 
sition to grant of patent before Commis- 
sioner.] — The costs of a successful appel- 
lant's opposition before the Commissioner 
were allowed on the lower Supreme Court 
scale. Moore v. Phillips, 4 C.L.R., 1411 ; 13 
A.L.R., 424. H.C., Griffith, C.J., Barton, 
Isaacs and Higgins, J J. (1907). 

O. FROM INFERIOR COURTS EXERCISING 
FEDERAL JURISDICTION. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sees. 73, 74, 76, 77— Question as to limits 
inter se of constitutional powers of Common- 
wealth and State, what is — Question raised 
by defence whether State tax on federal 
salary an, interference with powers of Com- 
monwealth — Exercise of federal jurisdiction 
by Court of Petty Sessions — Appeal to 
High Court, competency of — Judiciary Act 
1903 (No. 6 Of 1903), sec. 39.]— In pro- 
ceedings in a Court of Petty Sessions to 
recover income tax from a federal officer in 
respect of his official salary, the defendant 
claimed to be exempt on the ground that 
taxation of his official salary by the State 
was an interference with the free exercise of 
the powers of the Commonwealth within 
the meaning of the rule in D' Emden v. 
Pedder, 1 C.L.R., 91; 10 A.L.R. (C.N.), 
30, and therefore impliedly prohibited by 
the Constitution. The Court of Petty Ses- 
sions, following Webb v. Outtrim, (1907) 
A.C., 81, made an order for the amount 
claimed against the defendant, who there- 
upon appealed to the High Court. Held, 
that the question raised by the defence was 
a, question as to the limits inter se of the Con- 
stitutional powers of the Commonwealth and 



a State within the meaning of sec. 74 of the 
Constitution, that the Court of Petty Ses- 
sions was exercising federal jurisdiction 
under sec. 39 of the Judiciary Act 1903, 
and that the appeal was competent by virtue 
of sub-sec. (2) (6) of that section as well 
as by section 73 of the Constitution. Baxter 
v. Commissioners of Taxation ; Flint v. 
Webb, 4 C.L.R., 1087, 1178 ; 13 A.L.R., 313. 
H.C. Griffith, C.J., Barton, O'Connor and 
Isaacs, J J. (1907). 

Federal Jurisdiction — Exercise of, what is 
— Two questions decided, one federal and the 
other not — Each decision sufficient to sustain 
judgment — Court of Petty Sessions — Appeal 
to High Court, whether it lies — Judiciary Act 
1903 (No. 6), sec. 39 (2) (d)— Commonwealth 
of Australia Constitution Act (63 & 64 Vict, 
c. 12), The Constitution, sec. 77.] — A Court 
of Petty Sessions exercises federal jurisdic- 
tion within the meaning of sec. 39 (2) {d) of 
the Judiciary Act 1903, if it be necessary 
in the particular case for the Court to decide 
any question arising under the Constitution 
or involving its interpretation. If, however, 
whether that question is answered rightly 
or wrongly, the Court answers another ques- 
tion not arising under the Constitution or 
involving its interpretation, and the Court's 
answer to such other question enables it 
to decide the case, the Court does not exercise 
federal jurisdiction, and therefore no appeal 
lies to the High Court. Miller v. Haweis, 
(1907) 5 C.L.R. 89; 13 A.L.R., 583. H.C. 
Griffith, C.J., Barton, O'Connor, Isaacs and 
, J J. 



Court of Petty Sessions — Federal jurisdic- 
tion — Exercise of, what is — Commonwealth of 
Australia Constitution, sees. 31, 76 — Con- 
stitution Act Amendment Act 1890 (No. 1075), 
sec. 282— Judiciary Act 1903 (No. 6), sec. 39 
(2) (d) — Question decided involving interpre- 
tation of sec. 31 of Constitution — Other 
question decided involving interpretation of 
Commonwealth Electoral Act 1902 (No. 19 of 
1902)— Appeal to High Court, whether it lies.] 
— On a complaint for work and labour done at 
an election for the House of Representatives 
of the Commonwealth Parliament, the defence 
being that sec. 282 of the Constitution Act 



21 



APPEAL. 



22 



Amendment Act 1890 was a bar to the com- 
plaint, the Court of Petty Sessions held that 
sec. 282 was a " law relating to elections " 
and by virtue of sec. 31 of the Common- 
wealth Constitution applied to elections for 
the House of Representatives until Parlia- 
ment otherwise provided, but also held 
that Parliament had otherwise provided by 
passing the Commonwealth Electoral Act 
1902 and had thereby repealed sec. 282, 
and the Court therefore gave judgment for 
the complainant. Held, that in determining 
the second point the Court of Petty Sessions 
had not exercised federal jurisdiction, and 
therefore that no appeal lay to the High 
Court from the judgment of the Court of 
Petty Sessions. Miller v. Haweis, (1907) 5 
C.L.R., 89 ; 13 A.L.R., 583. H.C. Griffith, 
G.J., Barton, O'Connor, Isaacs and Higyins, 
JJ. 

Appeal from Court of Petty Sessions exer- 
cising federal jurisdiction — Order to review — 
No appeal under State law — Rules of High 
Court 1911, Part II., Sec. IV., r. 1— Justices 
Act 1904 (No. 1959), sec. 21.]— An appeal 
to the High Court from a decision of a Court 
of Petty Sessions exercising federal jurisdic- 
tion in the case of a, civil debt recoverable 
summarily when the sum involved does not 
exceed £5 may under the Rules of the High 
Court, Part II., Sec. IV., r. 1, be brought by 
way of order to review notwithstanding that 
by section 21 of the Justices Act 1904 in 
such a case the granting of an order to review 
is prohibited. Prentice v. Amalgamated Min- 
ing Employees Association of Victoria and 
Tasmania, (1912) 15 C.L.R., 235 ; 18 A.L.R., 
343. H.C. Griffith, C.J., Barton and Isaacs, 
JJ. 

D. FROM THE COURTS OF THE STATE. 

1. Where Appeal Lies. 

(a) Jurisdiction Generally. 

Appeal — High Court — Jurisdiction to hear 
appeal from single Judge.]T-The High Court 
has jurisdiction to entertain an appeal from 
a single Judge of the State Supreme Court 
whether sitting in Chambers or in Court. 
Blake v. Bayne, (1908) A.C., 371, at p. 374. 
(Privy Council). 



Appeal to High Court — Chambers, order of 
Judge of Supreme Court in — Whether appeal 
lies from.] — An appeal lies to the High Court 
from an order in Chambers of » Judge of 
the Supreme Court staying proceedings in 
a cause remitted to the Supreme Court for 
the execution of the judgment of the High 
Court pronounced on appeal from the Su- 
preme Court. Peacock v. Osborne, (1907) 4 
C.L.R., 1564 ; 13 A.L.R., 565. H.C. Griffiths, 
C.J., Barton, O'Connor, Isaacs and Higgins, 
JJ. 

Appeal — Order on habeas corpus — Jurisdic- 
tion of High Court.]— The High Court has 
jurisdiction to entertain an appeal from the 
Supreme Court in a case of habeas corpus. 
Attorney- General for the Commonwealth v. 
Ah Sheung, (1907) 4 C.L.R., 949. H.C. 
Griffith, C.J., Barton and 0'Connor,JJ. 

Trade Marks Act 1905 (No. 20 of 1905), 
sees. 6, 14— Trade Marks Act 1890 (No. 2), 
(No. 1183), sec. 13 — Application for registra- 
tion pending at passing of Federal Act — Trans- 
fer of administration — Appeal to Federal 
Attorney-General — Reference of Appeal to 
Supreme Court by Federal Attorney-General 
— Appeal from Supreme Court, jurisdiction 
to hear — Whether Supreme Court exercised 
administrative jurisdiction only.] — An appli- 
cation for the registration of a trade mark 
was pending at the time the Trade Marks Act 
1905 (Commonwealth) came into operation 
and pursuant to sec. 6 of that Act and sec. 13 
of the Trade Marks Act 1890 (No. 2) an 
appeal from the Commonwealth Registrar 
of Trade Marks to the Attorney-General of 
the' Commonwealth was by him referred to 
the Supreme Court. Held, that the refer- 
ence to the Supreme Court was authorized 
and that an appeal lay from a decision of 
that Court to the High Court. Lever Bros, 
v. G. Mowling <fc Son, (1908) 6 C.L.R., 136 ; 
14 A.L.R., 296. H.C. Griffith, C.J., Barton, 
Isaacs and Higgins, J J. 

Appeal — Costs — Order directing trustee to 
pay costs — Supreme Court Act 1890 (No. 1142), 
sec. 60.] — An appeal lies from an order 
directing a trustee to pay costs in an action 
for administration, because it is a settled 



23 



APPEAL. 



24 



rule that such an order cannot be made 
unless the occasion of the suit has arisen from 
something in the nature of the trustee's 
own misconduct. It is also settled that 
the question, whether a trustee has been 
guilty of such misconduct as to justify the 
Court in ordering him to pay costs, is appeal- 
able. Amos v. Fraser, 4 C.L.R., Pt. I., 
78 ; 12 A.L.R., 481. H.C. Griffith, C.J., 
Barton and O'Connor, J J. (1906). 

Practice — Appeal to High Court — Special 
leave — Decision of inferior Court of State — 
Right of appeal to Supreme Court — Judiciary 
Act 1903 (No. 6 of 1903), sec. 35— The Con- 
stitution (63 & 64 Vict. c. 12), sec. 73.]— 
Special leave to appeal to the High Court 
from a decision of the Court of Mines refused 
on the ground that there was a right of 
appeal to the Supreme Court. The question 
whether the High Court has jurisdiction 
under sec. 73 of the Constitution to entertain 
an appeal direct from such a decision should 
not be raised in a case in which there is an 
appeal to another Court. Kamarooka Gold 
Mining Co. v. Kerr, (1908) 6 C.L.R., 255. 
H.C. Griffith, G.J., Barton, Isaacs and 
Higgins, J J. 

High Court, jurisdiction of — Case remitted 
to Supreme Court on appeal to High Court — 
Accounts and inquiries directed by High 
Court — Determination of questions arising 
on taking of accounts.] — On appeal from the 
Supreme Court the High Court with a declar- 
ation of rights and an order for accounts and 
inquiries. Held, that the High Court had 
no jurisdiction to determine questions arising 
on the taking of the accounts by the Chief 
Clerk of the Supreme Court as to the extent 
of the accounts and inquiries actually directed. 
Cock v. Smith, (1910) 12 C.L.R., 11 ; 17 
A.L.R., 467. Griffith, C.J. 

(b) Appealable Amount. 

Judiciary Act 1903 (No. 6 of 1903), sec. 
35 — Appeal from Supreme Court of State 
— Appealable Amount — Amount at issue, 
how to be determined.] — In order to deter- 
mine the amount at issue for purposes of 
appeal, the judgment is to be looked at as 
it affects the interests of the party prejudiced 



by it, and who seeks to relieve himself 
from it by appeal. Jenkins v. Lanfranchi, 
10 C.L.R., 595 ; 16 A.L.R., 275. H.C, 
Griffith, C.J., O'Connor, Isaacs and Higgins, 
JJ. (1910). 

Appeal to High Court — Appealable amount 
—Judiciary Act 1903 (No. 6 of 1903), sec. 35 
(1), (a) (2) — Judgment involving claim respect- 
ing to property amounting to or of the value 
of three hundred pounds.] — A remainderman 
sued trustees, in form, for administration, 
but in substance for a declaration that the 
defendants were bound to keep farm buildings 
and fences in repair during the life of the 
tenant for life. Madden, C.J. made the 
declaration sought, but the Full Court re- 
versed his judgment. Held, that an appeal 
lay to the High Court as of right. Amos v. 
Fraser, 4 C.L.R., Pt. I., 78 ; 12 A.L.R., 
481. H.C. Griffith, C.J., Barton and O'Con- 
nor, JJ. (1906). 

Appeal to High Court — Appealable amount 
— Order nisi for probate — Interest of Caveator 
less than £300— Judiciary Act 1903 (No. 6 
of 1903), sec. 35.] — On a rule nisi for probate 
of a will in respect of property amounting 
in value to over £1,000 it appeared that the 
interest of the caveator, one of three sons 
of testatrix, none of whom took any benefit 
under the will, would on an intestacy have 
amounted to less than £300. The Supreme 
Court had decided in favour of the validity 
of the will. Held, that, under sec. 35 (1) 
of the Judiciary Act 1903, the judgment was 
one for or in respect of a matter at issue of 
the value of over £300, and that an appeal 
by the caveator to the High Court would be 
without special leave. Tipper v. Moon, 
(1911) 13 C.L.R*, 248; 18 A.L.R., 341. 
H.C. Griffith, C.J., Barton and 0' Connor, JJ. 

(c) Special Leave. 

Breach of Statute charged— No serious 
wrong committed — Dismissal of charge- 
Special leave to appeal, Grant of in terms.]— 

Where a man is said to have committed a 
technical breach of » Statute, but has done 
nothing seriously wrong, and it is sought to 
punish him for it, special leave to appeal 
from a dismissal of the charge against him 



25 



APPEAL. 



26 



is not granted without imposing terms. 
Pemberton v. Banfield, (1912) 15 C.L.R., 323 ; 
18 A.L.R., 486. H.O., Griffith, C.J., Barton 
and Isaacs, JJ. 

Appeal from Supreme Court — Special leave 
— Time for appealing expired — Conditional 
leave.] — An order was made by the Supreme 
Court on an originating summons determin- 
ing that the daughters of a settlor, to the 
exclusion of his sons, were entitled to an 
uncertain portion of a trust fund. The 
sons did not within the time limited for 
appealing, appeal either to the State Full 
Court or to the High Court, and until that 
time had expired they believed that the 
portion of the trust fund affected by the 
order would not exceed a certain sum. A 
claim was then made by the daughters 
that the order affected a much larger sum. 
On application by the sons for special leave 
to appeal. Held, that special leave should 
be granted, on the undertaking by the appel- 
lants that, in the event of the appeal being 
allowed, they should not claim » refund of 
moneys paid by the trustees on the faith of 
the order not having been appealed from 
within time, and to indemnify the trustees 
against any such payments, a' Beckett v. 
Backhouse, (1907) 4 C.L.B., 1334. Griffith, 
C.J., 0' Connor, Isaacs and Higgins, J J. 

High Court Practice — Criminal Case — 
Special leave to appeal — Evidence — Dying 
declaration.] — Principle laid down by Privy 
Council in In re Dillet, 12 App. Cas., 459, 
at p. 467, as to granting special leave to 
appeal in criminal cases applied ( Isaacs, J. , 
dissentiente). Hope v. The King, (1909) 
9 C.L.R., 257. Griffith, G.J., Isaacs and 
Higgins, JJ. (High Court). 

Practice— Appeal to High Court from Su- 
preme Court— Special leave— Stay by Supreme 
Court of proceedings under judgment— Con- 
ditions — Order LVHL, r. 16.] — It is only in 
very exceptional circumstances that the 
High Court will grant special leave to appeal 
from an order made by a Judge of the Supreme 
Court in the exercise of his discretion staying 
proceedings under a judgemnt of the Supreme 
Court subject to conditions. Howard Smith 



& Co. Ltd. v. Varawa, (1910) 10 C.L.R., 
607. H.C. Griffith, C.J., O'Connor, Isaacs 
and Higgins, JJ. 

Leave to appeal to High Court — Applicant 
in prison — Appearance in person — Whether 
High Court has jurisdiction to order that it be 
allowed.] — Where a person is detained in 
the State gaol under a sentence of the State 
Court, the High Court has no jurisiction to 
order him to be allowed to come before the 
High Court in order that he may personally 
apply for leave to appeal from a judgment of 
the Court of the State. Horwitz v. Connor,. 
(1908) 6 C.L.R., 38 ; 14 A.L.R., 342. H.C, 

Griffith, C.J., Barton, O'Connor, Isaacs and 

Higgins, JJ. 

2. Practice. 

(a) Notice : Parties. 

Practice — Appeal from Supreme Court of 
State — Extension of time for giving notice — 
Rules of the High Court 1903, Part I., Order 
XLV., r. 6 ; Part H., Sec. 1, r. 4, Sec. 3, r. 4.]— 
Semble, Part I., Order XLV., r. 6 {Rules of 
the High Court 1903) does not apply to an 
appeal from the Supreme Court of the State,. 
and the High Court has no jurisdiction to 
extend the time for giving notice of such an 
appeal. Lever Bros. Ltd. v. G. Mowling & 
Son, (1908) 5 C.L.R., 510 ; 14 A.L.R., 73. 
Griffith, C.J. 

High Court Practice — Appeal to High Court 
— Cross appeal — Rules of the High Court 1903, 
Part II., Sec. HI., Rule 13.] — Where in one 
action two distinct causes of action are 
sued upon, and one judgment is given for 
the plaintiff as to one cause of action and for 
the defendant as to the other, the fact that 
special leave to appeal to the High Court 
in respect of one of the causes of action is 
given to one of the parties does not entitle 
the other party to give a cross notice of appeal 
under Rules of the High Court 1903, Part II.,. 
Sec. III., Rule 13 in respect of the other 
cause of action. Wilson v. Moss, 8 C.L.R.,. 
146; 15 A.L.R., 131. H.C. Griffith, C.J.,. 
Barton, O'Connor and Isaacs, J J. (1909). 

Practice — Joinder of parties — Administra- 
tion action — Trustee sued as representative — 



27 



APPEAL. 



Refusal of trustee to appeal — Judgment not 
yet drawn up — Joinder of cestuis que trustent — 
Order XVI., r. 8 (Rules of 1906).]— Where a 

trustee is sued as a representative of his 
cestui que trustent, and a judgment adverse to 
them is given from which the trustee refuses 
to appeal, the cestui que trustent before the 
judgment is drawn up are entitled ex debito 
justitial to be added as parties so that they 
may appeal. Connolly v. Macartney, (1908) 
7 C.L.R., 48; 14 A.L.R., 558. H.C., 
Griffith, C.J., Barton, 0' Connor and Isaacs, 
JJ. 

(b) Pendency of Appeal, Effect of ; Stay of 
Execution of Judgment appealed from ; 
Bail, etc. 

Practice — Money paid into Court under 
Order XIV., r. 6 — Defendant successful at 
trial — Order for payment out of money to 
defendant — Appeal to High Court — " Execu- 
tion of the judgment appealed from" — Stay 
of execution — High Court Appeal Rules 1903, 
Sec. ni., r. 19.] — The defendant obtained 
leave to defend under Order XIV., r. 6 upon 
payment into Court of £500. Subsequently 
on 17th October 1906 judgment in the action 
was given for the defendant, and an order 
was made that he be at liberty after the 
expiration of fourteen days to take out of 
Court the said sum of £500. On the 29th 
October 1906 the plaintiff duly instituted an 
appeal against the judgment to the High 
Court. Held, that the order for payment 
out of the money was not "execution of the 
judgment appealed from " within the mean- 
ing of Rule 19 of Sec. III. of the High Court 
Appeal Rules 1903, and that in any case the 
due institution of the appeal against the 
judgment did not operate as a stay of such 
order. Christie v. Robinson, (1907) V.L.R., 
118. Hodges, J. 

Fugitive Offenders Act 1881 44 & 45 Vict, 
c. 69), sees. 5, 6 — Fugitive committed to 
prison to await return — Legality of detention 
affirmed by Supreme Court — Appeal to High 
Court — Bail.] — See Fugitive Offenders. Re 
McKelvey, (1906) V.L.R., 304 ; 12 A.L.R.,209. 

Insolvency — Order nisi for sequestration 
based on judgment for costs of prior action 



— Appeal before High Court from prior judg- 
ment — Adjournment of insolvency proceed- 
ings.] — See Insolvency. Bayne v. Baillieu 
or Blake, (1907) 5 C.L.R., 64 ; 13 A.L.R., 503. 

Application to annul sequestration — Seques- 
tration based on judgment for costs ordered 
to be paid in prior action — Judgment in prior 
action set aside on appeal — Judgment for 
costs in subsequent action still standing.)— 
See Insolvency. Bayne v. Baillieu or 
Blake, (1907) 5 C.L.R., 64 ; 13 A.L.R., 503. 

(c) Matters which may be Considered ; 
Further Evidence ; New Trial. 

Appeal from Supreme Court — Admission of 
further evidence — Jurisdiction of High Court 
— Verdict obtained on perjured evidence.]— 
On an appeal from the Supreme Court of a 
State, the High Court has no jurisdiction 
to receive further evidence. Held, there- 
fore, that leave to read affidavits for the 
purpose of showing that the evidence on 
which an original judgment in the Supreme 
Court of Victoria had been obtained was 
perjured should be refused. Ronald v. 
Harper, (1910) 11 C.L.R., 63; 16 A.L.T., 
415. H.C. Griffith, C.J., Barton and O'Con- 
nor, JJ. 

Appeal — Point not raised in Court below 
— Whether party bound by course deliber- 
ately adopted at trial.] — Where the conduct 
of a party at the trial has been such that 
certain questions have been left to the 
jury and have been determined, he cannot 
on appeal raise totally different questions 
even though upon the pleadings and the 
evidence they might have been open to him. 
Varawa v. Howard Smith Co. Ltd., (1911) 
13 C.L.R., 35 ; 17 A.L.R., 499. H.C. Griffith, 
C.J., O'Connor and Isaacs, JJ. 

Appeal — Pleadings — Amendment to raise 
new case.] — The High Court refused to allow 
an amendment of the pleadings to raise a new 
ease. Trengrove & Co. v. Story, (1908) 6 
C.L.R., 10 ; 14 A.L.R., 420. H.C, Griffith, 
C.J., O'Connor and Higgins, J J. 

Appeal — Exercise of discretion as to costs— 
Whether High Court will interfere where 
there is no other foundation for appeal.]— 



29 



APPEAL. 



30 



It would require a case of very extreme 
circumstances to justify the High Court in 
reviewing the discretion of the Supreme Court 
on a question of costs, where there is no 
other foundation for the appeal. Jenkins 
v. Lanfranchi, 10 C.L.R., 595 ; 16 A.L.R., 
275. H.C. Griffith, C.J., O'Connor, Isaacs 
and Higgins, J J. (1910). 

New trial — Trial by jury — Observations 
made by Judge in summing up — Whether 
directions to the jury.] — Whether observa- 
tions made by the Judge in the course of his 
summing up are directions to the jury is a, 
question of fact depending on all the circum- 
stances of the case. Ronald v. Harper, 
(1910) 11 C.L.R., 63 ; 16 A.L.R., 415. H.C. 
Griffith, C.J., Barton and O'Connor, J J. 

New trial — Several issues — Wrong finding 
by jury on one issue.] — A wrong finding 
by a jury on one issue does not necessarily 
vitiate their findings on other issues. Ronald 
v. Harper, (1910) 11 C.L.R., 63; 16 A.L.R., 
415. H.C. Griffith, C.J., Barton and 0' Con- 
nor, J J. 

County Court — New trial — Notice of appli- 
cation served out of time — Refusal of Judge 
to enlarge time — Jurisdiction of Court of 
Appeal to enlarge — Misdirection — No objection 
taken at trial — Jurisdiction of Judge to grant 
new trial— Refusal of Judge to grant new 
trial— Whether High Court will grant new 
trial — Infinitesimal hope of success if new 
trial granted— County Court Act 1890 (No. 
1078), sec. 96 — County Court Rules, 188, 
424.] — Assuming that the High Court and 
the Supreme Court have jurisdiction to review 
the exercise by a Judge of County Courts 
of the discretion given him by rule 424 of 
the;? County Court Rules 1891 to enlarge the 
time'Jfor serving notice of an application 
for a new trial, and that a Judge of County 
Courts has jurisdiction under sec. 96 of the 
County Court Act 1890 to grant a new trial 
on the ground of misdirection in law where 
objection has not been taken at the trial 
to the misdirection (as to both of which 
questions, quaere), the High Court will not 
grant a new trial where the Judge of County 
Courts has refused it and the party asking 



for it would, in the opinion of the Court, 
only have a problematical and infinitesimal 
hope of success if a new trial were had. 
Holford v. Melbourne Tramway and Omnibus 
Co. Ltd., (1909) V.L.R., 497 ; 29 A.L.T., 
112 ; 13 A.L.R., at p. 677, doubted ; Handley 
v. London, Edinburgh and Glasgow Assur- 
ance Co., (1902) 1 K.B., 350, commented on. 
Armstrong v. Great Southern Gold Mining 
Co. No Liability, (1911) 12 C.L.R., 382 ; 
17 A.L.R., 377. H.C. Griffith, C.J., Barton 
and O' Connor, J J. 

Criminal Law — New trial, when to be 
granted after quashing of conviction — Cir- 
cumstances to be considered in exercise of 
discretion — Failure to warn jury against 
convicting on uncorrobotated evidence of 
accomplice — Evidence improperly admitted 
and afterwards withdrawn from jury — Crimes 
Act 1890 (No. 1079), sec. 482.]— -See Criminal 
Law. Peacock v. The King, (1911) 13 C.L.R., 
619; 17 A.L.R., 566. 

(d) Execution of Judgment of High Court. 

Judgment of High Court on appeal from 
Supreme Court — Duty of Supreme Court to 
execute— Judiciary Act 1903 (No. 6 of 1903), 
sec. 37, whether ultra vires — The Constitu- 
tion, sec. 51 (xxxix.) — Commonwealth of 
Australia Constitution Act (63 & 64 Vict. c. 
12), sec. v.] — Sec. 37 of the Judiciary Act 
1903 in so far as it authorizes the High Court 
in the exercise of its appellate jurisdiction 
to remit a. cause to the Supreme Court for 
the execution of the judgment of the High 
Court, and imposes upon the Supreme Court 
the duty of executing the judgment of the 
High Court in the same manner as .if that 
judgment were the judgment of the Supreme 
Court is a valid exercise by Parliament of 
the power conferred by sec. 51 (xxxix.) of 
the Constitution. Bayne v. Blake, 5 C.L.R., 
497; 14 A.L.R., 103. H.C. Griffith, C.J., 
Barton and O'Connor, J J. (1908). 

Judiciary Act 1903 (No. 6), sec. 37— Appeal 
to High Court from Supreme Court — Cause 
remitted to Supreme Court for execution of 
judgment of High Court — Duty of Supreme 
Court — Staying proceedings.] — When the High 
Court on the hearing of an appeal from the 



31 



APPEAL. 



32 



Supreme Court has remitted the case to the 
Supreme Court for the execution of the 
judgment of the High Court pursuant to 
sec. 37 of the Judiciary Act 1903 the Supreme 
Court is authorized to make any order for 
the purpose of executing the judgment of 
the High Court but not to make an order 
which has the effect of preventing or obstruct- 
ing the execution of that order. Where, 
therefore, a cause was remitted to the Supreme 
Court for an inquiry as to damages an order 
by the Supreme Court staying proceedings 
as to the inquiry was on appeal to the High 
Court discharged. Peacock v. Osborne, (1907) 
4 C.L.R., 1564; 13 A:L.R., 565. H.C. 
Griffith, C.J., Barton, O'Connor, Isaacs and 
Higgins, J J. 

Judgment of High Court on appeal from 
Supreme Court — Judgment remitted to Su- 
preme Court for execution — Officer of Supreme 
Court — Whether subject to control of High 
Court.] — The High Court may directly order 
an officer of the Supreme Court to obey a 
judgment of the High Court. Bayne v. 
Blake, (1908) 5 C.L.B., 497 ; 14 A.L.R., 103. 
H.C. Griffith, C.J., Barton and O'Connor, J J. 

Judgment of High Court on appeal from 
Supreme Court — Judgment remitted to Su- 
preme Court — Stay of proceedings, jurisdic- 
tion of Supreme Court to order.] — On an 
appeal from the Supreme Court to the High 
Court, the High Court, in allowing the 
appeal ordered the judgment appealed from 
to be discharged, and that in lieu thereof 
there should be substituted a declaration 
that the plaintiffs were entitled to recover a, 
sum to be thereafter ascertained, and further 
ordered that the cause " be remitted to the 
Supreme Court to do therein what is right 
in pursuance of the judgment." Leave to 
appeal to the Privy Council from the judg- 
ment of the High Court having been obtained 
by the defendants, and a stay of proceedings 
having been granted by the High Court and 
subsequently renewed, an application to the 
Supreme Court to proceed with the inquiry 
directed by the High Court was made by 
the plaintiff. Held, that an order made by 
the Supreme Court, that the matter should 
be deferred until the decision of the Privy 



Council should be made known, was a stay 
of proceedings, and therefore was an order 
which the Supreme Court had no authority 
to make. Peacock v. D. M. Osborne & Co., 
4 C.L.R., 1564; 13 A.L.R., 565., applied. 
Bayne v. Blake, (1908) 5 C.L.R., 497 ; 14 
A.L.R., 103. H.C. Griffith, C.J., Barton and 
0' Connor, J J. 



Appeal — Dismissal on the ground that it is 
incompetent — No notice of objection before 
hearing — Costs.] — Where an appeal is dis 
missed on the ground that it is incompetent 
the respondent if he has not given the appel 
lant notice of such ground before the hearing, 
may not be allowed costs. Jenkins v. Lan 
franchi, 10 C.L.R., 595 ; 16 A.L.R., 275 
H.C. Griffith, C.J., O'Connor, Isaacs and 
Higgins, JJ. (1910). 

(e) Costs. 

Costs — Trustees — Unsuccessful appeal.] — 

The costs of trustees, unsuccessful appellants, 
were in the special circumstances allowed 
out of the estate. In re Rosenthal ; Rosen- 
thal v. Rosenthal, (1910) 11 C.L.R., 87 ; 16 
A.L.R., 455. H.C. Griffith, C.J. and Isaacs, 
J. (Higgins, J., dissenting). 

Costs — Appeal in administration action- 
Costs of trustee — Whether trustee entitled to 
be indemnified out of the estate.] — Trustees 
who have been guilty of breaches of trust in 
respect of which an order has been made 
in an administration action by a. Court of 
first instance, but who, in respect of the 
matters in question upon an appeal from 
that order, are blameless, are entitled to be 
indemnified out of the estatfc for their costs 
of such appeal. Nissen v. Grunden, (1912) 
14 C.L.R., 297 ; 18 A.L.R., 254. H.C. 
Griffith, C.J., Barton and Isaacs, JJ. 

Costs — Taxation — Appeal from Court of 
Petty Sessions to High Courts— Order to review 
—Limitation of amount of costs — Justices Act 
1890 (No. 1105), sec. 148— Rules of the High 
Court 1903, Part I., Order XL VI., r. 14; 
Part II., sec. IV., r. 1 ; Rules of the High 
Court of 12th October, 1903, r. 3.]— Order 
XLVI., r. 14 of Part I. of the Rules of the 
High Court 1903, which prescribes the scale 



33 



APPEAL. 



34 



for taxation of costs does not refer to any 
maximum amount of costs to be allowed, 
and, therefore, the provision in sec. 148 of 
the Justices Act 1890, which limits the total 
amount of costs that can be allowed in the 
Supreme Court upon an order to review 
a decision of a Court of Petty Sessions to £20, 
does not apply to the costs of an appeal 
by way of order to review from a Court of 
Petty Sessions exercising Federal jurisdiction 
to the High Court. Lyons v. Smart, (1908) 
6 C.L.R., 285; 14 A.L.R., 619. H.C., 
Griffith, G.J., Barton, O'Connor, Isaacs and 
Higgins, J J. 

Order XLVL, r. 13 (High Court)— Costs- 
Proceedings of an unnecessarily expensive 
character — " Taking proceedings " meaning 
of — Printing or type-writing documents and 
evidence.] — Preparing type -written or printed 
copies of documents or evidence for an appeal 
is not taking a proceeding within the meaning 
of Order XLVI., r. 13. Peacock v. Osborne 
& Co., 13 A.L.R., 254. Barton, J. (1907). 

High Court — Appeal Rules, Section IV., 
r. 16 — Costs — Printing evidence for purpose of 
appeal — " Printing," whether it includes type- 
writing.] — Type-writing is not " printing " 
within the meaning of Section IV., r. 16 of 
the Appeal Rules under the High Court Pro- 
cedure Act. Peacock v. Osborne & Co., 
13 A.L.R., 254. Barton, J. (1907). 

III. To the Supreme Coubt of the State. 

A. JTTRISDICTION. 

Patent, application for — Opposition — State 
Patents Act — Transfer of administration to 
Commonwealth pending proceedings — Appeal 
to State Supreme Court — Jurisdiction — Patents 
Act 1890 (No. 1133), sec. 33— Patents Act 
1903 (No. 21 of 1903).]— At the date of 
the proclamation by the Governor-General 
under sec. 18 of the Federal Patents Act 
1903 transferring the administration of the 
State Patents Act 1890 to the Commonwealth, 
the hearing of an opposed application for a 
patent was pending before the Commissioner 
of Patents. After that date the hearing 
was continued and concluded by the same 
officer acting as a Deputy Commissioner of 
Patents appointed under the Patents Act 



1903, and he refused the application. The 
applicant then appealed to the Crown Solici- 
tor of the Commonwealth as a, Federal Law 
Officer, and he granted the patent. From 
that decision the opponent appealed to the 
Supreme Court of Victoria under sec. 33 
of the Patents Act 1890. Held, that the 
State Patents Act having ceased to be admin- 
istered by the State by reason of sec. 19 (a) 
of the Patents Act 1903, the Supreme Court 
had no jurisdiction to entertain the appeal. 
In re McLeod's Patent ; Burton v. McLeod, 
(1906) V.L.R., 483 ; 12 A.L.R., 335. a' Bec- 
kett, J. (1906). 

Appeal — Reference — Reference as to law 
applicable on findings of fact — Right of appeal 
notwithstanding reference.] — Where on the 
trial of an action the primary Judge finds the 
facts and refers the question of the law applic- 
able to the facts so found to the Full Court, 
the reference does not affect the right of a 
party to appeal against the findings of fact. 
Glass v. Pioneer Rubber Works of Australia 
Ltd., (1906) V.L.R., 754; 28 A.L.T., 64; 12 
A.L.R., 529. F.C. a' Beckett, A.C.J. , Hodges 
and Chomley, J J. 

Appeal — County Court — Action struck out 
for want of jurisdiction — Jurisdiction to deal 
with defendant's application for costs declined 
by Judge — Whether appeal lies — County Court 
Act 1890 (No. 1078), sec. 133.]— An action 
having been brought in a County Court 
which the Court had no jurisdiction to try 
the Judge ordered the case to be struck out 
and refused to consider the defendant's 
application for costs on the ground that he 
had no jurisdiction to do so, Held, that an 
appeal lay from such refusal. The King v. 
Beecham ; Ex parte Cameron, (1910) V.L.R., 
204 ; 31 A.L.T., 183 ; 16 A.L.R., 173. F.C. 
Madden, C.J. and a* Beckett, J. (Cussen, J., 
doubting). 

Appeal — Judgment of Supreme Court — 
Notice of appeal to High Court — Subsequent 
notice of appeal to Full Court— Jurisdiction 
—High Court Procedure Rules 1903, Part H., 
Section IV., r. 19.] — The pendency of an 
appeal to the High Court does not deprive 
the State Full Court of jurisdiction to hear 

2 



35 



APPEAL. 



36 



an appeal to it in respect of the same matter. 
O'Sullwan v. Morton, (1911) V.L.R., 235; 
32 A.L.T., 172 ; 17 A.L.R., 140. F.C. Madden, 
C.J., Hodges and Hood, J J. (1911). 

County Court Act 1890 (No. 1078), sec. 
133— County Court Rules 1891, rr. 378, 379— 
Practice — Appeal — Case settled by Judge — 
Transmission to Supreme Court — Enlargement 
of time — Failure of Judge to indorse — Effect 
of.] — The indorsement of enlargement of the 
time for transmitting a case on appeal from 
an order of the County Court to the Supreme 
Court, directed by rule 379 to be made by 
the Judge in cases falling within the rule, 
is not a condition of the jurisdiction of the 
Supreme Court to hear the appeal ; and 
failure on the part of the Judge to make 
such indorsement will not prevent the Supreme 
Court from hearing the appeal if, in fact, 
the case is transmitted within fourteen days 
from the day on which the Judge shall have 
returned the case settled and signed by him 
to the appellant. Ryan v. Muir & Co., 
(1912) V.L.R., 411 ; 34 A.L.T., 64 ; 18 A.L.R., 
396. F.C. Madden, G.J., Hood and Cussen, 
JJ. (1912). 

Supreme Court Act 1890 (No. 1142), sec. 
37 — " Civil or mixed matter " — Appeal from 
mandamus.] — A proceeding by mandamus 
granted on the application of a private person 
ordering the Treasurer to comply with the 
mandatory provisions of a public Statute 
imposing a duty upon him is a " civil or mixed 
matter " within the meaning of sec. 37 of 
the Supreme Court Act 1890 although the 
refusal to so comply may be an indictable 
misdemeanour. There may therefore be an 
appeal to the Full Court from the order of a 
Judge granting such a mandamus. The 
King v. Watt ; Ex parte Slade, (1912) V.L.R., 
225 ; 33 A.L.T., 222 ; 18 A.L.T., 158. F.C. 
Madden, C.J., Hodges and Cussen, J J. 

Crimes Act 1890 (No. 1079), sees. 481, 482 
—Crown cases reserved — Question of difficulty 
in point of law — Arising " on the trial," 
meaning of — Whether case may he stated 
after termination of sittings.] — If there was an 
existing point of law which arose on the 
materials at the trial, and which might 



have been taken, such point of law has 
arisen " on the trial " within the meaning 
of sec. 481 of the Crimes Act 1890, although 
at the trial no question was raised and the 
Judges attention was not directed to it, 
and the Court may, even after the completion 
of the sittings at which the trial took place, 
state a case under sec. 482 of the said Act. 
R. v. Fitzgerald, 15 V.L.R., 40 ; 10 A.L.T., 
241, and R. v. Brown, 24 Q.B.D., 357, fol- 
lowed. Rex v. Tumbull, (1907) V.L.R., 
11 ; 28 A.L.T., 103 ; 12 A.L.R., 551. Cussen, 
J. 

Mandamus — Remedy by appeal available 
— Discretion of Court, matters to be con- 
sidered in exercise of — Comparative advantage 
of applying one remedy rather than the other 
— County Court — Case struck out for want of 
jurisdiction — Jurisdiction to entertain defen- 
dant's application for costs declined by Judge.] 
— A Judge of County Courts, having ordered 
a case to be struck out for want of jurisdic- 
tion, refused to consider the defendant's 
application for costs on the ground that 
he had no jurisdiction to do so. Held, 
Per a' Beckett and Cussen, J J. (Madden, 
C.J., dissenting), that notwithstanding the 
existence of the remedy by appeal, the Court 
should exercise its discretion in favour of 
granting a writ of mandamus ordering the 
Judge to consider the question of costs, as 
in all the circumstances that remedy was 
more appropriate, less expensive, and more 
desirable from a judicial point of view than 
the remedy by appeal. The King v. Beecham, 
Ex parte Cameron, (1910) V.L.R., 204; 31 
A.L.T., 183 ; 16 A.L.R., 173. 

B. PRACTICE. 

1. Notice ; Setting Down of Appeal. 

Order LVm., r. 6— Appeal to Full Court 
— Cross appeal, notice of — Practice.] — Semble, 
where a judgment deals with two causes of 
action, and an appeal in respect to one only 
of such causes of action is brought, the respon- ■ 
dent cannot raise an appeal in respect of 
the other cause of action without having 
given notice. Prebble v. Reeves, (1910) 
V.L.R., 88; 31 A.L.T., 114; 15 A.L.R., 631. 
F.C. Madden, C.J., Hood and Cussen, JJ. 



37 



APPEAL. 



38 



Patent — Application for — Law Officer's de- 
cision—Appeal, setting down— Whether order 
by Judge necessary — Patents Act 1890 (No. 
1123), sec. 33.] — When notice has been given 
of an appeal to the Supreme Court from a 
decision of the Law Officer, under sec. 33 
of the Patents Act 1890, an order from a 
Judge is not necessary before the appeal 
can be set down by the Prothonotary in the 
list for hearing before a Judge. In re 
McLeod's Patent; Burton v. McLeod, (1906) 
V.L.R., 488; 12 A.L.R., 307. a' Beckett, 
A.C.J. 

2. Constitution of Bench ; Over-ruling 
Previous Decision. 

Practice — Over-ruling previous Full Court 
decision — Summoning Full Bench.] — The Full 
Court will not summon a Pull Bench to con- 
sider a previous decision of the Full Court 
unless it doubts the correctness of that 
decision. McKinnonv. Qange, (1910) V.L.R., 
32 ; 31 A.L.T., 112 ; 15 A.L.R., 640. Mad- 
den, C.J., Hood and Cussen, J J. 

3. The Hearing ; Bight to Begin ; 
Evidence to be Considered. 

Administration and Probate Act 1890 (No. 
1060), sec. 98 — Case stated — Right to begin.] 

— On a case stated by the Master-in -Equity 
under sec. 98 of the Administration and Pro- 
bate Act 1890 the Crown should begin. In 
re McCracken, 27 A.L.T., 233 ; 12 A.L.R., 
303. F.C. a' Beckett, A.C.J., Hodges and 
Hood, J J. (1906). 

Special case — Right to begin — Stamps Act 
1890 (No. 1140), sec. 71.]— Upon a special 
case stated under the Stamps Act 1890 the 
alleged tax-payer has the right to begin. 
Armytage v. Collector of Imposts, (1906) 
V.L.R., 504 ; 28 A.L.R., 9 ; 12 A.L.R., 305. 
F.C. a'Beckett, A.C.J. , Hodges and Hood, 
JJ. (1906). 

Criminal law — Practice — Crown case re- 
served — Right to begin — Crimes Act 1890 
(No. 1079), sec. 481.] — Upon the argument 
of points of law reserved upon a criminal 
trial at the instance of a prisoner, his counsel 
is entitled to begin. Rex v. Shvttleworth, 



(1909) V.L.R., 431 ; 31 A.L.T., 50 ; 15 A.L.R., 
492. F.C. Madden, C.J., a'Beckett, Hodges, 
Hood and Cussen, JJ. 

Certiorari to Judge of a County Court — 
Evidence — Conflict of evidence as to proceed- 
ings in County Court — Unsworn statement of 
Judge, whether admissible.] — See County 
Court. A.Macrow & Sons Proprietary Ltd. 
v. Macartney or McCartney, (1911) V.L.R., 
393 ; 33 A.L.T., 64 ; 17 A.L.R., 397. 

Order LVIII., r. 4 — Appeal — Fresh evidence 
— Discretion to receive.] — Semble, (per Hodges 
and Cussen, J J.) the rules laid down in 
Ward v. Hearne, (1884) 10 V.L.R. (L.), 
163 ; 6 A.L.T., 49, and Ashley v. Ashley, 
24 V.L.R., 220 ; 4 A.L.R., 154, though sound, 
and to be followed in most cases, may not 
apply in cases where the rights of others 
than the immediate parties are concerned, 
e.g. in cases of trustees, guardians of infants, 
committees of lunatics, and where the action 
of the person tendering the fresh evidence 
is really brought in the interests of the public 
at large. The King v. Watt ; Ex parte 
Slade, (1912) V.L.R., 225; 33 A.L.T., 222; 
18 A.L.R., 158. F.C. Madden, C.J., Hodges 
and Cussen, JJ. 

Order LVHI., r. 4 — Appeal from order 
granting mandamus — " Judgment after trial 
or hearing of cause or matter on the merits " 
— Discretion to receive further evidence.] — 

An appeal from an order granting a mandamus 
is not an appeal from " a judgment after 
trial or hearing of » cause or matter on the 
merits " within Order LVIII., r. 4 of the 
Rules of the Supreme Court 1906, and the 
Court has full discretion to receive further 
evidence. The King v. Watt ; Ex parte 
Slade, (1912) V.L.R., 225 ; 33 A.L.T., 222 ; 
18 A.L.R., 158. . F.C. Madden, C.J., Hodges 
and Cussen, J J. 

Appeal — Evidence, admissibility of — Appli- 
cation for new trial on ground of misconduct 
of juryman — Evidence as to such mis- 
conduct given before primary Judge — 
Affidavit as to such evidence.] — During the 
trial of an action by a Judge and jury one of 
the juryman was charged with misconduct 
in making a, certain statement to a clerk 



39 



APPEAL. 



40 



of the defendant's solicitor. After hearing 
the clerk's sworn testimony as to what had 
occurred and the denial of the juryman not 
on oath, the Judge accepted the denial of 
the juryman and directed the case to proceed 
On defendant's application to the State Full 
Court for a new trial, an affidavit was ten- 
dered setting out the evidence of their sol- 
icitor's clerk as given before the primary 
Judge. The Full Court ( Hood, J., dissenting) 
rejected the affidavit. On appeal to the High 
Court, Held,, per O'Connor J. — The affi- 
davit should have been admitted, but (per 
Isaacs, J.,) it was rightly rejected. David 
Syme & Go. v. Swinburne, 10 C.L.R., 43 ; 
16 A.L.R., 93 (1909). 

4. New Trial. 

Order XXXIX. (Rules of 1906), r. 6— New 
trial — Misdirection — Substantial wrong or mis- 
carriage.] — See Practice and Pleading. 
Holford and Wife v. Melbourne Tramway and 
Omnibus Co., (1909) V.L.R., 497 ; 29 A.L.T., 
112; 13 A.L.R., 667. 

Order XXXIX. (Rules o! 1906)— Supreme 
Court Act 1890 (No. 1142), sec. 58— New trial 
— Misdirection as to law — No objection taken 
at trial — Relevancy of evidence, misdirection 
as to.] — See Practice and Pleading. Hol- 
ford and Wife v. Melbourne Tramway and 
Omnibus Co., (1909) V.L.R., 497 ; 29 A.L.T., 
112; 13 A.L.R., 667. 

* County Court Act 1890 (No. 1078), sees. 96, 
133, 148— Order XXXIX., r. 7 (Rules of 1906) 
— County Court — New -trial — Whether issues 
to be tried may be limited — Full Court, 
power of on appeal.] — In the case of an action 
in a County Court involving the determina- 
tion of several issues the Full Court on appeal 
(and, semble, the County Court on an appli- 
catiou for a new trial) may order a, new 
trial on some only of the issues tried in the 
case to the exclusion of others. Holford and 
Wife v. Melbourne Tramway and Omnibus 
Co., (1909) V.L.R., 497; 29 A.L.T., 112; 
13 A.L.R., 667. F.C. Madden, C.J., a' Bec- 
kett and Cussen, JJ. 

New trial — Limitation of issues to be tried 
— Verdict finding negligence and amount of 



damages — New trial as to issue of negligence 
only — County Court — Appeal to Full Court- 
County Court Act 1890 (No. 1078), sees. 96, 
133, 148— Order XXXIX. (Rules of 1906), 

r. 7.] — In an action for damages for negli- 
gence tried in a County Court, the jury having 
found for the plaintiffs and awarded them 
damages and a new trial having been refused 
by the Judge of the County Court, on appeal 
to the Full Court a new trial before a Judge 
of the Supreme Court of the question of 
negligence or no negligence was ordered, 
leaving the finding as to the amount of 
damages standing. Holford and Wife v. 
Melbourne Tramway and Omnibus Co., (1909) 
V.L.R., 497; 29 A.L.T., 112; 13 A.L.R., 
667. F.C. Madden,C.J., a' Beckett and Cus- 
sen, JJ. 

Order XXII. (Rules of 1906)— Action tried 
in County Court — Appeal to Full Court— 
Re-trial ordered in Supreme Court — Payment 
into Court.] — See Practice and Pleading. 
Fitzgerald v. Murray, (1907) V.L.R., 715; 
29 A.L.T., 158 ; 13 A.L.R., 645. 

Appeal — Evidence, admissibility of — Appli- 
cation for new trial on ground of misconduct 
of juryman — Evidence as to such misconduct 
given before primary Judge — Affidavit as to 
such evidence.] — See Sub-division ; The 
Hearing ; Right to Begin ; Evidence to 
be Considered. David Syme & Co. v. 
Swinburne, 10 C.L.R., 43 ; 16 A.L.R., 93. 

5. Stay of Execution. 

Order LVIII., r. 16 (Rules of 1906)— Stay 
of proceedings pending appeal — Application 
for stay — Whether Full Court may entertain.] 

— An application for a stay of proceedings 
pending an appeal to the Full Court may 
under Order LVIII., r. 16 be made to the 
Full Court. 0' Sullivan v. Morton, (1911) 
V.L.R., 235 ; 32 A.L.T., 172 ; 17 A.L.R., 140. 
F.C. Madden, C.J., Hodges and Hood, JJ. 
(1911). 

6. Parties. 

" Actio personalis moritur cum persona " 
— Action for personal injuries — Judgment for 
plaintiff — Death of plaintiff pending appeal 
— Survival of action to executor — Executor 



41 



APPEAL. 



42 



added as respondent to appeal.] — See Maxims. 
Farrands v. Melbourne, The Mayor, &c. of 
the City of; (1909) V.L.R., 531. 

7. Costs. 

Practice — Costs — Taxation — Appeal from 
County Court — Order dismissing Appeal with 
costs to be taxed by Taxing Master.] — Where 
the Pull Court has made an order that an 
appeal from the County Court he dismissed 
with costs, such costs to be taxed by the 
Taxing Master of the Supreme Court, the 
Taxing Master has power to tax only the- costs 
of the appeal, and has no power to tax the 
costs incurred in the County Court prior to 
the institution of the appeal. Marks v. Pett, 
10 V.L.R. (L.), 342, commented on. Ambler 
& Go. Proprietary Ltd. v. Clayton, (1909) 
V.L.R., 50 ; 30 A.L.T., 113 ; 14 A.L.R., 730. 
a' Beckett, J. (1908). 

IV. Court of Industrial Appeals. 

[For the principles to be applied in deter- 
mining the lowest prices or rates, see, post, 
Factories and Shops Acts.] 

Factories and Shops Act 1905 (No. 1975), 
sec. 122 — Court of Industrial Appeals — 
Whether the determination may prejudice 
the progress maintenance of or scope of 
employment in the trade concerned — What to 
be considered.] — See Factories and Shops 
Acts. In re the Starch Board, 13 A.L.R., 558. 

Factories and Shops Act 1905 (No. 1975), 
sees. 83, 122 — Reference of determination to 
Court of Industrial Appeals— Average prices 
paid by reputable employers insufficient to 
afford a reasonable limit — Principles upon 
which Court should act — Whether determina- 
tion would prejudice the progress, &c, of 
the trade.] — See Factories and Shops Acts. 
In re the Starch Board, 13 A.L.R., 558. 

Court of Industrial Appeals — Purpose of 
its existence — Principles governing its deter- 
mination — Absence of absolute discretion.] — 

See Factories and Shops Acts. In re 
Fellmongers Board, 15 A.L.R., 225. 

Factories and Shops Act 1905 (No. 1975), 
sec. 122 — Determination alleged to prejudice 
progress maintenance of or scope of em- 



ployment in industry — Appeal to Court of 
Industrial Appeal, in respect of what matters 
it may be brought.] — See Factories and 
Shops Acts. In re Boilermakers Board, 18 
A.L.R., 399. 

Court of Industrial Appeals — Appeal, 
whether in the nature of a re-hearing — Fac- 
tories and Shops Act 1905 (No. 1975), Part X.] 

— An appeal from a determination of a Wages 
Board to the Court of Industrial Appeals is 
an appeal by way of re-hearing on any evi- 
dence procurable, and the Court is not limited 
to dealing with the determination on the 
materials which were before the Board. In 
re the Bread Board, 13 A.L.R., 589. Hood, 
J. (1907). 

Factories and Shops Act 1905 (No. 1975), 
sec. 122 — Court of Industrial Appeals — Fac- 
tories and Shops Act 1907 (No. 2137), sec. 33 
— Appeal, nature of — Re-hearing — Whether 
Court confined to materials before Wages 
Board.] — An appeal to the Court of Industrial 
Appeals from the determination of a Wages 
Board is in the nature of a re-hearing, and 
the Court is not confined to a consideration 
of the materials which were before the Board 
in coming to a conclusion as to what should 
be the minimum wage in the process trade 
or business f or which the Board was appointed. 
In re the Ice Board. 16A.L.R., 46. Hodges, 
J. (1909). 

Court of Industrial Appeals — Evidence on 
hearing of appeal.] — For observations as to 
the evidence to be given on the hearing of 
industrial appeals, see, In re the Bread Board, 
13 A.L.R., 589. Hood^ J. (1907). 

Minimum wage, what is — Matters to be 
considered in determining — Factories and 
Shops Act 1905 (No. 1975), sec. 75— Court of 
Industrial Appeals.] — See Factories and 
Shops Acts. In re the Bread Board, 13 
A.L.R., 589. 

V. To General Sessions. 

Appeal to General Sessions — Increase of 
fine to facilitate, propriety of — Justices Act 
1890 (No. 1105), sees. 59 (1), 127.]— See 
Justices op the Peace. Kane v. Dureau, 
(1911) V.L.R., 293 ; 33 A.L.T., 15 ; 17 A.L.R., 
277. 



43 



APPORTIONMENT. 



44 



Marriage Act 1890 (No. 1166), sees. 51, 52 
— Maintenance order — Disobedience by hus- 
band — Proceedings to enforce — Dismissal by 
Justices — Appeal to General Sessions.] — See 

Maintenance and Maintenance Orders. 
Bloxham v. Bloxham, 33 A.L.T. (Supple- 
ment), 11 ; 18 A.L.R. (C.N.), 1. 

General Sessions — Notice of Appeal — Recog- 
nizance, when it must be entered into — Recog- 
nizance entered into after service of notice on 
clerk of Petty Sessions but before service on 
respondent— Justices Act 1890 (No. 1105), 
sec. 128.] — See General Sessions. Ormond 
v. Joske, 16 A.L.R. (C.N.), 1. 

Justices Act 1890 (No. 1105), sec. 128 (5)— 
Appeal — Recognizance — Notice of Appeal — 
Time for entering into recognizance.] — See 

General Sessions. Martin v. Rowden, 32 
A.L.T. (Supplement), 8 ; 16 A.L.R. (C.N.), 10. 
Marriage Act 1890 (No. 1166), sec. 52— 
Justices Act 1890 (No. 1105), sec. 131— Main- 
tenance appeals — Notice of intention to 
appeal — Statement of grounds of appeal — 
Filing notices.] — See General Sessions. 
Gavey v. Gavey, 31 A.L.T. (Supplement), 6 ; 
15 A.L.R. (C.N.), 17. 

Marriage Act 1890 (No. 1166), sec. 52— 
Marriage Act 1900 (No. 1684), sec. 7— Prac- 
tice — Applications to quash, &c. — Orders 
under the Marriage Acts — Service of notice.] 

— <See General Sessions. In re Applica- 
tions to Quash, &c, 31 A.L.T. (Supplement), 
10 ; 15 A.L.R. (C.N.), 25. 

Justices Act 1890 (No. 1105), sees. 128, 132 
— Notice of appeal — Security for appearance 
of appellant — Recognizance entered into before 
notice of appeal given — Invalidity of recogniz- 
ance — Refusal to hear appeal.] — See General 
Sessions. Dungey v. Dunlevie, 31 A.L.T. 
(Supplement), 3 ; 15 A.L.R. (C.N.), 13. 

Justices Act 1890 (No. 1105), sec. 139— 
General Sessions — Invalidity of recognizance 
— Refusal to hear appeal — Power to state a 

case.] — See General Sessions. Dungey v. 
Dunlevie, 31 A.L.T. (Supplement), 3 ; 15 
A.L.R. (C.N.), 13. 

General Sessions — Appeal against convic- 
tion — Information — Whether Court may amend 



—Justices Act 1890 (No. 1105), sees. 73 (4), 
128 (7), 133.] — See General Sessions. 
Delaney v. Napthine, 32 A.L.T. (Supple- 
ment), 10 ; 16 A.L.R. (C.N.), 19. 

Appeal from Court of Petty Sessions- 
Conviction — Amendment, powers of — Justices 
Act 1890 (No. 1105), sees. 133, 185.]— See 
General Sessions. Li Wan Quai v. 
Christie, (1906) 3 C.L.R., 1125; 12 A.L.R., 
429. 

Justices Act 1890 (No. 1105), sec. 139 — 
General Sessions — Special case, contents of— 
What should be stated.] — See General Ses- 
sions. Russell v. Sheehan, (1911) V.L.R., 
81 ; 32 A.L.T., 181 ; 17 A.L.R., 83. 

Justices Act 1890 (No. 1105), sees. 117, 119, 
128 (12), 141— Attachment of debt— Judgment 
debt — Order of General Sessions — Garnishee 
order — Petty Sessions — Effect of — Jurisdic- 
tion — Order to review — " Person aggrieved."] 
— See Justices of the Peace. Brown v. 
Gunn; McKay (Garnishee), (1912) V.L.R., 
463 ; 34 A.L.T., 113 ; 18 A.L.R., 462. 

Attachment of debts — Money ordered to be 
paid by Court of General Sessions — Attach- 
ment by Court of Petty Sessions — Jurisdiction.] 

— See Justices of the Peace. Brown v. 
Gunn; McKay (Garnishee), (1913) V.L.R., 
60 ; 34 A.L.T., 115 ; 18 A.L.R. (C.N.), 21. 

VI. — To the Board of Public Health. 

Noxious trade establishment — Refusal of 
Council to register — Appeal to Board of Public 
Health — Right of appellant to be heard and to 
know what he has to answer — Audi alteram 
partem— Health Act 1890 (No. 1098), sec. 
225.] — See Health (Public). The King v. 
Prahran, Mayor, disc, of ; Ex parte Morris, 
(1910) V.L.R., 460; 32 A.L.T., 92; 16 
A.L.R., 507. 



APPORTIONMENT. 

See also Licensing, Tenant for Life and 
Remainderman. 

Life tenant and remainderman — Investment 
on mortgage — Apportionment of proceeds of 



45 



ARBITRATION. 



46 



realization — Interest on cost of sewerage — 
Rate of interest upon mortgage.] — Trust 
moneys having been lent on mortgage by the 
trustees, and the mortgagor being unable to 
pay the interest, the trustees took possession 
of the mortgaged property, and expended 
out of the income of the estate certain sums 
in sewering the property pursuant, to The 
Melbourne and Metropolitan Board of Works 
Act. The trustees subsequently sold the 
property for less than the principal sum 
advanced and interest thereon. On appor- 
tionment of the proceeds of sale between 
corpus and income. Held, that before 
apportionment corpus was chargeable with 
interest on the sums so expended out of 
income up to the date of repayment to the 
life tenants. In re Morley, (1895) 2 Ch., 
738, followed. On such apportionment the 
life tenant is entitled to interest on the 
principal owing under the mortgage from the 
date when the mortgagor ceased paying 
interest, at the rate (but not the penal rate) 
fixed by the mortgage, unless it is shown 
that such rate of interest was higher than 
the current rates during the period over 
which the arrears extend. Cooper v. Cooper, 
26 V.L.R., 649 ; 22 A.L.T.. 215 ; 7 A.L.R., 
147, explained and followed. Macartney v. 
Macartney, 33 A.L.T., 183 ; 18 A.L.R., 1. 
Madden, C.J. (1912). 



ARBITRATION. 

I. Generally . . . . . . . . 45 

II. Under Water Act and Railways 
Act . . . . . . . . . . 51 

I. — Generally. 

Arbitration — Agreement to submit to — 
Intention to make, how to be ascertained.] — No 

special words are essential to create a stipula- 
tion for a formal arbitration, provided the 
intention can be gathered from the words 
in fact used, or is reasonably to be intended 
from them, or from the nature and purpose 
of the .stipulation. Briscoe & Co. Ltd. v. 
The Victorian Railways Commissioners, 
(1907) V.L.R., 523; 29 A.L.T., 17; 13 
A.L.R., 308. Madden, C.J. 



Contract for sale of goods — Condition that 
goods may be rejected if not to satisfaction of 
purchaser's storekeeper — Condition that dis- 
putes shall be determined by storekeeper — 
Arbitration clause not providing for or imply- 
ing a judicial inquiry.] — The plaintiff con- 
tracted to supply the defendant with stores, 
of the kind specified in a schedule, to the order 
of the defendant's storekeeper under agreed 
conditions and in strict accordance with the 
prescribed samples (if any). Condition 10 
provided that, if in respect of any item in the 
schedule no particular brand of stores was 
specified, the contractor might supply stores 
of any brand, provided that the whole of the 
stores supplied were, in the judgment of the 
storekeeper, of the very best quality and 
strictly in accordance with the specified 
sample (if any) and in every respect to the 
satisfaction of the storekeeper. Condition 12 
provided that, notwithstanding that stores 
had been provisionally signed for or accepted 
by the receiving officer or that they had been 
paid for, the storekeeper should have full 
power to reject any of such stores which were 
in his judgment not in every respect in accord- 
ance with the contract, and that such rejec- 
tion might take place at any time until the 
storekeeper should have expressly certified 
in writing that the stores so supplied under 
the particular order had been found, after 
complete examination and testing, in every 
respect in accordance with the contract. 
The condition also provided that notice in 
writing of the rejection should be given to 
the contractor by the storekeeper, and that 
the contractor should remove the rejected 
stores within a certain time and replace 
them with stores in every respect in accord- 
ance with the contract, failing which the 
storekeeper might purchase stores which in 
his opinion were suitable at the contractor's 
risk. Condition 13 provided that payments 
should be made on the storekeeper's certi- 
cate. Condition 19 was in the following 
terms : — All questions and disputes relating 
to the construction of this contract, or other- 
wise arising thereunder, shall be determined 
by the storekeeper, and his decision shall be 
final and binding on the corporation (i.e., the 
defendant) and the contractor respectively. 



47 



ARBITRATION. 



48 



Certain stores supplied by the plaintiff were 
not in the storekeeper's opinion within the 
meaning of condition 10 of the very best 
quality, nor strictly in accordance with the 
order and the sample, and were not in every 
respect to the satisfaction of the storekeeper, 
and they were in consequence rejected by him 
under condition 12. The plaintiff requested 
the defendant and the defendant refused, to 
submit the question and dispute in reference 
to the rejected stores to the determination 
of the storekeeper, and the plaintiff brought 
an action to recover damages from the 
defendant for so refusing. Held, that con- 
dition 19 was not intended to provide for a 
judicial inquiry, but merely to emphasise 
and complete the right of the defendant to 
demand that the stores supplied should 
be such as should satisfy the storekeeper 
after he had examined and tested them, and 
did not entitle the plaintiff to insist on an 
inquiry by the storekeeper in the nature of an 
arbitration in respect of matters which he 
had already considered and dealt with under 
condition 12. Laidlaw v. Hastings Pier Co. 
(referred to in Hudson on Building Contracts) ; 
Scott v. Corporation of Liverpool, 3 DeG. & J., 
at p. 368 ; Goodyear v. Mayor, dbc, of Wey- 
mouth, 35 L.J. N.S. C.P., 12 ; and Wadsworth 
v. Smith, L.R. 6 Q.B., 332, discussed and ap- 
plied. Robins v. Goddard, (1905) 1 K.B., 
294, and Be Hohenzollem, &c, and the City 
of London Corporation, 54 L.T. N.S., 596, 
distinguished. Briscoe & Co. Ltd. v. Vic- 
torian Railways Commissioners, (1907) V.L.R., 
523 ; 29 A.L.T., 17 ; 13 A.L.R., 308. Mad- 
den, C.J. 

Arbitration — Building contract — Extension 
of time fixed for completion — Determination 
of contract by employer during currency of 
further time allowed for completion — Arbitra- 
tion provision, whether applicable — Stay of 
action— Supreme Court Act 1890 (No. 1142), 
sec. 152.] — One of the conditions of a contract 
between a Shire council and a contractor 
for building a bridge provided that the con- 
tractor should complete the whole of the 
works on a certain day. Another condition 
provided that if the contractor should, in the 
opinion of the engineer, fail to make such 



progress with the works as the engineer 
should deem sufficient to ensure their comple- 
tion within the specified time, and should fail 
or neglect to rectify such cause of complaint 
for seven days after being thereunto required 
in writing by the engineer, it should be lawful 
for the council to determine the contract. 
A third condition provided should " any 
doubt dispute or difference arise or happen 
touching or concerning the said works . . . 
or in relation to the exercise of any of the 
powers of the council or the engineer under 
this contract or any claim made by the con- 
tractor in consequence thereof or in any way 
arising therefrom or in relation to any 
impediment prevention or obstruction to or 
in the carrying on of the works of this contract 
or any part thereof (or any extras additions 
enlargements deviations or alterations thereon 
or thereof) by the council or the engineer 
or any claim made by the con- 
tractor in consequence thereof or in any way 
arising therefrom or touching or concerning 
the meaning or intention of this contract 
or of the specifications or conditions or any 
other part thereof ... or respecting any 
other matter or thing not hereinbefore left 
to the decision or determination of the 
engineer " every such doubt dispute and 
difference should from time to time be referred 
to and settled and decided by the engineer. 
Subsequently the council agreed to extend 
the time for completion, and, by an indenture 
between the parties, the condition for comple- 
tion on a certain day was rescinded, and » 
new condition was substituted, identical in 
terms except that a new date for completion 
was inserted. The council, after the original 
date for completion and before the new date 
purported to determine the contract in pur- 
suance of the conditions in that behalf. 
An action having been brought by the 
contractor claiming (inter alia) damages for 
breach of contract, for wrongful prevention 
of due and complete performance, and for 
wrongful determination of the contract, and 
upon a quantum meruit for work and labour 
done. Held, that the matters in dispute 
were referable to the arbitration of the 
engineer, notwithstanding that the original 
time for completion had passed when the 



49 



ARBITRATION. 



50 



contract was determined, and, therefore, 
that the action should be stayed under sec. 
152 of the Supreme Court Act 1890. Burton 
v. Bairnsdale, President, dbc, of Shire of, 
(1908) 7 C.L.R., 76; 14 A.L.R., 529. H.C., 
Barton, O'Connor, Isaacs and Higgins, J J. 

Arbitration — Submission — Revocation — 
Incorporation of laws of Victoria — Bank- 
ruptcy of one of the parties; to the agreement 
for reference — Leave to revoke submission — 
Supreme Court Act 1890 (No. 1142), sees. 141, 
160.] — A contract in writing provided that 
all differences arising between the contracting 
parties should be referred to two arbitrators, 
one to be appointed by each party. The 
contract did not expressly provide that the 
submission should be made a, rule of Court, 
but provided {inter alia) that the arbitration 
should take place in Melbourne and should be 
" subject to the provisions of the law in that 
behalf for the time being in force in Vic- 
toria," or failing Melbourne, in such other 
place as the principal business should then be 
carried on. After differences had arisen 
between the parties, and one of them had 
been adjudged bankrupt, he appointed an 
arbitrator, whereupon the other party ap- 
plied to the Court for leave to revoke the 
appointment, power and authority of the 
arbitrator appointed. Held, that the pro- 
vision in the contract that the arbitration 
should be subject to the laws of Victoria 
amounted to an agreement that the submis- 
sion should be made a rule of Court, and that 
under sec. 141 of the Supreme Court Act 1890 
the arbitrator's authority was not revocable 
without the leave of the Court. In re 
Mitchell and Izard and the Governor of Ceylon, 
21 Q.B.D., 408, followed. Held, further, 
that in view of the bankruptcy of the party 
appointing, such leave should be given. Be 
Freeman and Kempster, (1909) V.L.R., 394; 
31A.L.T., 42; 15 A.L.R., 444. a' Beckett, J. 
[But see Arbitration Ace 1910 (No. 2265).] 

Arbitration — Award, validity of — Uncer- 
tainty — Refusal to hear evidence — Specific 
performance of agreement ordered — Lease, 
time of commencement — Covenant not to 
alter will.] — On a reference to arbitration to 
determine all disputes between A. and B., 



the deed of submission gave the arbitrators 
or their umpire power to order what they 
or he should think fit to be done by either 
of the parties. By his award the umpire 
found that on a certain day an agreement 
had been entered into between the parties 
to the effect (inter alia) that A. should pay 
to B. a certain sum in settlement of all claims 
between them up to the date of the agreement, 
that. A. should lease to B. certain premises 
for a certain term at a certain rent, and that 

A. should not alter the terms of her will. 
He also found that the agreement had been 
partly performed by B. having on a, certain 
day been' admitted by A. into possession 
of the premises agreed to be leased, and that 

B. had altered his position and incurred 
expense on the faith of the agreement. . He 
then ordered and determined that A. should 
specifically perform her part of such agree- 
ment, including a covenant that she would 
not alter her will, and that B. should execute 
all leases and documents, and do all such 
things as might be necessary to effectuate the 
observance by him of the agreement. On 
motion by A. to set aside the award. Held, 
that the award was not uncertain, for (1) 
by reference to the agreement as to the 
lease and the finding that possession had been 
taken pursuant to that agreement on a par- 
ticular day, the proper inference was that 
the lease was to begin on that day ; (2) it 
was not necessary that the deeds and docu- 
ments directed to be executed should be 
further specified ; and (3) that it was not 
necessary to set out the terms of the will 
referred to. Held, further, that as by the 
award it was found that an agreement had 
been made between the parties for the pay- 
ment of a certain sum in settlement of all 
disputes between them, and specific perform- 
ance of that agreement was directed, it was 
not necessary to go into evidence as to what 
were the disputes, and, therefore, that there 
had been no such refusal to hear evidence 
as would invalidate the award, JopHng v. 
Jopling, (1908) 8 C.L.R., 33. H.C., Griffith, 
C.J., O'Connor and Isaacs, JJ. 

Arbitration — Publication of award — Amend- 
ment of award — Power of arbitrator — Re- 
mission of award by Court.] — An arbitrator 



51 



ARREST. 



52 



has no power to amend an award after 
publication to the parties, but where he has 
purported to make an amendment the Court 
may remit the subject matter of such amend- 
ment for consideration. In re Bennett 
Brothers, (1910) V.L.R., 51 ; 31 A.L.T., 148 ; 
16 A.L.R., 30. Madden, C.J. 

Arbitration — Discovery of fresh evidence 
since publication of award — Remitting award 
to arbitrator for reconsideration — Jurisdiction.] 

— The Court has jurisdiction to remit an 
award to the arbitrator for reconsideration 
on the ground of the discovery of fresh evi- 
dence, notwithstanding that such evidence 
might by due diligence have been discovered 
and produced at the former inquiry by the 
party in whose favour it is. Re Keighley, 
Maxsled dk Co., (1893) 1 Q.B., 405, and 
Spratjue v. Allen, 15 T.L.R., 150, followed. 

In re Bennett Brothers, (1910) V.L.R., 51 ; 
31 A.L.T., 148 ; 16 A.L.R., 30. Madden, 

C.J. 

County Court — Action on insurance policy — 
Arbitration a condition precedent to right of 
action — Stay of proceedings — Adjournment — 
Jurisdiction — County Court Act 1890 (No. 
1078), sec. 71.] — An action was brought 
against the assurer by the person assured 
upon a policy of insurance which provided 
that the determination of any dispute or 
question by arbitration should be a condition 
precedent to the liability of the assurer, and 
to the right of the assured to recover. Upon 
an application by the assurer for » stay of 
all proceedings, Held, that the trial of the 
action should, under section 71 of the County 
Court Act 1890, be adjourned until arbitration 
under the terms of the policy had taken place. 
Borreil v. Norwich and London Accident 
Insurance Association, 29 A.L.T. (Supple- 
ment), 1 ; 13 A.L.R. (C.N.), 22. Judge 
Chomley (1907). 

II. — Under Water Act and Railways Act. 

Water Act 1905 (No. 2016), sec. 231— 
Compensation for land taken for works — 
Principles in awarding compensation — Muni- 
cipal valuation of block of land as a whole — 
Part only of block taken.] — Where land taken 
as a site for a, channel for the conveyance 
and distribution of water forms portion of a 



block of land of the same owner which has 
been valued as a whole by the municipal 
authority, the value of the land so taken 
must, for the purpose of ascertaining the 
compensation payable in respect of such 
land, be estimated at an amount bearing 
the same proportion to the value of the 
whole block as the area of such land bears 
to that of such block. In re Godfrey and 
Board of Land and Works, (1910) V.L.R., 83 ; 
31 A.L.T., 152 ; 16 A.L.R., 51. Madden, 
C.J. (1910). 

Water Act 1905 (No. 2016), sec. 231— 
Compensation in respect of land taken— 
Injury to other land of same owner — Com- 
pensation in respect of, whether it may be 
given.] — In assessing compensation in respect 
of land taken under the Water Act 1905 
compensation may be awarded for ether 
land of the same owner injuriously affected 
by the taking of the land required. In re 
Godfrey and the Board of Land and Works, 
(1910)V.L.R., 83; 31 A.L.T., 152 ; 16A.L.R., 
51. Madden, C.J. (1910). 

Water Act 1905 (No. 2016), sec. 231— 
Compensation in respect of land taken — 
Principles in awarding — " Channels for the 
conveyance and distribution of water."] — 
In section 231 of the Water Act 1905, the 
words " channels for the conveyance and 
distribution of water " include main irriga- 
tion channels as well as distributing channels. 
In re Godfrey and the Board of Land and 
Works, (1910) V.L.R., 83; 31 A.L.T., 152; 
16 A.L.R., 51. Madden, C.J. (1910). 

Arbitration— Railways Act 1896 (No. 1439), 
sec. 21— Action against Railways Commis- 
sioners for losses caused by sparks from rail- 
way engines — Practice — Summons for direc- 
tions — Order on summons — Order XXX., r. 
2 (Rules of 1906).] — <See Railways. Roach 
v. Victorian Railways Commissioners, (1910)' 
V.L.R., 314 ; 32 A.L.T., 10 ; 16 A.L.R., 302. 



ARREST. 

See also, Service and Execution of Pro- 
cess Act. 

Bail — Prisoner charged with murder- 
Preliminary hearing before Justices pending— 



53 



ARREST— ARTIFICIAL MANURES ACT. 



54 



Granting bail before committal.] — See Crim- 
inal Law. Rex v. Peacock, 33 A.L.T., 84 ; 
17 A.L.B., 452. 

Bail — Person charged with capital offence 
— Whether bail should be allowed — Matters to 
be considered in determining.] — See Criminal 
Law. Rex v. Peacock, 33 A.L.T., 84 ; 17 
A.L.R., 452. 

Arrest — Person found offending by laymen 
— Arrest by laymen — Delivery to constable — 
Duty of constable— Police Offences Act 1890 
(No. 1126), sec. 82.] — See. Police Offences 
Acts. McLiney v. Minster, (1911) V.L.R., 
347 : 33 A.L.T., 33 ; 17 A.L.R., 336. 

Police Offences Act 1890 (No. 1126), sec. 
82— Apprehension of person found offending — 
Apprehension, what amounts to — Whether 
actual manual arrest necessary.] — See Police 
Offences Acts. McLiney v. Minster, (1911) 
V.L.R., 347 ; 33 A.L.T., 33 ; 17 A.L.R., 
336. 

Police Offences Act 1890 (No. 1126), sec. 
94 — Person unlawfully arrested by constable — 
Whether justified in resisting arrest.] — See 
Police Offences Acts. McLiney v. 
Minster, (1911) V.L.R., 347 ; 33 A.L.T., 33 ; 
17 A.L.R., 336. 

Fugitive Offenders Act 1881 (44 & 45 Vict, 
c. 69), sees. 3, 5, 9 — Warrant for apprehension 
of fugitive — Statement of offence charged, 
sufficiency of.] — An endorsed warrant 
sufficiently mentions within the meaning of 
sec. 5 of the Fugitive Offenders Act 1881, the 
offence charged if the charge be substantially 
sufficient according to the law of the State 
where the warrant was issued. McKelvey 
v. Meagher, 4 C.L.R., 265 ; 12 A.L.R., 483 ; 
H.C., Griffith, C.J., Barton and O'Connor, 
J J. (1906). 

Fugitive Offenders Act 1881 (44 & 45 Vict, 
c. 69), sec. 5 — Endorsed warrant — Statement 
of offence, sufficiency of.]— -See Fugitive 
Offenders. McKelvey v. Meagher, 4 C.L.R., 
265 ; 12 A.L.R., 483. 

Malicious Arrest — Abuse of process of 
Court.] — The distinction between an action 
for malicious arrest, and an action founded 
on an abuse of the process of the Court 



discussed. Varaioa v. Howard Smith Co. 
Ltd., (1911) 13 C.L.R., 35; 17 A.L.R., 499. 
H.C., Griffith, C.J., O'Connor and Isaacs, 
JJ. 

Malicious Arrest — Arrest under process of 
foreign Court — Termination of proceedings 
in favour of plaintiff before action brought — 
Setting aside of order to hold to bail and writ 
of ca. re. — Reasonable and probable cause.] — • 
See Malicious Prosecution. Varawa v. 
Howard Smith Co., (1911) 13 C.L.R., 35 ; 
17 A.L.R., 499. 

Supreme Court Act 1890 (No. 1142), sec. 
110 — Arrest and bail — Order to hold to bail, 
effect of.] — See Practice and Pleading. 
Varawa v. Howard Smith Co. Ltd., (1911) 
13 C.L.R., at p. 53 ; 17 A.L.R., at pp. 504-5. 

Service and Execution of Process Act 1901 
(No. 11), sec. 18 (4) — Application for discharge 
of person apprehended — Procedure — Form of 
order.] — See Service and Execution of 
Process Act. In re George, (1908) V.L.R., 
734 ; 30 A.L.T., 113 ; 14 A.L.R., 699. 



ARTICLED CLERK. 

See SOLICITOR. 



ARTICLES OF ASSOCIATION. 

See COMPANY. 



ARTIFICIAL MANURES ACT. 

Artificial Manures Act 1904 (No. 1930), 
sees. 11, 16, 17— Manure— Offence— De- 
ficiency in chemical constituents — Manure in 
possession of Purchaser — Manure taken and 
collected by chemist without consent of 
Purchaser — Meaning of " place where manure 
is stored " — Manure kept or offered for sale.] — 
It is not an offence under sec. 16 of the 
Artificial Manures Act 1904 (which makes it 
an offence on the part of the vendor of 
" manure " within the meaning of the Act 



55 



ASSAULT— ASSIGNMENT. 



56 



if such manure is deficient to a prescribed 
extent in respect of certain chemical con- 
stituents), where the manure in question has 
not been submitted for analysis by a pur- 
chaser of the same under sec. 11, but has been 
collected and taken by the chemist on his own 
initiative from the premises of the purchaser 
without the consent of the latter. Sec. 17 
of that Act (which section gives power to the 
chemist or his deputy to enter shops, etc., 
examine manure collect and take for analysis 
portions thereof) refers to manure which in 
fact is kept or offered for sale by a person 
dealing in such manure, and is in the custody 
of such person. The expression in see. 17 
" the place where manure is stored," means a 
place where manure is stored by any manu- 
facturer, importer or vendor of or dealer in 
manure, and does not mean a place where a 
person who has purchased it for the purpose 
of using it may have deposited it on his land 
or premises. Robertson v. Rohs, (1909) 
V.L.R., 68; 30 A.L.T., 110; 14 A.L.R., 
731. Madden, C.J. (1908). 



ASSAULT. 



Police Offences Act 1890 (No. 1126), sec. 94 
— Person unlawfully arrested by constable — 
Whether justified in resisting arrest.] — A 
person unlawfully arrested by a constable 
is justified in resisting and endeavouring 
to escape from such constable, provided he 
does not use undue voilence in so doing. 
McLiney v. Minster, (1911) V.L.R., 347 ; 33 
A.L.T., 33 ; 17 A.L.R., 336. F.C., Madden, 
C.J., Hood and Cussen, JJ. 

Autrefois acquit — Arrest by two constables 
— Dismissal of charge of assaulting one 
constable in execution of his duty — Whether 
an answer to charge of assaulting other 
constable in execution of his duty.] — See 
Criminal Law. McLiney v. Minster, (1911) 
V.L.R., 347 ; 33 A.L.T., 33 ; 17 A.L.R., 336. 



ASSIGNEE. 

INSOLVENCY. 



ASSIGNMENT. 

I. What may be Assigned . . . . 56 

II. Equitable Assignments . . . . 57 

III. Book Debts . . . . . . . . 60 

IV. Other Points . . . . . . 61 

<See, also, Insolvency. 

I. — What may be Assigned. 

Railways Act 1890 (No. 1135), sec. 93— 
Railway employee — Retiring allowance, 
whether assignable — Liability to be recalled to 
service — Civil Service Act 1862 (No. 160), 
sees. 42, 43, 44.] — An employee of the 
Victorian Railways Commissioners, who held 
office before the passing of The Victorian 
Railways Commissioners Act 1883, was 
permitted by the Governor-in-Council to 
retire from the ^service, on the ground of 
incapacity to discharge the duties of his office 
by reason of infirmity of body.. Held, that 
the employee was not liable to be recalled 
to service, and that the allowance was there- 
fore assignable. Brown v. Victorian Rail- 
ways Commissioners, 3 C.L.R., 316; 12 
A.L.R., 1, applied. Crouch v. Victorian 
Railways Commissioners, (1907) V.L.R., 80; 
28 A.L.T., 141 ; 12 A.L.R., 574. F.C., 
a' Beckett, A.C.J., Hodges and Cussen, J J. 

Pension — Police officer — Whether assign- 
able — Liability of pensioner to be recalled to 
duty— Police Regulation Act 1890 (No. 1127), 
sees. 20, 24.] — A pension granted to a police 
officer under Part III. of the Police Regula- 
tion Act 1890 is not assignable, inasmuch as 
under sec. 24 it is subject to the condition 
that the officer shall remain in the service of 
the Government to the extent that, though 
he is not for the time being employed, he 
may be recalled to his duties and be actively 
employed. Grouch v. Victorian Railways 
Commissioners, (1907) V.L.R., 80; 28 
A.L.T., 141; 12 A.L.R., 574, followed. 
In re Hilliard ; Ex parte Tinkler, (1907) 
V.L.R., 375 ; 28 A.L.T., 204 ; 13 A.L.R., 
138. F.C., Madden, C.J., Hodges and Hood, 
JJ. 

Chose in action consisting of right against 
the Crown — Assignment — Petition of right by 
assignee — Crown Remedies and Liability Act 



57 



ASSIGNMENT. 



58 



1890 (No. 1080), sec. 20]— A chose in action 
consisting of a right against the Crown can 
be assigned so as to entitle the assignee to 
present » petition of right under the Crown 
Remedies and Liability Act 1890, sec. 20, in 
respect of it. The. King v. Brown (1912) 14 
C.L.R., 17 ; 18 A.L.R., 111. H.C., Griffith, 
C.J., Barton and Isaacs, J J. 

II. — Equitable Assignments. 

Contract — Interpretation — Agreement to de- 
posit time-payment agreements as security — 
Depositor allowed to- collect debts due— De- 
posit of additional time-payment agreements 
equal in value to those discharged by payment 
— Equitable assignment — Book Debts Act 
1896 (No. 1424), sees. 2, 3— Non-registration.l 
— J., who had in the ordinary course of his 
business sold furniture under time-payment 
agreements, in consideration of advances made 
to him by M., agreed in writing to deposit 
with M. as security for such advances certain 
time-payment agreement forms signed and 
complete, which were to remain the property 
of M. until the full amount of the advances 
with interest had been repaid to him ; and 
it was further provided that if any of the 
time-payment agreements should be fully 
paid up by the " hirer," J. should replace 
them with others of equal value. In pur- 
suance of the agreement J. delivered to M. 
the time-payment agreement forms. The 
agreement between J. and M. was not regis- 
tered under the Book Debts Act 1896. The 
estate of J. was sequestrated. Held, that 
the transaction gave to M. not a mere security 
over, and right to retain the documents 
deposited, but amounted to an equitable 
assignment to him of the debts due to .T. 
under the time-payment agreements, and 
that the assignment was void for want of 
registration under the Book Debts Act 1896. 
In re Jones, (1906) V.L.R., 432 ; 27 A.L.T., 
230; 12 A.L.R., 279. F.C., a' Beckett, 
A.C.J., Hodges and Chomley, J J. (1906). 

Book debt — Assignment — Future debt — 
Money to become payable by agent to principal 
on sale of goods — Book Debts Act 1896 (No. 
1424), sees. 2, 3.] — -A wool-grower consigned 
wool to a firm of woolbrokers to be sold. 
Before the wool was sold the wool-grower 



bought sheep from A, and in payment for 
them gave A a written order directing the 
firm to pay to A. a certain sum when his wool 
should be sold, and to deduct that sum from 
the proceeds of the sale of the wool. The 
wool having been sold, the wool-grower 
became insolvent, and subsequently the firm 
paid to A the sum as directed by the order. 
In an action by the trustees of the wool- 
grower against A to recover the money so 
paid, Held, that the order given by the wool- 
grower to A was an assignment to A to the 
extent therein mentioned of the debt, which 
was not invalidated by its non-registration 
under the Book Debts Act 1896, and, there-, 
fore, that the trustee was not entitled to 
recover. Shackell v. Howe, Thornton & 
Palmer, (1909) 8 C.L.R., 170; 15 A.L.R., 
176. H.C., Griffith, C.J., O'Connor and 
Isaacs, J J. 

Equitable assignment of future fund — 
Registration — Book Debts Act 1896 (No. 
W.424), sec. 2^-Instruments Act 1890 (No. 
1103), Part VI.] — A, a cattle salesman, sold 
cattle on behalf of a principal to B., advancing 
the purchase money himself and receiving 
from B. a promissory note for the amount 
of the advance, and also entering into a, 
verbal agreement with B. that B. should 
resell the cattle through A., who might repay 
himself the amount of the advance out of the 
purchase money. Quaere {per Griffith, C.J., 
Barton and O'Connor, J J.), whether the 
agreement as to the re-sale of the cattle 
through A. amounted to an assignment 
to A. of the purchase money which might 
be paid on the re-sale of the cattle, and, if so, 
whether the agreement should have been 
in writing and registered under the Book 
Debts Act 1896. Per Isaacs, J. — The 
agreement amounted to an equitable assign- 
ment, and did not require registration either 
under the Instruments Act 1890 or the 
Book Debts Act 1896. Muntz v. Smail, 
(1909) 8 C.L.R., 262 ; 15 A.L.R., 162. 

Assignment — Deposit of Savings Bank pass 
book and order for payment out of money in 
bank — Debt due in connection with business 
carried on by assignor — Book Debts Act 1896 
(No. 1424), sec. 2 (a).] — A., having entered 



59 



ASSIGNMENT. 



60 



into a contract with the Commonwealth to 
erect a post-office, and being required by the 
conditions of tendering to give security 
for the due and proper performance of the 
contract deposited with the proper officer of 
the Commonwealth a Savings Bank pass-book 
showing an amount of money to his credit 
together with a duly signed order for with- 
drawal by means of which the said amount 
might be withdrawn from the Savings Bank. 
By means of an H. order he authorized the 
Commonwealth to hand over the pass-book 
and withdrawal order to B. and notice of the 
giving of the H. order was duly given to the 
Commonwealth by B. Held, that the H. 
order constituted » good assignment of the 
debt due in respect of the deposit by the 
Commonwealth to A., but that it was not 
an assignment of a debt within the meaning 
of the Book Debts Act 1896. Cox v. Smail, 
(1912) V.L.R., 274; 18 A.L.R., 299. Cussen, 
J. 

Supreme Court Act 1890 (No. 1142), sec. 
63 (6)— Order in., r. 6 (Rules of 1906)— Order 
XIV. — " Debt or liquidated demand " — As- 
signment of debt — No written notice of 
assignment.] — Quaere, whether in the case 
of an assignment of a debt the assignee's 
claim is for a " debt or liquidated demand " 
within the meaning of Order III., r. 6, unless 
the assignment is a legal assignment com- 
pleted by written notice under the Supreme 
Court Act 1890, section 63 (6). Caddy v. 
Beatiie, (1908) V.L.R., 17 ; 29 A.L.T., 165 ; 
13 A.L.R., 643. Cussen, J. (1907). 

Assignment of debt — No written notice of 
assignment — Proceedings by assignee — Parties. 

— For a discussion of the question whether, 
in proceedings by the assignee of a debt, it is 
necessary that the assignor should be before 
the Court, where the assignment is not a 
legal assignment. See Caddy v. Beattie, 
(1908) V.L.R., 17; 29 A.L.T., 165; 13 
A.L.R., 643. Cussen, J. (1907). 

Mortgage — Equitable security — Amount se- 
cured re-paid by a stranger — Preservation 
of encumbrances.] — See Mortgagor and 
Mortgagee. Cuddigan v. Poole, 33 A.L.T., 
210 ; 18 A.L.R., 120. 



III. — Book Debts. 

Contract — Interpretation — Agreement to de- 
posit time-payment agreements as security- 
Depositor allowed to collect debts due — Deposit 
of additional time-payment agreements equal 
in value to those discharged by payment — 
Equitable assignment — Book Debts Act 1896 
(No. 1424), sees. 2, 3 — Non-registration.]— 
See Sub-heading, Equitable Assignments. 
In re Jones, (1906) V.L.R., 432 ; 27 A.L.T., 
230 ; 12 A.L.R., 279. 

Book debt — Money to become payable by 
agent to principal on sale of goods — " On 
account of or in connection with . . . 
business "—Book Debts Act 1896 (No. 1424), 
sees. 2, 3.] — Money which will become pay- 
able by an agent to his principal, a trader, as 
purchase money on the sale of goods of the 
principal consigned to the agent for sale, 
constitutes a debt to become due by the 
agent to the principal, but not a debt on 
account of or in connection with the business 
of the principal within the meaning of the 
Book Debts Act 1896, and is therefore not 
a " book debt " within the meaning of that 
Act. Shackell v. Howe, Thornton & Palmer, 
(1908) 8 C.L.R., 170 ; 15 A.L.R., 176. H.C., 
Griffith, C.J., O' Connor and Isaacs, J J. 

Equitable assignment of future fund- 
Registration — Book Debts Act 1896 (No. 
1424), sec. 2— Instruments Act 1890 (No. 
1103), Part VI.] — See sub-heading, Equitable 
Assignments. Muntz v. Smail, (1909) 8 
C.L.R., 262 ; 15 A.L.R., 162. 

Assignment — Deposit of Savings Bank pass- 
book and order for payment of money in bank 
— Debt due in connection with business 
carried on by assignor — Book Debts Act 1896 
(No. 1424), sec. 2 (a).] — -See sub-heading, 
Equitable Assignments. Cox v. Smail, 
(1912) V.L.R., 274 ; 18 A.L.R., 299. 

Book Debts Act 1896 (No. 1424), sec. 2 (a)— 
" Business," meaning of — Engagement in 
particular kind of transaction with intention 
to continue therein — Isolated transactions.]— 
See Book Debts. Schroder v. Hebbard, 
(1907) V.L.R., 107 ; 29 A.L.T., 1 ; 13 A.L.R., 
141. 



61 



ATTACHMENT. 



62 



Book Debts Act 1896 (No. 1424), sec. 2 (a)— 
" Business," meaning of — Three contracts for 
the supply of firewood entered into at different 
times.] — See Book Debts. Schroder v. Heb- 
bard, (1907) V.L.R., 107 ; 29 A.L.T., 1 ; 

13 A.L.R., 141. 

IV. — Other Points. 

Lessor and lessee — Breach of covenant by 
lessee — Subsequent assignment of lease — 
Liability of assignee.] — See Landlord and 
Tenant. Renshaw v. Maker, (1907) V.L.R., 
520 ; 29 A.L.T., 237 ; 13 A.L.R., 265. 

Illegal Contract — Transfer of land to defeat 
creditors — No proof that creditors defeated — 
Resulting trust.] — See Trusts and Trustees. 
Payne v. McDonald, (1908) 6 C.L.R., 208 ; 

14 A.L.R., 366. 

Trustee — Life tenant and remainderman — 
Corpus and income — Costs paid by trustees 
under order of High Court — Decision of High 
Court reversed on appeal by one party to Privy 
Council — Effect on rights of parties not ap- 
pealing — Indemnity of trustees — Rights of 
assignee of life tenant.] — See Tenant for 
Life and Remainderman. Cock v. Aitken, 
(1912) 15 C.L.R., 373 ; 18 A.L.R., 576. 



ATTACHMENT. 

I. Attachment of Debts. 

II. Foreign Attachment 

III. Attachment of the Person 

A. IN CIVIL MATTERS 

B. IN CRIMINAL MATTERS . . 



, . 61 

, . 62 

. 63 

. . 63 

. . 65 



T. — Attachment of Debts. 

Attachment of debts — Money ordered to be 
paid by Court of General Sessions — Attachment 
by Court of Petty Sessions — Jurisdiction.] — See 

Justices of the Peace. Brown v. Qunn ; 
McKay, Garnishee, (1913) V.L.R., 60; 34 
A.L.T., 115; 18 A.L.R. (C.N.), 21. 

Justices Act 1890 (No. 1105), sees. 117, 
119, 128, 141— Attachment of debt— Judg- 
ment debt — Order of General Sessions — 
Garnishee order — Petty Sessions — Effect of — 
Jurisdiction — Order to review — " Person ag- 



grieved."] — See Justices of the Peace. 
Brown v. Qunn; McKay, Garnishee, (1912) 
V.L.R., 463; 34 A.L.T., 113; 18 A.L.R., 
462. 

Attachment of debts — Garnishee order — 
Judgment debtor trustee of moneys attached — 
Appearance of judgment debtor before Jus- 
Justices to protect fund — Justices Act 1890 
(No. 1105), sec. 117.]— A judgment debtor, 
Who is a trustee of moneys sought to be 
attached by a garnishee order nisi for payment 
of a, judgment debt due by him personally, 
has a right, and is under a duty, to appear 
before the Justices on the garnishee pro- 
ceedings to show that the moneys are trust 
moneys and ought not therefore be attached. 
Roberts v. Death, 8 Q.B.D., 319, followed. 
Regina v. Justices of Heywood, 21 V.L.R., 
654 ; 17 A.L.T., 238, distinguished. Rich- 
ards v. Jager, (1909) V.L.R., 140 ; 30 A.L.T., 
163; 15 A.L.R., 119. Madden, C.J. 

Attachment of debts — Action for unlawfully 
attaching trust funds.] — No action will lie 
for unlawfully causing moneys standing to 
the credit of a trust account in the name of 
the plaintiff to be attached for his personal 
debt. Jager v. Richards, (1909) V.L.R., 181 ; 
30 A.L.T., 199 ; 15 A.L.R., 123. Cussen, J. 

County Court — Attachment of debts — Ser- 
vice of garnishee order nisi — Notice of order 
directed to be sent by telegram to garnishee, 
to be followed by personal service upon him 
of a copy of such order — Order nisi made 
returnable before a Judge of a County Court 
sitting in place other than where judgment 
obtained— County Court Act 1890 (No. 1078), 
sees. 108, 109.] — Greenwood v. McCormack, 
Blakeley Garnishee, 28 A.L.T. (Supplement), 
5 ; 12 A.L.R. (C.N.), 24. Judge Eagleson 
(1906). 

II. — Foreign Attachment. 

Supreme Court Act 1890 '(No. 1142), sec. 
91 — Foreign attachment — Affidavit to be 
filed.] — The conditions prescribed by sec. 
91 of the Supreme Court Act 1 890 as precedent 
to the issue of » writ of foreign attachment 
must be strictly observed. The affidavit 
must set forth facts from which the Court 



63 



ATTACHMENT. 



64r 



can judge whether or not the cause of action 
arose wholly within Victoria, and what the 
nature and character of the action is. It is 
not sufficient for the affidavit to state gener- 
ally the cause of action, and that it arose 
in Victoria. If made on information and 
belief the affidavit must set out the source of 
the deponent's knowledge and the facts on 
which it is based. Henderson v. Ward, (1912) 
V.L.R., 289 ; 34 A.L.T., 13 ; 18 A.L.K., 218. 
Madden, C.J. 

III. — Attachment of the Pekson. 

a. IN CIVIL MATTERS. 

Order XLIV., r. 2 (Rules of 1884)— Order 
XLII., rr. 3, 6, 7, 17 (Rules of 1884)— Attach- 
ment — Disobedience of order to pay costs — 
Imprisonment of Fraudulent Debtors Act 1890 
(No. 1100) — Whether power to attach for dis- 
obedience affected by.] — Notwithstanding the 
provisions of the Imprisonment of Fraudulent 
Debtors Act 1890, the Court has power to 
issue a writ of attachment for disobedience 
of its order to pay costs. Re Sandilands ; 
Ex parte Browne, 4 V.L.R. (L.), 318, followed. 
Pope v. Peacock, (1906) V.L.R., 667 ; 28 
A.L.T., 63 ; 12 A.L.R., 440. Hodges, J. 

Attachment — Contempt of Court — Man- 
damus — Statutory public duty — Minister of 
the Crown.] — Semble, there is no privilege 
in a Minister of the Crown entitling him to 
i m munity from attachment for contempt of 
Court for his disobedience of a mandamus 
calling upon him to perform a statutory 
public duty. The King v. Watt ; Ex parte 
Slade, (1912) V.L.R., 225; 33 A.L.T., 222; 
18 A.L.R., 158. F.C., Madden, C.J., Hodges 
and Cussen, J J. 

Contempt of Court — Ecclesiastical privilege 
—Presbyterian Church of Victoria — Refusal 
of Presbytery Clerk to produce documents in 
civil action.] — See Contempt. Ronald v. 
Harper, 15 A.InR. (C.N.), 5. 

Contempt of Court — Nature of offence — 
Publication of statements concerning a Judge 
of the High Court.] — See Contempt. Rex v. 
Nicholls, (1911) 12 C.L.R., 280; 17 A.L.R., 
309. 



Insolvency Act 1890 (No. 1102), sees. 76, 
113 — Execution of process or judgment, stay 
of — Debt due by insolvent to creditor — Trust 
moneys which are or ought to be in hands of 
trustee — Trustee ordered to pay moneys into 
Court. — Disobedience of order — Attachment.] 
— Sees. 76 and 113 of the Insolvency Act 1890 
are both directed to process for the enforce- 
ment of the payment of money as a debt due 
by the insolvent to a creditor. The insolvency 
of a person, who in the position of a trustee, 
has not accounted for money he once had and 
still ought to have, and who has been ordered 
to pay the money into Court, does not oper- 
ate as a stay upon process of attachment 
against him for non-compliance with the 
order for payment into Court. Peterson v. 
M'Lennan, (1907) V.L.R., 94; 28 A.L.T., 
135 : 12 A.L.R., 577. Cussen, J. 

Order XLII., rr. 3, 17 (Rules of 1884)— 
Order XLIV., r. 2 — Order for payment of 
money — Execution under fi. fa. — Attachment 
for disobedience — Election of remedy, whether 
creditor bound by.] — A writ of attachment for 
disobedience of an order of the Court for pay- 
ment of a sum of money may issue, although 
a writ of fi. fa. to enforce such payment has 
been issued previously. In re Ball, L.R. 8 
C.P., 104, explained. Pope v. Peacock, 
(1906) V.L.R., 667; 28 A.L.T., 63; 12 
A.L.R., 440. Hodges, J. 

Order LIL, r. 11— Order LXVIL* r. 9— 
Writ of attachment — Sheriff, refusal of to 
execute — Execution, how enforced — Whether 
mandamus may issue.] — Whether the Sheriff 
refuses to execute a writ of attachment he 
should be called upon to return the writ or 
bring in the body within a given time, and on 
his non-compliance application should be 
made under Order LIL, r. 1 1, for his com- 
mittal. A writ of mandamus will not issue, 
there being an alternative remedy. Peterson 
v. M'Lennan, (1907) V.L.R., 94 ; 28 A.L.T., 
135 ; 12 A.L.R., 577. Cussen, J. 

Attachment of person — Sheriff, duty of— 
Writ of attachment regular on its face.}— 
Quaere, whether under a writ of attachment 
the Sheriff is not bound, in every case in 
which the writ of attachment is regular on 



65 



ATTACHMENT. 



66 



its face, to attach the person named in the 
writ, leaving it to the Court to say whether 
he ought to be discharged. Peterson v. 
M'Lennan, (1907) V.L.R., 94; 28 A.L.T., 
135 ; 12 A.L.R., 577. Cussen, J. 

Insolvency Act 1890 (No. 1102), sec. 149— 
Insolvency Act 1897 (No. 1513), s. 91— Insol- 
vency Rules 1898, Appendix of Forms, No. 64 
— Contempt of Court — Certificate — Compul- 
sory appearance — Refusal of insolvent to be 
sworn— Power of committal — Form of notice 
of motion to insolvent.] — See Contempt. 
In re Hickman, 31 A.L.T. (Supplement) 10 ; 
15 A.L.R. (C.N.), 21. 

" The County Court Rules 1891," rr. 333, 
334, 335, 343— Judgment that defendant 
deliver certain chattel to plaintiff — Warrant 
of delivery under r. 343 returned unsatisfied — 
Warrant of attachment, issue of — Jurisdic- 
tion.] — See County Court. Macrow & 
Sons Co. Proprietary Ltd. v. Davidson, 27 
A.L.T. (Supplement), 11 ; 12 A.L.R. (C.N.), 9. 

B. IN CRIMINAL MATTERS. 

Attachment of the person — Contempt of 
Court — Jurisdiction of Supreme Court ' — 
Criminal Charge — Publication of matters 
tending to prevent fair trial — Publication 
before committal for trial — Extent to which 
publication in a newspaper is lawful.] — See 
■ Contempt. Packer v. Peacock ; Burrell v. 
Peacock ; Smart v. Peacock, (1902) 13 C.L.R., 
577 ; 18 A.L.R., 70. 

Contempt of Court — Criminal trial — Dis- 
agreement of jury — Remand of prisoner — 
Petition against second trial — Presentation to 
Attorney-General — Publication in newspapers.] 
— On the trial of a prisoner charged with 
murder at the Supreme Court at Ballarat, the 
jury disagreed, and the prisoner was remanded 
for trial at the next sitting of the Court. 
While the prisoner was on remand his 
solicitors' managing clerk prepared a petition 
to the Attorney -General, assisted in obtaining 
signatures to it of some of the jurymen, sent 
it to the Attorney-General, and supplied a 
copy of it to a Ballarat newspaper in which 
extracts from the petition were published. 
The petition, which was signed by ten of the 



twelve jurymen, set out certain facts and 
matters which in their opinion justified an 
acquittal, and expressed their opinion that 
it was undesirable and unfair to put the 
prisoner on his trial a, second time on the 
same evidence. Held, a contempt as tending 
to defeat the due course of justice. In re 
Mann; In re King, (1911) V.L.R., 171; 
32 A.L.T., 156; 16 A.L.R., 598. Cussen, 
J. 

Contempt of Court — Pending criminal trial — 
Petition to Attorney-General in relation to — 
Whether a contempt.] — Semble. — Communica- 
tions to the Attorney-General in relation to a 
pending criminal trial constitute contempt of 
Court if they contain deliberate mis-state- 
ments or threats, or otherwise display an 
intention to defeat the due course of justice. 
In re Mann; In re King, (1911) V.L.R., 
171 ; 32 A.L.T., 156 ; 16 A.L.R., 598. 
Cussen, J. 

Contempt of Court — Nature of offence.] — 
See Contempt. Ex parte Dunn ; Ex parte 
Aspinall, (1906) V.L.R., 493 ; 28 A.L.T., 3 ; 
12 A.L.R., 358. 

Contempt of Court — Attempt to influence 
juryman — Juryman not yet empanelled for 
trial of accused person in whose favour at- 
tempt is made.] — See Contempt. Ex parte 
Dunn ; . Ex parte Aspinall, (1906) V.L.R., 
493 ; 28 A.L.T., 3 ; 12 A.L.R., 358. 

Criminal contempt — Attempt to interfere 
with the course of justice — Nature of offence.] 

— See Contempt. Ex parte Dunn ; Ex parte 
Aspinall, (1906) V.L.R., 493 ; 28 A.L.T., 3 ; 
12 A.L.R., 358. 

Inferior Court of Record — Power to commit 
for contempt.] — See Contempt. Ex parte 
Dunn ; Ex parte Aspinall, (1906) V.L.R., 
493 ; 28 A.L.T., 3 ; 12 A.L.R., 358. 

Contempt of Court — Extent of powers of 
Court of General Sessions — Justices Act 1890 
(No. 1105), sec. 184.] — See Contempt. Ex 
parte Dunn; Ex parte Aspinall, (1906) 
V.L.R., 493 ; 28 A.L.T., 3 ; 12 A.L.R., 358. 

General Sessions — Attempt to influence 
juryman — Contempt of Court — Power of 

3 



67 



AUSTRALIAN INDUSTRIES PRESERVATION. 



Supreme Court to punish.] — See- Contempt. 
Ex parte Dunn; Ex parte Aspinall, (1906) 
V.L.R., 493 ; 28 A.L.T., 3 ; 12 A.L.R., 
358. 

Supreme Court Act 1890 (No. 1142), sec. 
25 — Criminal causes and matters — Proceed- 
ings by way of certiorari in case of criminal 
Contempt.] — See Certiorari. Ex parte 
Dunn ; Ex parte Aspinall, (1906) V.L.R., 
584 ; 28 A.L.T., 72 ; 12 A.L.R., 418. 

Certiorari — Court of General Sessions — ■ 
Person committed for contempt by warrant of 
Chairman — No jurisdiction — Whether act 
judicial or administrative — Party aggrieved — 
Whether entitled ex debito justitiae.] — See 
Certiorari. Ex parte Dunn ; Ex parte 
Aspinall, (1906) V.L.R., 584 ; 28 A.L.T., 72 ; 
12 A.L.R., 418. 



costs of perusal of conveyance — Stipulation 
in contract of sale for payment by purchaser, 
legality of.] — See Vendor and Purchaser. 
JRe Rogers and Rodd's Contract, (1907) 
V.L.R., 511 ; 29 AX.T., 13 ; 13 A.L.R., 312. 

Insolvency — Surcharges — Auctioneer's fees 
— Commission allowed to auctioneer on 
advertising charges — Out of pocket expenses- 
Appendix of forms to Insolvency Rules 1898, 
Part 4.] — See Insolvency. In re McBain, 
32 A.L.T. 
(C.N.), 9. 



(Supplement), 2 ; 16 A.L.R. 



Justices Act 1890 (No. 1105), sec. 198— 
Contempt of Court — Wilful misbehaviour in a 
Court of Petty Sessions — 'Insulting language to 
witness after case decided.] — See Justices of 
the Peace. Westcott v. Lord, (1911) V.L.R., 
452 ; 33 A.L.T., 54 ; 17 A.L.R., 433. 

Justices Act 1890 (No. 1105), sec. 198— 
Contempt of Court — Misbehaviour not wit- 
nessed by Court itself — Formal adjournment 
of Court before occurrence of misbehaviour, 
effect of.] — See Justices of the Peace. 
Westcott v. Lord, (1911) V.L.R., 452 ; 33 
A.L.T., 54 ; 17 A.L.R., 433. 



AUSTRALIAN INDUSTRIES PRE- 
SERVATION ACT. 



ATTORNEY. 

See POWER OF ATTORNEY, SOLICITOR. 



ATTORNEY-GENERAL. 

-See COSTS; CROWN. 



AUCTION AND AUCTIONEER. 

Conveyancing Act 1904 (No. 1953), sec. 
4 (6)— Auction Sales Act 1890 (No. 1065), 
sees. 3, 29— Sale of land by Sheriff under H. 
fa.— Whether a " sale by auction "—Sheriff's 



Questions asked by Comptroller-General of 
Customs — Duty to answer — Prosecution pend- 
ing — Person interrogated not charged — Cor- 
poration — Australian Industries Preservation 
Act 1906-1909 (No. 9 of 1906— No. 26 of 1909), 
sec. 15b.] — When the Attorney-General has 
formally instituted a prosecution in the High 
Court in respect of an alleged offence against 
the Australian Industries Preservation Act 
1906-1909, the power conferred by section 15b 
is exhausted so far as regards the persons 
whom the Attorney-General alleges to have 
committed the offence for which he prosecutes, 
whether they are made parties to the suit or 
not, and that section therefore cannot be 
used for the purpose of a pending suit. So 
held by Griffith, C.J. and Barton, J. ( Isaacs, 
J., dissenting). Per Isaacs, J. — -The limit 
of the power conferred by section 15b is that 
where the Crown has arraigned before the 
Court a particular person on a particular 
charge, the power cannot be exercised as 
to that person in relation to that particular 
charge. Per Griffith, C.J. — When a public 
officer entrusted with a power to be used for a 
particular purpose avowedly seeks to use it 
for another and unauthorized purpose, the 
persons against whom it is sought to be so 
used may object to its exercise. Conse- 
quently, if questions are avowedly put for an 
unauthorized purpose the person interrogated 
is justified in refusing to answer. Semble 
per Griffith, C.J. — When a question demand- 



69 



BANKER AND CUSTOMER 



70 



ing a categorical answer is put under section 
15b, and is so framed as to include matters 
concerning which the questioner is not 
entitled, as well as matters concerning which 
he is entitled to ask, it is for the questioner, 
and not for the person questioned, to modify 
it so as to confine it within permitted limits. 
Held, also, per Griffith, C.J. and Barton, J. 
( Isaacs, J. dissenting), that sec. 15b does not 
authorize the Comptroller-General of Customs 
to require an incorporated company to answer 
questions. Melbourne Steamship Go. v. 
Moorehead, (1912) 15 C.L.R., 333 ; 18 A.L.R., 
533. 



AUTREFOIS ACQUIT. 

See CRIMINAL LAW. 



BAIL. 

See CRIMINAL LAW; FUGITIVE 
OFFENDERS; SERVICE AND 
EXECUTION OF PROCESS ACT. 



BAKERS AND MILLERS ACT. 

Bakers and Millers Act 1893 (No. 1332), sees. 
5, 6 — Baker — Inspector — Weighing Biead — 
Customer's Premises — Power to enter.] — 
An inspector appointed under sec. 5 of the 
Bakers and Millers Act 1893 weighed five 
loaves of bread taken by him from a baker's 
cart and one loaf obtained by him from the 
premises of a customer to whom it had been 
delivered by the baker ; and as the weighing 
in each case disclosed a deficiency in the 
weight of the loaves, the inspector laid an 
information against the baker for an offence 
under sec. 6 of the Act. Held, that as the 
Act gave no power to the inspector to enter 
on the premises of and weigh bread delivered 
to the customer, the weight had not been taken 
as to the minimum number of six loaves, in 
accordance with the provisions of the Act, 
and consequently no offence had been 
established. Brown v. Webb, (1912) V.L.R., 
347 ; 34 A.L.T., 63 ; 18 A.L.R., 320. F.C., 
Madden, C.J., Hodges and Hood, J J. (1912). 



BANKER AND CUSTOMER. 

Banker and customer — Cheques drawn with 
spaces afterwards fraudulently filled up — 
Liability of bank — Duty of customer — Negli- 
gence.] — The mere fact that a cheque is 
drawn with spaces which can be utilised for 
the purpose of fraudulent alteration, is not 
by itself any violation of duty by the customer 
to his banker. Five cheques were drawn on 
the defendant bank by the two plaintiffs 
and defendant M. to the debit of their joint 
account. After they were signed by the 
plaintiffs M. enhanced their apparent amounts 
by adding words and figures in the blank 
spaces to the left of those originally written. 
In a suit to recover the balance of account, 
the bank claimed to debit it with the enhanced 
amounts of the cheques, and the jury found 
that the bank could not, by the exercise of 
ordinary care and caution, have avoided 
paying the cheques as altered, and that 
the cheques were drawn by the plaintiffs 
in neglect of their duty to the bank. Held, 
that there was no evidence of negligence on 
the part of the respondents proper to be left 
to the jury. Scholefield v. Londesborough, 
(1896) A.C., 514, foUowed. Colonial Bank of 
Australasia v. Marshall, (1906) A.C., 559. 
Privy Council. 

Deposit receipt, security by way of — Con- 
tract to supply goods to Crown — Security for 
due performance of contract — Deposit receipt 
in name of servant of the Crown procured by 
contractor and delivered to such servant — 
Contractor's account with bank overdrawn — 
Contract duly performed — Whether amount of 
deposit receipt a debt due by Crown to con- 
tractor — Money had and received — Set-off 
of bank's claim against contractor, whether 
justifiable.] — In May, 1892, the Government 
of Victoria called for tenders for the supply 
of coal to certain Government Departments 
for the period 1st July, 1892, to 30th June, 
1893, one of the conditions being that ;— t- 
" Security will be required in cash Govern- 
ment debentures or bank deposit receipt in 
favour of the Secretary, Tender Board." 
P., acting for B., his undisclosed principal, 
tendered ; his tender was accepted, and two 
contracts were entered into between him and 



71 



BANKER AND CUSTOMEE. 



72 



" W. Kemp, Secretary to the Tender Board 
of Victoria for and on behalf of Her Majesty 
and Her Majesty's Government of the said 
Colony." The amount of the security in 
respect of the two tenders was £710. Each 
contract provided that in the event of the 
contractor failing to carry out the contract 
" the contract security money will in that 
case be absolutely forfeited " and each con- 
tained a condition that deductions might be 
made from the " security money " for certain 
breaches of the contract. P., who had an 
overdrawn account at the L. C. Bank, into 
which ho paid moneys received by him for the 
sale of coal on behalf of B., drew a cheque 
on that account for £710, and received in 
exchange for it from the bank a deposit 
receipt for £710 in favour of Kemp, repayable 
in twelve months with interest, and purport- 
ing to be not transferable. This deposit 
receipt P. handed to Kemp as security for and 
until the completion of the contracts, and 
received a receipt for it which he transmitted 
to B. Before the contract was completed 
the L. C. Bank suspended payment, and that 
suspension was continued until after the 
contracts were completed. On their comple- 
tion P. signed an order in Form H to the 
Regulations under the Audit Ac! 1890 
requesting Kemp to pay to R., an agent of B., 
the amount of the deposit receipt. R. pre- 
sented the order to Kemp and asked for the 
money. Kemp refused to pay it, but offered 
to hand the deposit receipt to R., who refused 
to accept it. In 1898 the Crown handed the 
deposit receipt to the L. C. Bank, which 
had then been reconstructed, and to which 
P. was still indebted to an amount exceeding 
the amount of the deposit receipt, receiving 
from the bank an indemnity, and the bank 
destroyed the deposit receipt. In 1906 P. 
by deed assigned and confirmed to B. all his 
claim against Kemp or the Crown in respect 
of the sum represented by the deposit receipt, 
and in 1910 notice of the assignment was 
given to the Crown. On a petition by B. to 
recover the amount of the deposit receipt 
from the Crown. Held, by Griffith, C.J. 
and Barton, J. ( Isaacs, J. dissenting) that 
on the due completion of the contracts the 
Crown was under a legal obligation to pay 



to P. a sum representing the amount of the 
deposit receipt, which P. could recover from 
the Crown by a petition as money had and 
received, and that by virtue of the assign- 
ment of 1906 B. was now entitled to recover 
that sum from the Crown. The King v. 
Brown, (1912) 14 C.L.R., 17 ; 18 A.L.R., 111. 

Savings bank — Lost pass-book — Payment 
by bank on forged order to person other than 
depositor before notice of loss given — Whether 
bank liable — Rules, General Order No. 26, rr. 

45, 48.] — Where the Commissioners of Sav- 
ings Banks, on production of a depositor's 
pass-book and of a forged order in his name, 
pay out to a third person moneys standing 
to the credit of the depositor, the loss falls 
on the depositor by reason of the provisions 
of the Savings Banks Rules, unless, prior to 
payment, notice of the loss of the pass-book 
has been given. Levy v. The Commissioners 
of Savings Banks, (1906) V.L.R., 299; 27 
A.L.T., 171 ; 12 A.L.R., 140. F.C. Holroyd, 
A.C.J., a'Beckeet and Hodyes, J J. (1906). 

" The manager " of a bank, meaning of.] — 

The expression " the manager " of a bank 
held to mean the manager of a branch of 
the bank. See Union Bank of Australia 
Ltd. v. Whilelaw, (1906) V.L.R., 711; 2S 
A.L.T., 17 ; 12 A.L.R., 393. 

Fraudulent Preference — Transfer with intent 
to defeat or delay creditors — Desire to protect 
sureties — Banker and customer — Payments 
made in the ordinary course of banking busi- 
ness — Insolvency Act 1890 (No. 1105), ss. 37 
(ii.), 73.] — M. an hotelkeeper bought an hotel 
and in order to carry on the business obtained 
an overdraft from a bank which was guaran- 
teed by two sureties to the extent of £450. 
He was not successful in the business and with, 
the intention made known by him to the bank 
of protecting the sureties but with the belief,, 
also made known by him to the bank, that 
he was still solvent he sold the hotel and busi- 
ness which Were substantially all his assets.. 
The overdraft at this time amounted to £57& 
The purchase money consisted of £350 in 
cash and three promissory notes of £200' 
each. One of the notes was by M.'s desire 
and with the consent of the bank discounted 



73 



BILLS OF SALE. 



74 



and after payment of £140, the amount due 
to one of M.'s creditors, the balance of the 
proceeds together with the £350 was paid 
into M.'s account in the ordinary way and 
the remaining two notes were lodged with 
the bank for collecticm. Cheques drawn on 
M.'s account for small amounts were paid 
and another of the notes was discounted 
and after payment of £57, the amount due 
to another of M.'s creditors, the balance of 
the proceeds was paid into M.'s account. 
The bank discounted the remaining note 
paid the proceeds into M.'s account, thereby 
extinguishing the overdraft, and released the 
sureties. Within three months of the pay- 
ment of the purchase money into the bank, 
M.'s estate was compulsorily sequestrated. 
The debts remaining unpaid amounted to 
£335 and the assets were practically nothing. 
Held, that the payment to the Bank was 
neither a fraudulent preference nor a transfer 
made with intent to defeat or delay creditors. 
Be Mills, 58 L.T., 871, followed. M'Donald 
v. Bank of Victoria, (1906) V.L.R., 199; 
27 A.L.T., 177; 12 A.L.R., 120. a' Beckett, 
J. (1906). 



BILL OF COSTS. 

See COSTS. 



BARRISTER AND SOLICITOR. 

See. COUNSEL, SOLICITOR. 



BASTARDY. 

See MAINTENANCE AND MAINTENANCE 
ORDERS. 



BENEFICIARY. 

See WILL. 



BEQUEST. 

See WILL. 



BETTING. 

GAMING AND WAGERING ; POLICE 
OFFENCES ACTS ; STREET BETTING 
SUPPRESSION ACT. 





BILLS OF SALE. 




I. 


Filing 


.. 74 


II. 


Caveats 


.. 75 


III. 


Foreign Bills of Sale 


.. 76 


IV. 


Stock Mortgage 

I. — Filing. 


.. 76 



Bill of sale given by way of security — Con- 
sideration — Statement of in notice of intention 
to Hie, whether sufficient — Instruments Act 
1890 (No. 1103), sees. 134, 135, Schedule V.]— 
A bill of sale given by way of security cannot 
be attacked on the ground that the con- 
sideration has been wrongly stated in the 
notice of intention to file, so long as the 
statement of the consideration given in such 
notice is substantially accurate. O' Connor 
v. Quinn, (1911) 12 C.L.R., 239 ; 17 A.L.R., 
345. H.C., Griffith, C.J., Barton and 
O'Connor, J J. 

Instruments Act 1890 (No. 1103), sees. 134, 
135, Schedule V. — Notice of intention to file — 
Statement of consideration, whether sufficient 
— Past debt.] — A. in 1908 gave to B. a bill 
of sale over certain chattels and » mortgage 
of his interest under a. will to secure the 
advance of £800 then made to him by B. 
with interest thereon, the principal being 
made repayable under each instrument 
on a certain date in 1911. The bill of sale 
contained a provision that in case any caveat 
should be lodged against the filing thereof 
it should be lawful for B. to sell the chattels 
and that as the right should arise under the 
bill of sale to sell the chattels the whole of the 
principal and other moneys secured and for 
the time being due and payable under the 
bill of sale should immediately become ' due 
payable and recoverable." Caveats were 
lodged against the filing of the bill of sale 
and it was not filed and became void. Three 
months afterwards A. gave B. » second bill 
of sale which recited that A. was indebted 
to B. in the sum of £800 and that " the same 
is how due and owing " and that A. had 
requested B. not to press for the immediate 



75 



BILLS OF SALE. 



76 



repayment thereof which request B. had 
agreed to grant upon A. giving the bill of 
sale. The consideration was stated as being 
" the sum of £800 now due and owing " by 
A. to B., and the time for repayment of the 
principal was the same date as under the 
first bill of sale and mortgage. In the notice 
of intention to file the second bill of sale, the 
consideration was stated under the sub- 
heading " Past Debt " as being " the sum 
of £800 now due and owing by A. to B. 
and in consideration of B. agreeing not to 
press for immediate payment thereof." The 
second bill of sale was subsequently filed. 
Held, that the notice of intention to file was 
sufficient and that the second bill of sale 
was valid. O'Connor v. Qumn, (1911) 12 
C.L.R., 239 ; 17 A.L.R., 345. H.C., Griffith, 
G.J., Barton and O'Connor, J J. 

Instruments Act 1890 No. 1103), sees. 133, 
144 — Declarations and Affidavits Act 1890 
(No. 1191), sec. 6— Bill of Sale— Registration— 
—Affidavit verifying Bill— Affidavit of Re- 
newal — Such affidavits to be made before 
Commissioners for taking Declarations and 
Affidavits— Affidavits — Commissioners of the 
Supreme Court — Restriction of authority.] — 
The filing or the renewing of a, bill of sale 
under the Instruments Act 1890 is not a 
" proceeding in the Supreme Court " within 
the meaning of those words in sec. 6 of the 
Declarations and Affidavits Act 1890. Conse- 
quently, the affidavits required to be filed 
under sections 133 and 144 of the Instruments 
Act 1890, must be sworn before a Commis- 
sioner for taking declarations and affidavits 
appointed under the Declarations and Affi- 
davits Act 1890, and not before » Commis- 
sioner of the Supreme Court for taking 
affidavits. Commissioners of the Supreme 
Court for taking affidavits are restricted 
by their commission to matters connected 
with the Supreme Court, except where 
special provision is made by Act of Parlia- 
ment. Wrigglesworth v. Collis ; Spencer, 
claimant, 33 A.L.T. (Supplement), 13 ; 18 
A.L.R. (C.N.), 6. Judge Moule (1912). 

II. — Caveats. 

Instruments Act 1890 (No. 1103), sec. 142— 
Bill of sale — Removal of caveat — Summons, 



form of.] — An objection, that the summons in 
an application for an order for the removal 
of a caveat lodged against the filing of a bill 
of sale did not call upon the caveator to show 
cause why the caveat should not be removed, 
was overruled. In re Coburn, 28 A.L.T. 
(Supplement), 3 ; 12 A.L.R. (C.N.), 17. 
Judge Eagleson (1906). 

Instruments Act 1890 (No. 1103), sec. Ma- 
Bill of sale — Caveat — Tender of amount due 
to caveator — Refusal to accept — Removal of 
caveat — Jurisdiction of Judge to order.] — 
Where the grantor of a bill of sale had 
tendered to a caveator the amount of his 
debt, which the caveator refused to accept, 
Held, that the Judge had jurisdiction under 
sec. 142 of the Instruments Act 1890 to order 
the removal of the caveat. In re Coburn, 28 
A.L.T. (Supplement), 3 ; 12 A.L.R. (C.N.), 
17. Judge Eagleson (1906). 

III. — Foreign Bills of Sale. 

Bill of Sale — Given and registered in New 
South Wales over goods in New South Wales 
— Goods subsequently brought to Victoria — 
Bill of sale valid in Victoria.] — Taylor v. Lover 
grove ; Original Mont de Piete Ltd., claimant, 
18 A.L.R. (C.N.), 22. Hodges, J. (1912). 

IV. — Stock Mortgage. 

Instruments Act 1890 (No. 1103), sees. 169, 
170, 171— Stock mortgage—" Other chattels," 
meaning of.] — The words " other chattels 
on any station in Victoria " in sees. 169, 170 
and 171 of the Instruments Act 1890 include 
all other chattels whatever may be their 
nature, and whatever be the purpose for which 
they are used on such station. Anderson v. 
Carter, 20 V.L.R., 246; 16 A.L.T., 49, 
distinguished. International Harvester Co. 
of America v. Eowe, (1909) V.L.R., 244; 
30 A.L.T., 201 ; 15 A.L.R., 212. F.C., 
Madden, C.J., a' Beckett and Hood, J J. 



BELLS OF EXCHANGE AND 
PROMISSORY NOTES. 

Promissory note — Liability of indorser— 
Order in time of indorsement — Indorsement by 
payee — Holder in due course — Estoppel— 



77 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 



78 



Instruments Act 1890 (No. 1103), sees. 21, 
38, 55, 56, 57 and 90.1 — A promissory note 
made by A. in favour of B., bore the indorse- 
ments " B. without recourse," " C," " B," 
above one another and in that order. It 
appeared that C. took the note, which had 
already been signed by A., and was intended 
to be used by way of renewal of a promissory 
note and indorsed in the same way, to B., 
who refused to take it unless C. herself first 
endorsed it. C. accordingly signed her name 
on the back of the note with the intention 
of endorsing it, and of being liable as an 
indorser to B., and then B. took it. B. sub- 
sequently placed his indorsements on the 
note in the order in which they appeared. 
In an action by B. against C. on the note. 
Held, that the indorsements were in the order 
which they were intended by C. to appear, 
and that C. was estopped from denying that 
she was an indorser or that B. was a, holder 
in due course. Held, therefore, that C. 
was liable to B. either as an actual indorser 
or as having under sec. 57 of the Instruments 
Act 1890 incurred the liability of an indorser. 
Semble, per Griffith, C.J. — The promissory 
note was a " bill wanting in a material 
particular " which the persons in possession 
of it were entitled to fill up under sec. 21 
of the Instruments Act 1890. Steele v. 
M' Kinlay, 5 A.C., 754, discussed. Ferrier v. 
Stewart, (1912) 15 C.L.R., 32 ; 18 A.L.R., 
262. H.C., Griffith, C.J., Barton and Isaacs, 
JJ. 

(The corresponding sections of the Com- 
monwealth Bills of Exchange Act are sees. 
25, 43, 60, 61, 62 and 96). 

Promissory note — Material alteration, what 
is — Place of payment, what is — Instruments 
Act 1890 (No. 1103), sec. 65 (2).]— A promis- 
sory note, when made, contained nothing 
indicating the place of payment other than 
the printed words " Payable at " followed 
by a blank. After delivery and without the 
authority or assent of the maker, the blank 
was filled in with the words and figures "15 
Queen's Bridge Street, Melbourne." In pro- 
ceedings against the maker for money due 
on. the note. Held, that it had been materi- 
ally altered, and was accordingly avoided 



as against the maker. Semble, that it was an 
alteration of the " place of payment " within 
the meaning of sec. 65 (2) of the Instruments 
Act 1890. Sims v. Anderson, (1908) V.L.R., 
348 ; 29 A.L.T., 241 ; 14 A.L.R., 210. 
Cussen, J. 

Negotiable instrument — Material alteration, 
nature of — Instruments Act 1890 (No. 1103), 
sec. 65 — Enumeration of material alterations, 
whether exhaustive.] — The enumeration of 
material alterations in section 65 of the 
Instruments Act 1890 is not exhaustive. 
An alteration is a material alteration if it 
makes the instrument operate differently. 
Sims v. Anderson, (1908) V.L.R., 348 ; 29 
A.L.T., 241 ; 14 A.L.R., 210. Cussen, J. 
(1908) 

Banker and Customer — Cheques drawn with 
spaces afterwards fraudulently filled up — 
Liability of bank — Duty of customer — Negli- 
gence.] — See Banker and Customer. Col- 
onial Bank of Australasia v. Marshall, 
(1906) A.C., 559. 

Sale of land — Principal and agent — Deposit 
payable to agent on named day — Payment to 
agent by way of promissory note — Authority 
to receive.] — Where the conditions of sale 
provided that " the purchaser shall on 
1/10/1907 pay to the vendor's agent a deposit 
of one hundred pounds of the purchase 
money," Held, that the agent had no authority 
to receive payment by way of promissory note. 
Walder v. Cutts, (1909) V.L.R., 261; 31 
A.L.T., 19 ; 15 A.L.R., 352. F.C., Hodges, 
Hood and Cussen, JJ. 

Money-lender — Re-opening transactions — 
" Agreement or security " — Money Lenders 
Act 1906 (No. 2061), sec. 4.]— -See Money 
Lenders Act. Wilson v. Moss, 8 C.L.R., 
146 ; 15 A.L.R., 131. 

Instruments Act 1890 (No. 1103), sees. 92, 
93 — " Resides " meaning of, in sec. 93 — A 
writ under the Act may be served on a person 
temporarily resident in Victoria, who is per- 
manently domiciled and resident in another 
State.]— Philips v. Cooper, (1906) V.L.R., 
31 ; 12 A.L.R. (C.N.), 5. a'Beckett, J. 



79 



BOOK DEBTS. 



80 



Bill of exchange — Action upon, under the 
Instruments Act 1890— Writ— Service out of 
jurisdiction — Indorsement by Prothonotary — 
Necessity for Judge's order for such indorse- 
ment—Instruments Act 1890 (No. 1103), sec. 
92 — Service and Execution of Process Act 
1901 (No. 11 of 1901), sees. 5, 8.]— Sternberg 
v. Egan, 18 A.L.R. (C.N.), 20. Hood, J. 
(1912). 

Stamps Act 1890 (No. 1140), sec. 81, Third 
Schedule— Stamps Act 1892 (No. 1274), 
Schedule — " Promissory note " — Mortgage de- 
benture charging property and providing 
means for enforcement of security.] — See 
Stamps Acts. In re Stamps Acts, (1906) 
V.L.R., 364; 27 A.L.T., 204; 12 A.L.R., 
186. 

Insolvency Act 1890 (No. 1102), sec. 37— 
Insolvency Act 1897 (No. 1513), sec. 106 (2)— 
Sequestration — Petitioning creditor's debt — 
Current promissory note.] — See Insolvency. 
David v. Malouf, (1908) 5 C.L.R., 749 ; 14 
A.L.R., 297. 



BIRTH 

See EVIDENCE. 



BOND 



See EXECUTORS AND ADMINISTRA- 
TORS ; WILL. 



BOOK DEBTS 

Contract — Interpretation — Agreement to de- 
posit time-payment agreements as security — 
Depositor allowed to collect debts due — De- 
posit of additional time-payment agreements 
equal in value to those discharged by payment 
— Equitable assignment — Book Debts Act 
1896 (No. 1424), sees. 2, 3— Non-registra- 
tion.] — J., who had in the ordinary course of 
his business sold furniture under time-pay- 
ment agreements, in consideration of advances 
made to him by M. agreed in writing to deposit 
with M. as security for such advances certain 
time -payment agreement forms signed and 
complete which were to remain the property 



of M. until the full amount of the advances 
with interest, had been repaid to him ; and 
it was further provided that if any of the 
time -payment .agreements should be fully 
paid up by the " hirer," J. should replace 
them with others of equal value. In pur- 
suance of the agreement J. delivered to M. 
the time-payment agreement forms. The 
agreement between J. and M. was not regis- 
tered under the Book Debts Act 1896. The 
estate of J. was sequestrated. Held, that 
the transaction gave to M. not a mere security 
over and right to retain the documents 
deposited, but amounted to an equitable 
assignment to him of the debts due to J. 
under the time-payment agreements, and 
that the assignment was void for want of 
registration under the Book Debts Act 
1896. In re Jones, (1906) V.L.R., 432; 
27 A.L.T., 230; 12 A.L.R., 279. F.C., 
a 1 Beckett, A.-C.J., Hodges and Chomley, 
JJ. (1906). 

Book Debts Act 1896 (No. 1424), sec. 2 (a)— 
— " Business," meaning of— Engagement in 
particular kind of transaction with intention 
to continue therein — Isolated transaction.] — 

The engagement in a particular kind of 
transaction continuously, with the intention 
of continuing that line of transaction for 
the purpose of profit, is " business " within 
the meaning of the Book Debts Act 1896. 
Engagement in a transaction in one particular 
instance without any intention that it shall 
be the first of several similar transactions 
would not be " business " within the meaning 
of the Act. Schroder v. Hebbard, (1907) 
V.L.R., 107 ; 29 A.L.T., 1 ; 13 A.L.R., 141. 
Cussen, J. 

Book Debts Act 1896 (No. 1424), s. 2 (a) 
— " Business," meaning of — Three contracts 
for the supply of firewood entered into at 
different times.] — A. entered into a contract 
to supply firewood to a hospital. The per- 
formance of the contract was not completed 
at once in one single specific act but extended 
over some time. Prior to this A. had had 
two other contracts for the supply of firewood 
to the hospital, but there was no evidence 
as to the time at which these contracts 
were had or as to what their nature was or 



81 



BOOK DEBTS. 



82 



whether they were isolated transactions or 
extended over some time. A. assigned the 
moneys due under the first-mentioned con- 
tract, but the assignment was not registered 
tinder the Book Debts Act 1896. On the 
question of the validity of the assignment 
being raised before Justices, they decided 
that the debt had not become due in connex- 
ion with any trade or business, and therefore 
that the assignment did not require regis- 
tration. Held, that it was open to Justices 
to take a view of the facts which would 
justify them in holding that the debt had 
not become due in connexion with any trade 
or business. Schroder v. Hebbard, (1907) 
V.L.R., 107 ; 29 A.L.T., 1 ; 13 A.L.R., 141. 
Cussen, J. 

Equitable assignment of future fund — 
Registration— Book Debts Act 1896 (No. 1424), 
sec. 2— Instruments Act 1890 (No. 1103), 
Part VI.] — A., a cattle salesman, sold cattle 
on behalf of a principal to B., advancing the 
purchase money himself and receiving from 
B. a promissory note for the amount of the 
advance, and also entering into a verbal 
agreement with B. that B. should re-sell 
the cattle through A., who might repay him- 
self the amount of the advance out of the 
purchase money. Quaere, (per Griffith, C.J., 
Barton and O'Connor, J J.) whether the 
agreement as to the re-sale of the cattle 
through A. amounted to an assignment to 
A. of the purchase money which might be 
paid on the re-sale of the cattle, and, if so, 
whether the agreement should have been in 
writing and registered under the Booh Debts 
Act 1896. Per Isaacs, J. -. The agreement 
amounted to an equitable assignment and 
did not require registration either under the 
Instruments Act 1890 or the Book Debts Act 
1896. Muntz v. Small, (1909) 8 C.L.R., 262 ; 
15 A.L.R., 162. 

Book debt — Money to become payable by 
agent to principal on sale of goods — " On 
account of or in connection with . - . 
business "—Book Debts Act 1896 (No. 1424), 
sees. 2, 3.] — Money which will become 
payable by an agent to his principal, a trader, 
as purchase money on the sale of goods 
of the principal consigned to the agent for 



sale, constitutes a debt to become due by the 
agent to the principal, but not a debt on 
account of or in connection with the business 
of the principal within the meaning of the 
Book Debts Act 1896, and is therefore not a 
" book debt " within the meaning of that 
Act. Shackell v. Howe, Thornton & Palmer, 
(1909) 8 C.L.R., 170 ; 15 A.L.R., 176. H.C., 
Griffith, G.J., O' Connor and Isaacs, J J. 

Book debt — Assignment — Future debt — 
Money to become payable by agent to principal 
on sale of goods — Book Debts Act 1896 (No. 
1424), sees. 2, 3.] — A woolgrower consigned 
wool to a firm of woolbrokers to be sold. 
Before the wool was sold the woolgrower 
bought sheep from A., and in payment for 
them gave A. a written order directing the 
firm to pay to A. a certain sum when his wool 
should be sold, and to deduct that sum from 
the proceeds of the sale of the wool. The 
wool having been sold, the woolgrower 
became insolvent, and subsequently the 
firm paid to A. the sum as directed by the 
order. In an action by the trustee of the 
woolgrower against A. to recover the money 
so paid. Held, that the order given by the 
woolgrower to A. "was an assignment to A. 
to the extent therein mentioned of the debt, 
which was not invalidated by its non-regis- 
tration under the Book Debts Act 1896, and, 
therefore, that the trustee was not entitled 
to recover. Shackell v. Howe, Thornton & 
Palmer, (1909) 8 C.L.R., 170 ; 15 A.L.R., 
176. H.C., Griffith, C.J., O'Connor and 
Isaacs, J J. 

Assignment — Debt arising by deposit of 
Savings Bank pass-book and order for pay- 
ment out of money in bank — Debt due in 
connection with business carried on by 
assignor— Book Debts Act 1896 (No. 1424), 
sec. 2 (a).] — A. having entered into a contract 
with the Commonwealth to erect a Post Office 
and being required by the conditions of 
tendering to give security for the due and 
proper performance of the contract deposited 
with the proper officer of the Commonwealth 
a Savings Bank pass-book, showing an amount 
of money to his credit together with a duly 
signed order for withdrawal by means of 
which the said amount might be withdrawn 



83 



BOUNDARIES— BURDEN OF PROOF. 



84 



from the Savings Bank. By means of an 
H. order he authorized the Commonwealth 
to hand over the pass-book and withdrawal 
order to B. and notice of the giving of the H. 
order was duly given to the Commonwealth 
by B. Held, that the H. order constituted 
a good assignment of the debt due in respect 
of the deposit by the Commonwealth to A. 
but that it was not an assignment of a debt 
within the meaning of the Book Debts Act 
1896. Cox u. Smail, (1912) V.L.R., 274; 
18 A.L.R., 299. Cussen, J. 



BREAD 

See BAKERS AND MILLERS ACT. 



BOUNDARIES 

Boundary of States — Letters Patent creating 
province — Degree of longitude stated as 
boundary — Implied authority of Executives to 
locate.] — See Commonwealth of Australia 
Constitution. State of South Australia v. 
Victoria, (1914) A.C., 283. 

The Constitution (63 & 64 Vict. c. 12), sec. 
75 — Original jurisdiction of High Court — 
" Matters " between States, what are — Dispute 
as to boundary between two States — Boundary 
fixed by Act of Imperial Parliament.] — See 
Commonwealth op Australia Constitu- 
tion. State of South Australia v. State of 
Victoria, (1911) 12 C.L.R., 667 ; 17 A.L.R., 
206. 



BURDEN OF PROOF 

See also, Evidence. 

Burden of proof — Land held in fee simple 
to be used only for a public racecourse — Mem- 
ber of public claiming right to enter land — 
Victoria Racing Club Act 1871 (No. 398), sees. 
7, 20.] — See Evidence. Oolman v. Miller, 
(1906) V.L.R., 622 ; 28 A.L.T., 35 ; 12 
A.L.R., 386. 



Patent — Burden of proof — Want of novelty 
by reason of prior sales — Identity of articles 
so sold with articles made in accordance with 
patent — Identity proved by circumstantial 
evidence only — Facts within exclusive know- 
ledge of other party, failure to prove.] — See 
Evidence. Gullen v. Welsbach Light Co. 
of Australasia Ltd., 4 C.L.R. 990 ; 13 A.L.R., 
194. 

Evidence — Burden of proof — Husband and 
wife living in same house — Wife tenant of 
house — Possession of goods in the house — 
Possession prima facie evidence of title.] — See 
Evidence. McKenzie v. Balchin ; McKen- 
zie (claimant), (1908) V.L.R., 324; 29 
A.L.T., 246 ; 14 A.L.R., 238. 

Husband and wife — Maintenance — Former 
marriage — Husband not heard of for more 
than seven years — Proof of invalidity of second 
marriage — Onus — Marriage Act 1890 (No. 
1166), sec. 46.] — See Evidence. Ousley v. 
Ousley, (1912) V.L.R., 32; 33 A.L.T., 155; 
18 A.L.R., 5. 

Infant — Custody of — Father's rights — Child 
in Custody of others — Abdication — Welfare of 
child — Burden of proof.] — See Infant. 

Goldsmith v. Sands, 4 C.L.R., 1648 ; 13 
A.L.R., 601. 

Local Government Act 1903 (No. 1893), sec. 
455,456 — Contract — Consideration — Tender — 
Deposit — Forfeiture — Withdrawal of tender 
before acceptance— Mode of making contract 
— Burden of proof.] — See Contract or 
Agreement. Stafford v. South Melbourne, 
Mayor, &c. of, (1908) V.L.R., 584; 30 
A.L.T., 43; 14 A.L.R., 464. 

Defamation — Privileged occasion — Pre- 
sumption that speaker had a proper motive — 
Burden of proof.] — See Defamation. Ronald 
v. Harper, (1910) 11 C.L.R., 63; 16 A.L.R., 
415. 

Burden of proof — Evidence of negligence — 
Level crossing on railway — Neglect of engine- 
driver to whistle — Duty of persons using road 
to look for approaching trains.] — See Negli- 
gence. Fraser v. Victorian Railways Com- 
missioners, 8 C.L.R., 54 ; 15 A.L.R., 93. 



85 



BUTCHERS AND ABATTOIRS ACT. 



86 



Police Offences Act 1890 (No. 1126), sees. 
49, 51 — " Business," assisting in conducting — 
Club incorporated as company — Shareholders 
in company members of Club — Totalisator — 
Whether conducted as a business — Percentage 
of stakes retained — Burden of proof — Moneys 
received as consideration for an assurance 
to pay moneys on contingencies relating to 
horse races.] — See Gaming and Wagering. 
O'Donnell v. Solomon, (1906) V.L.R., 425; 
27 A.L.T., 237 ; 12 A.L.R., 283. 

Lotteries Gaming and Betting Act 1906 (No. 
2055), sec. 38 — Application for declaration 
that premises are a common gaming house — 
Affidavit of police officer showing reasonable 
grounds for suspecting — Suspicion, whether in 
mind of officer or Court — Prima facie case, 
how established — Prima facie case, how 
answered.] — See Gaming and Wagering. 
In re Lotteries Gaming and Betting Act 1906 ; 
In re Shanghai Club ; In re Ah Pow ; Ex 
•parte Gleeson, (1907) V.L.R., 463 ; 29 A.L.T., 
31 ; 13 A.L.R., 360. 

Licensing Act 1890 (No. 1111), sees. 134, 
135— Licensing Act 1906 (No. 2068), sec. 78 
(2) — Unlawful sale of liquor — Prima facie 
evidence of sale of liquor — Presence of two 
or more persons on licensed premises — Onus 
of proof as to lodgers, &c] — See Evidence. 
Biggs v. Cunningham, (1907) V.L.R., 344 ; 
29 A.L.T., 14 ; 13 A.L.R., 244. 

Licensing Act 1890 (No. 1111), sees. 134, 
135— Licensing Act 1906 (No. 2068), sec. 78 
(2) — Unlawful sale of liquor — Evidence — 
Presence on licensed premises of two or more 
persons — Onus of proof as to bona fide lodgers, 
&C.] — See Licensing. Cahill v. Millett, 
(1907) V.L.R., 605; 29 A.L.T., 16; 13 
A.L.R., 375. 

Secret Commission Prohibition Act 1905 
(No. 1974), sees. 2, 14 — Giving money to agent 
without principal's knowledge — Burden of 
proof.] — See Criminal Law. Rex v. Steven- 
son, (1907) V.L.R., 475 ; 29 A.L-T., 62 ; 13 
A.L.R., 383. 

Health Act 1890 (No. 1098), sees. 53, 54— 
Unwholesome food — Prosecution for having 
such food under control for purpose of sale 
for human consumption — Prima facie case 



proved by informant — Burden of proof that 
food not intended for sale — Effect of state- 
ments made by defendant elicited on cross- 
examination of informant's witnesses.] — See 
Health (Public). Mellis v. Jenkins, (1910) 
V.L.R., 380 ; 32 A.L.T., 36 ; 16 A.L.R., 430. 

Factories and Shops Act 1905 (No. 1975), 
sec. 134 — Factories and Shops Act 1905 (No. 
2) (No. 2008), sees. 22, 24— Weekly half- 
holiday — Whether time of closing on Wednes- 
day 1 o clock or 6 o clock — Choice of shop- 
keeper, burden of proof of.] — See Factories 
and Shops Acts. Billingham v. Gaff, (1907) 
V.L.R., 691 ; 29 A.L.T., 159 ; 13 A.L.R., 
474. 



BUTCHERS AND ABATTOIRS ACT 

Butchers and Abattoirs Act 1890 (No. 
1069), sec. 26 — Slaughtering cattle without 
licence — " Contrary to the provisions of this 

Act."] — The words " contrary to the pro- 
visions of this Act " in section 26 of the 
Butchers and Abattoirs Act 1890 mean " in 
circumstances other than those in which this 
Act allows slaughtering." They do not mean 
" contrary to any direct prohibition in this 
Act." Accordingly, although the Act con- 
tains no direct prohibition against slaughter- 
ing elsewhere than in an abattoir or without 
a licence, the act of slaughtering without a 
licence or in any improper place is a penal 
offence. Dugdale v. Charles Dight ; Same, 
v. West ; Same v. George Dight, (1906) 
V.L.R., 783 ; 28 A.L.T., 186 ; 13 A.L.R., 
15. Chomley, J. (1907). 

Butchers and Abattoirs Act 1890 (No. 
1069), sec. 26 — Slaughtering cattle without 
licence — Mens rea.] — In order to establish 
an offence under sec. 26 of the Butchers and 
Abattoirs Act 1890, it is not necessary to' 
prove mens rea. Dugdale v. Charles Dight ; 
Same v. West ; Same v. George Dight, (1906) 
V.L.R., 783 ; 28 A.L.T., 186 ; 13 A.L.R., 
15. Chomley, J. (1907). 

Butchers and Abattoirs Act 1890 (No. 
1069), sec. 26 — Slaughtering cattle without 
licence — Several persons joining in same act 
— Whether offence severable.] — Prima facie 



87 



BY-LAWS. 



88 



two or more persons who join in the commission 
of an offence are severally liable, unless the 
words of the Act creating the offence are such 
as to compel the Judge to hold that it is 
joint. Accordingly, where two or more 
persons join in committing an offence under 
section 26 of the Butchers and Abattoirs Act 
1890, each is separately and severally liable. 
Dugdale v. Charles Dight ; Same v. West ; 
Same v. George Dight, 1906 V.L.R., 783 ; 28 
A.L.T., 186 ; 13 A.L.R., 15. Chomley, J. 
(1907). 



BY-LAWS 

I. Validity 
II. Interpretation 
III. Legal Proceedings ; Presump- 
tions and Inferences 



87 
91 

92 



I. Validity. 

By-law made under statutory safeguards — 
Validity of, whether Court may consider — 
Victoria Racing Club Act 1871 (No. 398), sees. 
14, 15, 17.] — The Court is not deprived of its 
power to determine the question of the 
validity of a by-law by the fact that the 
Statute under which the by-law is made 
provides (a) that no by-law shall be of any 
force or effect until the expiration of one 
month after a copy has been sent to the Chief 
Secretary ; (6) that at any time within such 
month the Governor-in-Council may disallow 
such by-law, and (o) that the Governor-in- 
Council may at any time by » six months' 
notice published in the Government Gazette 
repeal any by-law made under the Statute. 
Colman v. Miller, (1906) V.L.R., 622; 28 
A.L.T., 35 ; 12 A.L.R., 386. F.C., Hodges, 
Hood and Chomley, J J. (1906). 

By-law — Validity — Repugnancy to Act of 
Parliament.] — Where by an Act of Parliament 
the doing of an Act with a fraudulent intent 
is made punishable, a by-law imposing a 
penalty on the doing of the same act irres- 
pective of the intent is repugnant to the Act 
of Parliament and therefore invalid. London 
and Brighton Railway Co. v. Watson, 3 
C.P.D., 429, followed. Borsum v. Smith, 



(1907) V.L.R., 72; 28 A.L.T., 89; 12 
A.L.R., 495. F.C., Hodges, Hood and 
Chomley, JJ. (1906). 

Mildura Irrigation Trusts Act 1895 (No. 
1409), sec. 69 — Regulation — Regulation im- 
posing penalty upon person without reference 
to his connection with forbidden Act — Power 
to make such regulation.] — A regulation 
which purports to impose a penalty on a 
person without reference to his connection 
with an act that is forbidden by the regulation 
as framed, and might impose liability on a 
person even though he has done his best to 
prevent a breach of the regulation, is invalid, 
unless the power of making such a regulation 
is exercised by Parliament, or under some 
enactment of Parliament whereby this 
exceptional power is given to a subordinate 
body either expressly or by necessary im- 
plication. Brown v. Burrow, 30 A.L.T., 102 ; 
14 A.L.R., 460. Cussen, J. (1908). 

" Bookmaking " on racecourse — How far 
lawful — By-law regulating " bookmaking "— 
Validity of.] — Per Hood, J.— Provided that 
in doing so he violates no Statute law nor 
interferes unduly with others, any person 
lawfully on a, racecourse may make wagers 
either privately with his friends or publicly 
as a, business. Public betting as a business 
may become a, nuisance or an annoyance, 
and by-laws designed to prevent this should 
be supported if possible, but, like all by-laws 
interfering with private rights, they must be 
reasonable and certain. Colman v. Miller, 
(1906) V.L.R., 622; 28 A.L.T., 35; 12 
A.L.R., 386. 

By-law — Validity — Unreasonableness and 
uncertainty — Regulation of " bookmaking " 
on public racecourse — Victoria Racing Club 
Act 1871 (No. 398), sees. 7, 20.]— Certain land 
was by Statute vested in an officer of a racing 
club to be held only for the purpose of its 
being maintained and used for a public race- 
course, and the committee of the club was 
empowered by such Statute to make by-laws 
for regulating the admission of persons to the 
land, the expulsion of persons from the land, 
the rates and charges to be paid for admission, 
and for the general management of the race- 



BY-LAWS. 



90 



course. Purporting to act under this power 
the committee made a by-law forbidding 
any person to carry on upon any part of 
the land the vocation of a bookmaker unless 
he was approved of by the committee, and 
paid to the committee in advance such regis- 
tration fee as the committee should from 
time to time determine, and unless he 
complied with such directions as might from 
time to time be given by or on behalf of the 
committee. A person offending against the 
by-law incurred a penalty of £5, and was 
liable to be removed from the land. Held, 
that, in the method prescribed for fixing 
fees, and in its requirements as to the ap- 
proval of the committee, and as to com- 
pliance with directions, the by-law was 
unreasonable and uncertain, and was there- 
fore invalid. Colman v. Miller, (1906) 
V.L.R., 622 ; 28 A.L.T., 35 ; 12 A.L.R., 386. 
F.C., Hodges, Hood and Chomley, J J. (1906). 

Local Government Act 1903 (No. 1893), sec. 
197 — By-law — Validity — Power to regulate or 
control — Power to prohibit.] — See Local 
Government. Co-operative Brick Co. Pty. 
Ltd. v. Hawthorn, Mayor &c. of City of, 
(1909) 9 C.L.R., 301 ; 15 A.L.R., 479. 

Local Government — By-law — Validity — 
Power to "regulate or control quarrying or 
blasting operations" — Local Government Act 
1903 (No. 1893), sec. 197 (21).]— See Local 
Government. Co-operative Brick Co. Pty. 
Ltd. v. Hawthorn, Mayor &c. of, (1909) 
9 C.L.R., 301 ; 15 A.L.R., 479. 

Local Government — By-law — Public high- 
way — Traction engine — Power to regulate — 
Restrictions on construction and user — Local 
Government Act 1903 (No. 1893), sees. 197, 
594.] — See Local Government. Tungamah 
President, dbc. of Shire of v. Merrett, (1912) 
15 C.L.R., 407 ; 18 A.L.R., 511. 

Local Government Act 1903 (No. 1893), 
sees. 203, 213, 222, 232, 609, 610, 613, 635— 
By-law, validity of — Licensing yards for sale 
of cattle — Prohibition of use of unlicensed 
premises — Penalty — Wilfulness — Limiting Lo- 
cality of licensed yards — Differentiation 
between kinds of cattle.] — Under sec. 635 (c) 
of the Local Government Act 1903, which 



authorizes a municipal council to make 
by-laws for licensing yards and premises for 
the sale of cattle, a council has no power 
to prohibit the use of unlicensed yards and 
premises for the sale of cattle. So held by 
a' Beckett and Cussen, J J. ( Hood, J. dissent- 
ing). Sec. 222 of the Local Government Act 
1903 authorizes the imposition by a by-law 
of a penalty for a " wilful act or default 
contrary thereto." Held, by a' Beckett and 
Cussen, J J. ( Hood, J. dissenting), that a 
by-law imposing a penalty on " every person 
offending against or committing any breach 
of " the by-law was invalid. A municipal 
council may by a by-law made under sec. 
635 (c) define a particular area of the munici- 
pality within which alone yards and premises 
will be licensed for the sale of cattle. Per 
a' Beckett and Hood, J J., a municipal council 
may by such a by-law differentiate between 
different kinds of cattle. In re City of 
Bendigo ; Ex parte Edwards, (1908) V.L.R., 
609 ; 30 A.L.T., 63 ; 14 A.L.R., 475. 

By-law, regulation made under — By-law 
made under Act subsequently repealed — 
Provision that by-law continue in force not- 
withstanding repeal — Regulation purporting 
to be made under repealing Act — Clear inten- 
tion to exercise a power — Effect of mis-recital 
of authority — Local Government Act 1874 
(No. 506), Schedule XIII., Part V., sec. 1— 
Local Government Act 1890 (No. 1112), sec. 2, 
Schedule XIII., Part V., sec. 1 — Local Govern- 
ment Act 1903 (No. 1893), sees. 2, 232.]— See 
Local Government. Ex parte Swan ; In 
re Mayor, &c, of the City of Hawthorn, (1907)' 
V.L.R., 16; 28 A.L.T., 113; 12 A.L.R., 
611. 

Melbourne Harbour Trust Act 1890 (No. 
1119), sec. 142 (xix.) — Carter plying for hire 
without licence from Harbour Trust Commis- 
sioners — Regulation in prohibition thereof,, 
how far valid — Licence from City of Mel- 
bourne.] — See Melbourne Harbour Trust. 
Vincent v. Curran, (1909) V.L.R., 370 ; 31 
A.L.T., 24 ; 15 A.L.R., 359. 

By-law, validity of— By-law regulator 
privies, &c, generally — Penalty not following 
the words of the by-law— Penalty not imposed 



91 



BY-LAWS. 



92 



on person responsible for existence of the 
thing prohibited— Health Act 1890 (No. 1098), 
sees. 32, 35.] — See Health (Public). Charl- 
ton, President, dbc, of Shire of v. Ruse, (1912) 
14 C.L.R., 220 ; 18 A.L.R., 207. 

By-law, validity of — Power to make by-laws 
as to the position and construction of privies, 
&c., generally — Retrospective operation of 
by-law— Health Act 1890 (No. 1098), sees. 32, 
35.1 — See Health (Public). Charlton, 
President, Sc, of Shire of v. Ruse (1912) 14 
C.L.R., 220 ; 18 A.L.R., 207. 

Pure Food Act 1905 (No. 2010), sec. 41 (2)— 
Cleanliness and freedom from contamination 
of articles of food — Regulation, validity of — 
Reasonableness — Certainty.] — See Health 
(Public). Robertson v. Abadee (1907) 
V.L.R., 235; 28 A.L.T., 184; 13 A.L.R., 
137. 

Post and Telegraph Act 1901 (No. 12) 
sees. 80, 97 (r.) — Telephone Regulations 
(Statutory Rules 1908, No. 87) — Telephone 
system — Lists of subscribers — Whether Post- 
master-General has exclusive right to publish 
— Publication by private persons — Regulation, 
whether ultra vires.]' — See Post and Tele- 
graph Acts. Commonwealth v. Progress 
Advertising and Press Agency Co. Pty. Ltd., 
(1910) 10 C.L.R., 457 ; 16 A.L.R., 305. 

II. Interpretation. 

Mines — By-laws — Maryborough mining dis- 
trict — Prospector discovering payable gold — 
Prospector's claim, extent of — " Other allu- 
vial gold workings," what are — Abandoned 
gold workings.] — See Mining. Pelletier v. 
Porter, (1907) V.L.R., 213 ; 28 A.L.T., 211 ; 
13 A.L.R., 68. 

Highway — Obstruction — Standing or loiter- 
ing in street and not moving on when requested 
— Collecting a crowd — Interference with 
traffic— By-law— Police Offences Act 1890 
(No. 1126), sec. 6.] — See Police Offences 
Acts. Haywood v. Mumford, (1908) 7 
C.L.R., 133 ; 14 A.L.R., 555. 

Carriages Act 1890 (No. 1070), sees. 3, 4— 
Licensed Carriages Statute 1864 (No. 217), 
sees. 3, 4— By-law, validity of— City of Mel- 
bourne By-Laws, No. 78, sec. 8 — Hackney 



carriage — Vehicle plying for hire, licensing 
of.] — See Carriages Act. Montgomery v. 
Berber, (1907) V.L.R., 428 ; 28 A.L.T., 230; 
13 A.L.R., 219. 

III. — Legal Proceedings ; Presumptions 
and Inferences. 

Local Government — By-law — Validity — 
Evidence Act 1890 (No. 1088), sec. 48— Local 
Government Act 1903 (No. 1893), sec. 197.]— 

The right to apply to quash a by-law of a 
municipality under sec. 48 of the Evidence 
Act 1890 has not been impliedly repealed by 
sec. 232 of the Local Government Act 1903. 
Merrett tSs Whiteman v. President, &c, of the 
Shire of Tungamah, (1912) V.L.R., 248; 34 
A.L.R., 35 ; 18 A.L.R., 214. F.C., a' Beckett, 
Hood and Cussen, J J. 

Actual legal possession — Disturbance of, 
how far permissible — Rights of true owner, 
how to be asserted — Person in possession of 
ground as a claim under prima facie title- 
Claim registered — Failure to observe mining 
by-laws.] — See Mines and Mining. Bell v. 
Clarke, (1906) V.L.R., 567; 28 A.L.T., 24; 
12 A.L.R., 308. 

Licensed carriage — Negligence of driver — 
Liability of owner — By-law No. 78 of City of 
Melbourne — Regulation prohibiting owner 
from entrusting licensed carriage to any 
person except as his servant — Prima facie 
presumption of relation of master and servant.] 
See Carrier. McKinnon v. Gauge, (1910) 
V.L.R., 32 ; 31 A.L.T., 112 ; 15 A.L.R., 640. 



CALLS. 

See COMPANY. 



CAPIAS 

See PRACTICE AND PLEADING. 



CARRIAGES ACT 

Carriages Act 1890 (No. 1070), sees. 3, 4 
(Licensed Carriages Statute 1864 (No. 217), 
sees. 3, 4)— By-law, validity of— City of Mel- 



93 



CARRIAGES ACT— CATTLE. 



94 



bourne By-Laws, No. 78, sec. 8— Hackney 
carriage— Vehicle plying for hire, licensing 
of.] — By sec. 4 of the Carriages Act 1890 the 
council of the City of Melbourne is empowered 
to make by-laws " for licensing and regulating 
hackney carriages plying for hire . . . 
and the owners and drivers of such hackney 
carriages." The council made a by-law by 
sec. 2 of which the words " hackney carriage " 
were defined to mean and include » vehicle 
which by the Act the council was empowered 
to license. Sec. 3 provided that no carriage 
should ply for hire as a hackney carriage 
until licensed, and sees. 5, 6 and 7 provided 
for the mode of licensing and the form of 
licence. Sec. 8 provided that : — " No person 
shall keep, use, employ, or let for hire for the 
carrying of passengers, any hackney carriage, 
or act as driver or conductor thereof . 
unless he shall have a licence . . ." 
Held, that although not expressly limited 
in its operation to vehicles plying for hire, 
sec. 8, when read with the rest of the by-law, 
was by necessary implication so limited, 
and was not in excess of the powers conferred 
on the council by the Carriages Act 1890. 
Montgomery v. Gerber, (1907) V.L.R., 428 ; 
28 A.L.T., 230 ; 13 A.L.R., 219. a' Beckett, 
J. (1907). 

Licensed carriage — Negligence of driver — 
Liability of owner — By-law 78 of the City of 
Melbourne — Regulation prohibiting owner 
from entrusting licensed carriage to any person 
except as his servant — Prima facie presumption 
of relation of master and servant.] — Every 
owner licensed under by-law 78 of the City 
of Melbourne, which provides that no owner of 
a licensed carriage shall entrust it to any 
person as driver except as his servant, is 
presumed until the contrary is shown to have 
obeyed the by-law, and therefore the fact 
that a person other than the owner is driving 
such carriage is not conclusive that such 
person is the servant of the owner. Clutter- 
buck v. Curry, (1885) 11 V.L.R., 810, fol- 
lowed. Gates v. R. Bell & Son, (1902) 2 
K.B., 38, distinguished. McKinnon v. 
Gange, (1910) V.L.R., 32 ; 31 A.L.T., 112 ; 
15 A.L.R., 640. F.C., Madden, C.J., Hood 
and Cussen, J J. 



CASE STATED 

See also, County Court, General Sessions. 

Administration and Probate Act 1890 (No. 
1060), sec. 98— Case stated— Right to begin.]— 

See Duties on the Estates of Deceased 
Persons. In re McCracken, 27 A.L.T., 
233 ; 12 A.L.R., 303. 

Special case — Right to begin — Stamps Act 
1890 (No. 1140), sec. 71.]— See Stamps Acts. 
Armytage v. Collector of Imposts, (1906) 
V.L.R., 504 ; 12 A.L.R., 305. 



CATTLE 

See also, Butchers and Abattoirs Act. 
Agister — Negligence — Liability — Horse 
placed among horned cattle — Horse injured 
by bull — Scienter.] — An agister for reward 
of a horse, who had put the horse in a paddock 
where there were a bull and cows, was held 
liable in damages for injuries caused by the 
bull to the horse, though the agister did not 
know the bull was of a mischievous disposi- 
tion. Sanderson v. Dunn, 32 A.L.T. (Supple- 
ment), 14; 17 A.L.R. (C.N.), 9. Judge 
Moule (1911). 

Highway — Open drain lawfully constructed 
by municipal authority — Liability of municipal 
authority — Damages, whether too remote — 
Wandering horse entering drain at shallow 
part and walking along drain to deep part — 
Horse unable to extricate itself.] — See Local 
Government. Benalla, President, &c, of 
(defendants appellants) v. Cherry (plaintiff 
respondent), (1911) 12 C.L.R., 642; 17 
A.L.R., 537. 

Crimes Act 1890 (No. 1079), sec. 74— Using 
another person's cattle without his consent — 
Unlawful user by person in lawful possession.] 

See Criminal Law. Wimble v. Foulsham, 
(1908) V.L.R., 98 : 29 A.L.T., 158 ; 13 
A.L.R., 727. 

Stock Diseases Act 1890 (No. 1141), sec. 74 
— Travelling sheep — Meaning of "on each 
day " — Offence by person in charge of such 
sheep for part of a day.] — See Stock Diseases 
Act. West v. Armstrong, (1908) V.L.R., 
685 ; 30 A.L.T., 92 ; 14 A.L.R., 562. 



95 



CERTIORARI. 



96 



Stock Diseases Act 1890 (No. 1141), sec. 74 
— Travelling sheep — Minimum daily distance 
not travelled — Lawful excuse — Condition of 
sheep.] — See Stock Diseases Act. McCure 
v. Fraser, (1908) V.L.R., 678 ; 30 A.L.T., 94 ; 
14 A.L.R., 561. 



CAVEAT 

See BILL OF SALE, TRANSFER OF LAND 
ACT. 



CERTIFICATE 

See TRANSFER OF LAND ACT. 



CERTIORARI 

Certiorari — Court of General Sessions — 
Person committed for contempt by warrant 
of Chairman — No jurisdiction — Whether act 
judicial or administrative — Party aggrieved — 
Whether entitled ex debito justitiae.] — The 
Chairman of General Sessions by warrant 
under his hand committed to prison a woman 
for a contempt, and on the return of a writ of 
habeas corpus the woman was discharged 
on the ground that there was no jurisdiction 
to commit her. In proceedings for a writ 
of certiorari, Held, that the Court of General 
Sessions having assumed to exercise jurisdic- 
tion over a, person thought to be subject 
thereto, there was a judicial act controllable 
by certiorari, and that the woman was a 
party aggrieved, and would on proper 
materials, be entitled to the issue of the 
writ ex debito justitiae. Ex parte Dunn ; 
Ex parte AspmaU, (1906) V.L.R., 584 ; 
28 A.L.T., 72 ; 12 A.L.R., 418. Cussen, J. 

Supreme Court Act 1890 (No. 1142), sec. 25 
Criminal causes and matters — Proceedings 
by way of certiorari in case of criminal con- 
tempt.] — A proceeding by way of certiorari in 
the case of a criminal contempt is itself a 
criminal cause or matter in the broad sense 
of that phrase, and, semble, is a criminal 
cause or matter within the meaning of sec. 
25 of the Supreme Court Act 1890. Ex parte 



Dunn ; Ex parte Aspinall, (1906) V.L.R., 
584 ; 28 A.L.T., 72 ; 12 A.L.R., 418. Cits- 
sen, J. 

Certiorari— 13 Geo. II. c. 18— Whether Act 
in force in Victoria as regards Justices and 
Courts of General Sessions.] — So far as relates 
to Justices the Act 13 Geo. II., c. 18, is in 
force in Victoria. Quaere, whether the Act 
is not also in force in regard to Courts of 
General Sessions, notwithstanding the fact 
that when the Act 9 Geo. IV. u. 83 was passed 
there were no Courts of Quarter or General 
Sessions in New South Wales. Ex parte 
Dunn; Ex parte Aspinall, (1906) V.L.R., 
584 : 28 A.L.T., 72 ; 12 A.L.R., 418. Cus- 
sen, J. 

Certiorari — Court of General Sessions — 
Notice of proceedings to Chairman and Jus- 
tices, necessity for — 13 Geo. n. c. 18, sec. S — 
9 Geo. IV. c. 83— Supreme Court Act 1890 
(No. 1142), sees. 25, 31.] — Even assuming 
that sec. 5 of the Act 13 Geo. IT. c. 18 is not 
in force with regard to Courts of General 
Sessions by virtue of 9 Geo. IV. c. 83, the 
same result as if it were in force is brought 
about by sees. 25 and 31 of the Supreme Court 
Act 1890 or one of them, and consequently 
in proceedings to remove any criminal matter 
from a Court of General Sessions by way of 
certiorari, it is necessary to show that the 
notice required by sec. 5 has been duly given. 
The notice must be given before the applica- 
tion even though an order nisi only is granted 
in the first instance. Ex parte Dunn ; Ex 
paHe Aspinall, (1906) V.L.R., 584 ; 28 
A.L.T., 72 ; 12 A.L.R., 418. Cussen, J. 

Certiorari to Judge of a County Court- 
Evidence — Conflict of evidence as to pro- 
ceedings in County Court — Unsworn state- 
ment of Judge, whether admissible.] — Per 
a' Beckett, J. — On the hearing of an order nisi 
for certiorari directed to the Judge of a 
County Court and a party to an action tried 
before him, the Supreme Court may obtain 
and act upon a statement, though not on 
oath, by the Judge as to what took place at 
the trial, if the affidavits are in conflict 
upon that matter. A. Macrow As Sons 
Pty. Ltd. v. Macartney, (1911) V.L.R., 393 ; 
33 A.L.T., 64 ; 17 A.L.R., 397. 



97 



CHARGE AND CHARGING ORDERS. 



98 



CESTUI QUE TRUST 

See TRUSTS AND TRUSTEES, WILL. 



CHAMBERS 

See COUNTY COURT, PRACTICE AND 
PLEADING. 



CHARGE AND CHARGING 
ORDERS. 

Will — Land subject to an equitable charge — 
Charge created by parol — Conveyancing Act 
1904 (No. 1953), sec. 75.] — An equitable charge 
on land under this section can be created by 
parol. When any person in a fiduciary 
position, including an agent, has invested 
trust money in the purchase of land, the 
beneficial owner may have a charge on the 
property for the amount of the trust money, 
and trust money may be followed into land 
upon parol evidence. In the Will of David 
Smith ; Smith v. Smith, (1909) V.L.R., 91 ; 
30 A.L.T., 214 ; 15 A.L.R., 25. Hood, J. 
(1908). 

Will — Power of appointment of certain 
land to testator's children — Appointment to 
testator's sons — Legacies to daughters out 
of his own estate — If such estate insufficient 
to pay legacies, payment to extent of de- 
ficiency charged on land — Validity of charge.] 
— See Will. In re Connell ; National 
Trustees, Executors, &c, Co. of Australasia 
Ltd. v. Connell, (1910) V.L.R., 471 ; 32 
A.L.T., 83 ; 16 A.L.R., 504. 

Will — Settlement — Annuity — Charge, 
whether on corpus or income — Order of Court 
—Transfer of Land Statute 1866 (No. 301), 
sec. 86.] — See Settlement. Brown v. 
Abbott, (1908) 5 C.L.R., 487. 

Equitable incumbrance — Legal estate got in 
pendente lite.] — A legal estate may be got 
in by an equitable incumbrancer and may be 
used against persons having equitable in- 
terests, although it has been got in pendente 
lite. Crout v. Beissel, (1909) V.L.R., 207; 
30 A.L.T., 185 ; 15 A.L.R., 143. a' Beckett, 
J. 



Local Government Act 1903 (No. 1893), 
sees. 324 to 328, 340 to 343— Rates— Enforce- 
ment of charge upon land — County Court 
practice — Special defence, notice of — County 
Court Act 1890 (No. 1078), sec. 66.]— See 
Local Government. Mayor, dkc., of Mal- 
vern v. Johnson, 28 A.L.T. (Supplement), 7 ; 
12 A.L.R. (C.N.), 28. 

Local Government Act 1903 (No. 1893), 
sees. 324 to 328, 340 to 343— Rates, interest 
and costs, how far a charge upon land — Costs 
of removing an order from Petty Sessions to 
Supreme Court.] — See Local Government. 
Mayor, &c, of Malvern v. Johnson, 28 
A.L.T. (Supplement) 7 ; 12 A.L.R. (C.N.), 
28. 

Local Government Act 1903 (No. 1893), 
sees. 2, 341 — Local Government Act 1891 
(No. 1243,) sec. 64— Real Property Act 1890 
(No. 1136), sec. 47 — Rates — Charge upon 
land — Statutes of Limitations.] — See Local 
Government. Richmond, Mayor, <Ssc, of v. 
Federal Building Society, (1909) V.L.R., 
413 ; 31 A.L.T., 52 ; 15 A.L.R., 439. 

Application to bring land under the Transfer 
of land Act — Sale of land for non-payment of 
rates under decree of County Court — Dead 
owner made defendant — Order for substituted 
service — Commissioner of Titles acting upon 
records in Office — Refusal to issue certificate 
—Local Government Act 1903 (No. 1893), 
sees. 324, 341, 342, 343, 704.]— -See Transfer 
op Land Act. In re Transfer of Land Act ; 
Ex parte Anderson, (1911) V.L.R., 397; 
33 A.L.T., 78 ; 17 A.L.R., 399. 

Local Government Act 1903 (No. 1893), 
sees. 341, 342 — County Court Rules 1891, r. 
103 — Rates — Charge on land — Proceedings 
to enforce — Death of owner — Parties — Execu- 
tor of executor — Order for sale — Title.] — See 
Local Government. Moorabbin, Shire of 
v. Soldi, (1912) V.L.R., 389 ; 34 A.L.T., 93 ; 
18 A.L.R., 493. 

Action to enforce charge upon lands for 
rates — County Court — Scale of costs, how 
determined — Value of land.] — See County 
Court. Mayor, <fcc, of Malvern v. Johnson, 
28 A.L.T. (Supplement), 7 ; 12 A.L.R. (C.N.), 
28. 

4 



99 



CHARITY— CHILDREN. 



100 



CHARITY 

Will— Charity, giit of— Compromise, juris- 
diction of Court to sanction — Attorney- 
General, consent of.] — By his will testator 
left a house and land known as " Goodrest " 
together with the furniture therein to the 
Melbourne Hospital upon trust "to be 
used for hospital purposes and as a con- 
valescent home for the convalescent patients 
of the said hospital " with power to the 
trustees of the hospital from time to time 
to alter repair erect and re -erect buildings 
on such land, provided however that such 
land and the tenements at any time erected 
thereon should be maintained and kept by 
the trustees of the hospital " for hospital 
purposes and as a convalescent home as 
hereinbefore specified and for such purposes 
only." There was a gift of the testator's 
residuary real and personal estate. To make 
" Goodrest " suitable for hospital purposes 
or for a convalescent home, would have re- 
quired a good deal of money. The trustees 
of the Melbourne Hospital had no money for 
these purposes, and, being engaged in erecting 
new hospital buildings, were unable to make 
up their minds whether to take the gift or 
not. They then entered into an agreement 
with the persons entitled under the gift of the 
residue to sell " Goodrest " and divide the 
proceeds of the sale into two moieties — one to 
go to the Melbourne Hospital to be applied 
for hospital purposes, and the other to go 
into the residuary estate. Held, that the 
Court had jurisdiction to sanction the com- 
promise, and, the compromise being modified 
so as to provide that the moiety going to 
the Melbourne Hospital should be sp9nt in 
the erection of a building for convalescent 
hospital patients, that the sanction of the 
Court should be given. In re Buchhurst ; 
Melbourne Hospital v. Equity Trustees, 
Executors dbc. Co. Ltd., (1911) V.L.R., 61; 
32 A.L.T., 165 ; 17 A.L.R., 63. Cussen,"J. 

Will — Construction — Charitable trust — 
Trust to pay passage money for immigrants — 
Relief of poverty — Validity of trust.] — See 

Will. In re Wallace ; Trustees, Executors 
and Agency Co. Ltd. v. Fatt, (1908) V.L.R., 
636 ; 30 A.L.T., 100 ; 14 A.L.R., 502. 



Will — Construction — Gift of residue— Trust 
for "charitable purposes" — Trust for "re- 
ligious purposes " — Whether valid — Uncer- 
tainty.] — See Will. In re Dobinson ; Mad- 
dock v. Attorney- General, (1911) V.L.R., 300 ; 
33 A.L.T., 20 ; 17 A.L.R., 280. 

Administration and Probate Duties Act 
1907 (No. 2089), sec. 3 — Exemption from duty 
— Public charitable bequest or settlement- 
Institution for the promotion of science and 
art, what is.] — See Duties on the Estates 
of Deceased Persons. Edgar v. Green- 
wood, (1910) V.L.R., 137; 31 A.L.T., 132; 
16 A.L.R., 6. 



CHEQUE 

See BANKER AND CUSTOMER ; BILLS 
OF EXCHANGE AND PROMISSORY 
NOTES. 



CHILDREN 

I. Legitimacy ; Domicil 

II. Custody 

III. Maintenance 

(o) Breaking into Corpus 



100 

101 

102 
102 



(6) Under the Widows and Young 

Children Maintenance Act >. 102 
(c) Maintenance Orders . . . . 103 

IV. Wills and Settlements ; Inteb- 
ests of Children under ; Ad- 
vancement . . . . . . 103 

V. Legal Proceedings . . . . 106 

VI. Other Points . . . . . . 107 

I. — Legitimacy ; Domicil. 

Evidence — Legitimacy, presumption as to— 
Father and mother living together as man and 
wife — European woman and Chinese man.]— 

Potter v. Minahan, 7 C.L.R., 277 ; 14 A.L.R., 
635. 

Child born in wedlock — Presumption of 
legitimacy.] — See Evidence. In re Osmond ; 
Bennett v. Booty, (1908) V.L.R., 67; 29 
A.L.T., 168 ; 13 A.L.R., 728. 

Prohibited immigrant— Infant— Domicil of 
father in Australia — Immigration Restriction 



101 



CHILDREN. 



102 



Act 1905 (No. 17 of 1905), sec. 4— Immigra- 
tion Restriction Act 1901 (No. 17 of 1901), 
sec. 3.] — See Immigration Restriction Acts. 
Ah Yin v. Christie, 4 C.L.R., 1428 ; 13 
A.L.R., 372. 

II. Custody. 

Infant — Custody — Rights of father — Bene- 
fit of infant — Power of Court.] — See Infant. 
The King v. Lennie ; The King v. Mac- 
kenzie, 29 A.L.T., 56 ; 13 A.L.R., 505. 

Infant— Custody of— Father's rights— Child 
in custody of others — Abdication — Welfare of 
child — Burden of proof.] — See Infant. Gold- 
smith v. Sands, 4 C.L.R., 1648 ; 13 A.L.R., 
601. 

Infant, custody of — Right to custody, how 
determined — Welfare of child, importance of 
—Marriage Act 1890 (No. 1166), sees. 31, 33.] 

— See Infant. Movie v. Movie, (1911) 13 
C.L.R., 267 ; 17 A.L.R., 446. 

Infant, custody of — Infant a girl of three 
years in custody of mother — Mother a fit 
person— Right of father — Welfare of child — 
Marriage Act 1890 (No. 1166), sees. 31, 33.]— 
See Infant. Movie v. Moule, (1911) 13 
C.L.R., 267 ; 17 A.L.R., 446. 

Custody of infant — Father outside jurisdic- 
tion — Order which cannot be enforced — 
Whether Court will make.] — See Infant. 
Knipe v. Alcoclc, (1907) V.L.R., 611; 29 
A.L.T., 98 ; 13 A.L.R., 433. 

Custody of infant — Procedure — Habeas cor- 
pus — Who may apply by — Application to Court 
for appointment of guardian, where necessary.] 

— See Infant. The King v. Waters, (1912) 
V.L.R., 372 ; 34 A.L.T., 48 ; 18 A.L.R., 304. 

Custody of child — Jurisdiction of Justices to 
determine— Marriage Act 1890 (No. 1166), 
sees. 42, 43.] — Justices have no power under 
section 43 of the Marriage Act 1890 to deal 
with the question of the custody of an 
illegitimate child at the hearing of a com- 
plaint under section 43 by or with the 
authority of the mother of the child against 
the father. Fisher v. Clack, 2 A.L.R. (C.N.), 
321, considered. Russ v. Carr, (1909) 
V.L.R., 78 ; 30 A.L.T., 131 ; 15 A.L.R., 24. 
Hodges, J. 



Custody of infant — Procedure — Habeas cor- 
pus — Who may apply by — Application to 
Court for appointment of guardian, where 

necessary.] — See Infant. The King v. 
Waters, (1912) V.L.R., 372; 34 A.L.T., 48; 
18 A.L.R., 304. 

III. — Maintenance. 

(a) Breaking into Corpus. 

Breaking into corpus — Trusts Act 1896 (No. 
1421), sec. 19 — Infant — Maintenance and 
education — Trust fund — Breaking into corpus 
— Advancement.] — See Infant. In re Eng- 
lish, (1909) V.L.R., 430; 31 A.L.T., 74; 15 
A.L.R., 517. 

Trust — Corpus in trust for infant — Breaking 
into in order to provide University fees — 
Trusts Act 1896 (No. 1421), sec. 19.]— -See 
Trusts and Trustees. Re Keam (or Kean), 
(1911) V.L.R., 165; 32 A.L.T., 159; 17 
A.L.R., 130. 

Infant — Application for maintenance by 
breaking into corpus — Heading of papers, 
form of.] — <See Trusts and Trustees. Re 
Smith, 12 A.L.R. (C.N.), 5. 

(6) Under the Widows' and Young Children 
Maintenance Act. 

Widows' and Young Children Maintenance 
Act 1906 (No. 2074), sec. 3— Disposition of 
property by will — Provision for widow and 
children — " Sufficient means for their main- 
tenance and support," what are.] — See 
Widows and Young Children Mainten- 
ance Act. In re Read, (1910) V.L.R., 68 ; 
31 A.L.T., 154 ; 16 A.L.R., 60. 

Widows and Young Children Maintenance 
Act 1906 (No. 2074), sec. 3— Disposition of 
property by will — Widow and children left 
without sufficient means for maintenance — 
Provision for maintenance by order of Court — 
Discretion, how exercised.] — See Widows 
and Young Children Maintenance Act 

In re Read, (1910) V.L.R., 68 ; 31 A.L.T., 
154 ; 16 A.L.R., 60. 

Widows and Young Children Maintenance 
Act 1906 (No. 2074)— Purpose of Act- 
Capricious and unreasonable testamentary 
dispositions.] — See Widows' and Young 



103 



CHILDREN. 



104 



Children Maintenance Act. In re ,Mc- 
Ooun, (1910) V.L.R., 153; 31 A.L.T., 193; 
16 A.L.R., 141. 

(c) Maintenance Orders. 

See also, Maintenance and Maintenance 
Orders. 

Marriage Act 1890 (No. 1166), sees. 42, 43— 
Order for maintenance of child — Subsequent 
return of child to father — Order still valid.] — 

See Maintenance and Maintenance Orders 
Lobley v. Lobley, (1909) V.L.R., 383; 31 
A.L.T., 46 ; 15 A.L.R., 443. 

Marriage Act 1890 (No. 1166), sees. 42, 43— 
Illegitimate child without adequate means of 
support — Offer by father to provide home for 
child — Right to custody of child — Agreement 
by mother to support child.] — See Mainten- 
ance and Maintenance Orders. Buss v. 
Carr, (1909) V.L.R., 78; 30 A.L.T., 131; 
15 A.L.R., 24. 

Marriage Act 1890 (No. 1166), sees. 42, 43— 
Illegitimate child without adequate means of 
support — Dismissal of previous complaint — 
Res judiciata.] — See Maintenance and 
Maintenance Orders. Rush v. Carr, 30 
A.L.T., 131. 

Marriage Act 1890 (No. 1166), sees. 42, 43— 
Maintenance order — Summons to appear be- 
fore Court of Petty Sessions — Order in fact 
made by two Justices — Jurisdiction of Justices 
—Justices Act 1896 (No. 1458), sec. 4.1— -See 
Maintenance and Maintenance Orders. 
Shee v. Larlcin, (1907) V.L.R., 295; 28 
A.L.T., 188 ; 13 A.L.R., 97. 

IV. — Wills and Settlements, Interests 
of Children under Advancement. 

Settlement by widow on children — Non- 
registration — Validity of settlement — Insol- 
vency Act 1897 (No. 1513), sec. 100.]— See 

Insolvency. Larimer v. Smail, (1911) 12 
C.L.R., 504 ; 17 A.L.R., 441. 

Will — Construction — Rule against perpet- 
uities — Gift to father for life — Gift over to 
" all his children " who shall attain the age of 
twenty-five years — Context showing intention 
to benefit only certain children then in being.] 



— See Will. In re Hobson ; Hobson v. 
Sharp, (1907) V.L.R., 724; 29 A.L.T., 125; 
13 A.L.R., 703. 

Will — Construction — Perpetuities, rule 
against — Remoteness — Trust for maintenance 
and education — Validity.] — See Will. In re 
Stevens ; Trustees, Executors and Agency 
Co. Ltd. v. Teague, (1912) V.L.R., 194; 33 
A.L.T., 233 ; 18 A.L.R., 195. 

Will — Construction — Accumulations — 
Income of residuary estate, direction to 
accumulate beyond period allowed — Gift to 
grandchildren upon youngest attaining 
twenty-one — After-born grandchildren — In- 
testacy—Wills Act 1890 (No. 1159), sec. 35.]— 
See Will. In re Stevens ; Trustees, Execu- 
tors &c. Co. Ltd. v. Teague, (1912) V.L.R., 
194 ; 33 A.L.T., 233 ; 18 A.L.R., 195. 

Wills Act 1890 (No. 1159), see. 36— Restric- 
tion upon accumulations — Exceptions — Pro- 
vision for raising portions for children of 
person taking interest under will, what is — 
Accumulation of uncertain portion of income 
from share of residue — Accumulated fund 
to be added to such share and aggregate fund 
divided amongst children — Parent of children 
entitled to interest in such share.] — See Will; 
In re Watson ; Cain v. Watson, (1910) 
V.L.R., 256 ; 31 A.L.T., 212 ; 16 A.L.R., 
76. 

Will — Power of appointment of certain land 
to testator's children — Appointment to testa- 
tor's sons — Legacies to daughters out of his 
own estate — If such estate insufficient to pay 
legacies payment to extent of deficiency 
charged on land — Validity of charge.]— See 
Will. In re Connell ; National Trustees. 
Executors, &c, Co. of 'Australasia Ltd. v. 
Connell, (1910) V.L.R., 471 ; 32 A.L.T., 83; 
16 A.L.R., 504. 

Will — Construction — Gift to testator's 
widow — " To be used by her as she may think 
proper for the benefit of herself and our 
children "— Whether trust created.]— See 
Will. In re Lawn ; Ballarat Trustees, &c. f 
Co. v. Perry, (1911) V.L.R., 318 ; 33 A.L.T.„ 
25; 17 A.L.R., 311. 



105 



CHILDREN. 



106 



Will — Construction — Trust to hold for in- 
fants until they shall have attained 21 — In- 
terest of infants.] — See Will. In re Vickers ; 
Vickers v. Vickers, (1912) V.L.R., 385; 
34 A.L.T., 133 ; 18 A.L.R., 521. 

Will — Interpretation — No devise in express 
terms — Devise by implication — Whether inten- 
tion of testator on the whole will sufficiently 
declared to justify implication — Devise of 
property for life with remainder to children 
of life tenant — Gift of other properties to life 
tenant "upon the same condition" as 
properties hereinbefore mentioned are to be 
given — Whether children take in remainder.] — 
See Wm. In re Oreen ; Crowson v. Wild-, 
(1907) V.L.R., 284 ; 28 A.L.T., 206 ; 13 
A.L.R., 121. 

Gift by implication — Gift to parent — Post- 
ponement of gift over until child attains 
twenty-one — Whether child entitled con- 
tingently on attaining twenty-one.] — See Will. 
In re Munro ; National Trustees, Executors, 
&c, Go. of Australasia v. Dunbar, (1910) 
V.L.R., 395 ; 32 A.L.T., 41 ; 16 A.L.R., 363. 

Will — Construction — Real estate devised to 
son for life on attaining twenty-five — Subse- 
quent direction as to son acquiring profession 
before getting possession of estate — Whether 
condition precedent — Direction to trustees to 
see that son acquires profession, effect of.] — 
See Will. In re Meagher ; Trustees, 
Executors and Agency Co. Ltd. v. Meagher, 
<1910) V.L.R., 407; 32 A.L.T., 69; 16 
A.L.R., 551. 

Will — Construction — Contingent legacies — 
Interim interest, whether infant contingent 
legatees entitled to — Trusts Act 1S96 (No. 
1421), sec. 18.]— -See Will. In the Will of 
Thompson ; Brahe v. Mason, (1910) V.L.R., 
407 ; 31 A.L.T., 210 ; 16 A.L.R., 215. 

Will — Construction — Maintenance of in- 
fants out of income — Whether to be treated 
as a common fund or separate shares —Income 
directed to form part of the capital of the 
share when it arose.] — See Will. In re 
Munro ; National Trustees, Executors, dbc, 
Co. of Australasia Ltd. v. Dunbar, (1910) 
V.L.R., 395; 32 A.L.T., 41; 16 A.L.R., 
363. 



Will — Construction — Gift to class — Gift to 
testator's brother and his sister's children — 
Division per capita.] — See Will. In re 
Jones ; Hams v. Jones, (1910) V.L.R., 306 ; 
32 A.L.T., 3 ; 16 A.L.R., 266. 

Will — Gift to daughter with remainder to 
her children — Gift over in default of children- 
Forfeiture of daughter's share — Daughter 
childless and past child-bearing — When share 
distributable.] — See Will. In re Lyons ; 
Grant v. Trustees, Executors and Agency Co. 
Ltd., (1908) V.L.R,, 190; 29 A.L.T., 202; 
14A.L.R., 147. 

Parent and child — Purchase by parent in 
name of child — Presumption of advancement, 
when rebutted — Retention of life interest by 
parent — Real property, rule applicable to.] — 

See Advancement. Stuckey v. Trustees, 
Executors and Agency Co. Ltd., (1910) 
V.L.R., 55; 31 A.L.T., 157; 16 A.L.R., 
65. 

V. — Legal Proceedings. 

Infant complainant in Court of Petty Ses- 
sions — Claim for wages — Order to review 
obtained by infant — Next friend, whether 
infant must proceed by — Justices Act 1890 
(No. 1105), sec 72— Rules of Supreme Court 
1884, Order XVI., r. 16.]— -See Infant. 
Hines v. Phillips, (1906) V.L.R,, 417 ; 28 
A.L.T., 1 ; 12 A.L.R., 249. 

Order to review — Infant respondent- 
Guardian ad litem — Practice.] — -See Infant. 
Brown v. Ounn ; McKay, Garnishee, (1913) 
V.L.R., 60; 34 A.L.T., 114; 18 A.L.R. 
(C.N.), 21. 

County Court Act 1890 (No. 1078), sec. 60 
—County Court Rules 1891, r. 107 — Infant, 
action by — Appointment of next friend.] — -See 
Cottnty Court. Thompson v. Peach, 28 
A.L.T. (Supplement) 10 ; 13 A.L.R. (C.N.), 
5. 

Administration and Probate Act 1890 (No. 
1060), sec. 18— Will— Caveat, who may lodge 
— Infant, next friend — Appointment of guard- 
ian as — Form of caveat where both infant and 
next friend interested in estate.] — -See Infant. 
In re Simeon, (1910) V.L.R., 335 ; 32 A.L.T., 
25 ; 16 A.L.R., 362. 



107 



CHILDREN— CHURCH OF ENGLAND. 



108 



Settled Estates and Settled Lands Act 1909 
(No. 2235), sees. 127, 128— Contract of sale— 
— Purchase in names of infants — Settled 
estate — Tenant for life — Settlement — Appoint- 
ment of trustees — Trustees to exercise powers 
of infant tenant for life.] — See Settled Es- 
tates and Settled Lands Act. In re Weir, 
(1912) V.L.R., 77; 33 A.L.T., 162; 18 
A.L.R., 26. 

Settled Estates and Settled Lands Act 1909 
(No. 2235), sees. 50, 51, 98, 101, 117, 118, 121, 
124, 127, 128, 132— Will— Devise to trustees- 
Power of sale to trustees — Power to carry on 
testator's business — Settled estate — Settle- 
ment — Persons with power of tenant for life — 
Infants.] — See Settled Estates and Set- 
tled Lands Act. In re Snowball, (1912) 
V.L.R., 176 ; 33 A.L.T., 172 ; 18 A.L.R., 65. 

Settled Estates and Settled Lands Act 1909 
(No. 2235), sees. 51, 124, 127— Sale of settled 
land — Infant being person with powers of 
tenant for life — Appointment of persons to 
exercise such powers.] — See Infant. In re 
Oheke or Akehurst ; Gheke v. Hamilton, 
(1910) V.L.R., 310; 32 A.L.T., 5 ; 16 A.L.R., 
246. 

Order XXX. (Rules of 1906)— Summons for 
directions — Claim for appointment of guardian 
of infant — Infant not a party — Whether a 
ward of Court — Order for examination of 
witnesses as to infants' whereabouts — 
Whether order may be made.] — See Infant. 
Knipe v. Alcock, (1907) V.L.R., 611 ; 29 
A.L.T., 98 ; 13 A.L.R., 433. 

Infant— When a ward of the Court.] — See 

Infant. Knipe v. Alcock, (1907) V.L.R., 
611 ; 29 A.L.T., 98 ; 13 A.L.R., 433. 

County Court Act 1890 (No. 1078), sees. 81, 
148 — Infant, whether interrogatories may be 
administered to — Rules of Supreme Court 
1906, Order XXXI., r. 29.]— See County 
Court. Brock v. Victorian Railways Com- 
missioners, 29 A.L.T. (Supplement), 3 ; 13 
A.L.R. (C.N.), 21. 

VI. — Other Points 

Local Government Act 1903 (No. 1893), 
sees. 119, 120, 143, 149— Election of coun- 
cillors — Infant's name inscribed on roll — 



Voting by infant — Validity of election.] — See 

Local Government. In re Hollins ; Ex 
parte Daly, (1912) V.L.R., 87; 33 A.L.T., 
157 ; 18 A.L.R., 43. 

Infant — Intended marriage — Goods sup- 
plied — Necessaries.] — See Infant. Quiggan 
Brothers v. Baker, (1906) V.L.R., 259; 27 
A.L.T., 174 ; 12 A.L.R., 168. 



CHILDREN'S COURTS. 

Justices Act 1890 (No. 1105), sec. 141— 
Order to review — Order which may be re- 
viewed, what is — Order remanding accused to 
custody — Remand not for convenience of 
hearing but for another purpose — Neglected 
Children's Act 1890 (No. 1121), sees. 18, 19— 
Children's Court Act 1906 (No. 2058).]— See 
Justices of the Peace. McSweeney v. 
Haggar, (1911) V.L.R., 130 ; 32 A.L.T., 194 ; 
17 A.L.R., 70. 



CHOSE IN ACTION. 

See also, Assignment. 

Chose in action consisting of right against 
the Crown — Assignment — Petition of right 
by assignee — Crown Remedies and Liability 
Act 1890 (No. 1080), sec. 20.]— See Crown 
Remedies and Liability Act. The King 
v. Brown, (1912) 14 C.L.R., 17; 18 A.L.R., 
111. 



CHURCH OF ENGLAND. 

Church of England Acts, 18 Vict. No. 45 and 
36 Vict. No. 454 — Diocese of Wangaratta— 
" Removal of Clerks Act " (No. 3 of 1907)— 
Validity of — Removal of clerk from benefice 
without formulation or hearing of any 
charge.] — The Removal of Clerics Act (No. 
3 of 1907 of the Diocese of Wangaratta) is a 
valid exercise of the powers conferred by 
the Church of England Acts, 18 Vict. No. 45 
and 36 Vict. No. 454, although it has not 
received the consent of the Archbishop of 
Canterbury. Gladstone v. Armstrong, (1908) 
V.L.R., 454 ; 29 A.L.T., 285 ; 14 A.L.R., 
270. a' Beckett, J. (1908). 



109 



CLUB. 



110 



Church of England — Diocese of Wangaratta 
— Act of Church Assembly — How far examin- 
able by Court — Act empowering Bishop to 
remove clerk without trial — No interference 
with standards of faith or doctrine — Church 
of England Acts, 18 Vict. No. 45, sec. 5, and 
36 Vict. No. 454, sec. 2.]— The Church 
Assembly of the Diocese of Wangaratta has, 
subject to the limitations imposed by the 
Act, 18 Vict. No. 45, full power to legislate 
on all purely Church matters, so as to bind 
all members of the Church. An Act of the 
Assembly, which does not infringe those 
limitations, will not be examined by the 
Court in order to find whether it sufficiently 
respects vested rights, whether it is unjustly 
retrospective, whether it destroys the inde- 
pendence of the clergy, or whether it deprives 
the Bishop of administrative authority. An 
Act which empowers the Bishop, without any 
charge being formulated or heard, to remove 
a clerk from his office upon his failure to 
resign within a certain time from the service 
upon him of a written request by the Bishop 
for his resignation , does not exceed the powers 
conferred by the Act 18 Vict. No. 45, which 
preserves adherence only to standard's of 
faith and doctrine. Gladstone v. Armstrong, 
(1908) V.L.R. 454; 29 A.L.T., 285; 14 
A.L.R., 270. a Beckett, J. (1908). 



CODICIL. 

See WILL. 



CLIENT. 

See SOLICITOR. 



CLUB. 



See also, Victoria Racing Club. 

Police Offences Act 1890 (No. 1126), sees. 
49, 51 — "Business," assisting in conducting 
— Club incorporated as company — Share- 
holders in company members of club — Totali- 
sator — Whether conducted as a business — 
Percentage of stakes retained — Burden of 
proof — Moneys received as consideration for 
an assurance to pay moneys on contingencies 
relating to horse races.] — See Gaming and 
Wagering. O'Donnell v. Solomon, (1906) 
V.L.R., 425; 27 A.L.T., 237; 12 A.L.R., 
283. 



COMMISSION. 

See CONTRACT OR AGREEMENT; 
EXECUTORS AND ADMINISTRA- 
TORS; INSOLVENCY. 



COMMONWEALTH CONCILIATION 
AND ARBITRATION ACT. 

See also, Constitutional Law ; Employer 
and Employee. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904), sec. 68— 
Association registered as organization — Rules 
— Levies imposed on branches — Liability of 
members of Association.] — By the rules of a 
voluntary Association which was registered 
as an organization under the Commonwealth 
Conciliation and Arbitration Act 1904 it was 
provided that the executive council might 
make levies upon the various branches 
of the Association, the amount of which 
should be in accordance with the number of 
financial members of the branches. Held, 
that a member of a branch was not liable to 
the Association for any portion of a levy 
made on the branch, and, therefore, that 
the Association could not recover it from 
him under sec. 68 of the Commonwealth 
Conciliation and Arbitration Act 1904. 
Prentice v. Amalgamated Mininy Employee^ 
Association of Victoria and Tasmania, (1912) 
15 C.L.R., 235; 18 A.L.R., 343. H.C., 
Griffith, C.J., Barton and Isaacs, JJ. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904), sees. 4, 9, 55, 
58, 60, 65, 73— Registration of Association- 
Validity of legislation — Association of em- 
ployees in one State — Incorporation of organi- 
zation—The Constitution (63 & 64 Vict. c. 12), 
sec. 51 (xxxv.) (xxxis.).] — See Employer and 
Employee. Jumbunna Coal Mine, No 
IAability v. Victorian Coal Miners Associa- 
tion, (1908) 6 C.L.R., 309 ; 14 A.L.R., 701. 



Ill 



COMMONWEALTH ELECTORAL ACTS. 



112 



The Constitution (63 & 64 Vict. c. 12), sec. 
73 — Appellate jurisdiction of High Court — 
Court of Conciliation and Arbitration — Com- 
monwealth Conciliation and Arbitration Act 
1904 (No. 13 of 1904), sec. 31.]— -See Employer 
and Employee. Jumbunna Goal Mine, 
No Liability v. Victorian Goal Miners 
Association, (1908) R C.L.R., 309 ; 14 A.L.R., 
701. 

The Constitution (63 & 64 Vict. c. 12), sec. 
51 (xxxv.) — "Industrial dispute" — "Ex- 
tending beyond the limits of any one State. ' ' | 

— -See Employer and Employee. Jum- 
bunna Coal Mine, No Liability v. Victorian 
Goal Miners Association, (1908) 6 C.L.R., 
309 ; 14 A.L.R., 701. 

Operation of the Constitution and laws of the 
Commonwealth — Commonwealth Concilia- 
tion and Arbitration Act 1904 (No. 13 of 1904) 
• — Jurisdiction of Court of Conciliation and 
Arbitration — Industrial dispute — " Ships 
whose first port of clearance and whose port 
of destination are in the Commonwealth " — 
Commonwealth of Australia Constitution Act 
(63 & 64 Vict. c. 12), sec. v.] — -See Employer 
and Employee. Merchant Service Guild oj 
Australasia v. Archibald Currie <fc Co., (1908) 
5 C.L.R., 737 ; 14 A.L.R., 438. 



COMMONWEALTH ELECTORAL 
ACTS. 

-See also Election Law. 

Election — Ballot paper — Necessity for plac- 
ing cross within square — Commonwealth 
Electoral Act 1902 (No. 19 of 1902), sees. 151.] 
— The decision of the High Court in Chanter 
v. Blackwood (No. 1), 1 C.L.R., 39, viz., 
that the provision requiring the cross indicat- 
ing a voter's preference to be placed within 
the square printed on a ballot-paper opposite 
to a candidate's name is directory only and 
not mandatory, is not affected by the Com- 
monwealth Electoral Act 1905. Kennedy v. 
Palmer, (1907) 4 C.L.R., 1481. Barton, J. 

Election — Ballot-paper — Marks enabling 
voter to be identified — Commonwealth Elec- 
toral Act 1902 (No. 19 of 1902), sec. 158 (d).]— 



In the absence of any evidence of an improper 
practice or plan, the mere fact that there is 
upon a ballot-paper a mark which may 
possibly enable someome to identify the 
voter, does not necessarily invalidate the 
vote. Kennedy v. Palmer, (1907) 4 C.L.R., 
1481. Barton, J. 

For a consideration of the questions to be 
determined before acceptance of a ballot- 
paper, -See Kennedy v. Palmer, (1907) 4 
C.L.R., 1481. Barton, J. 

Agent — Liability of candidate for acts of.] — 

Where a candidate at an election is sought 
to be made responsible for illegal acts done 
during the election by his agent, it must be 
proved that the candidate either counten- 
anced or directed the doing of the acts. 
Crouch v. Ozanne, (1910) 12 C.L.R., 539. 
O'Connor, J. 

Commonwealth Electoral Acts (No. 19 of 
1902) (No. 26 of 1905), sec. 182 (a)— Electoral 
offences — Convassing for votes at entrance 
of polling booth, what is.] — Semble, that 
canvassing for votes on or at the top of 
the steps leading to a polling booth is within 
the prohibition in sec. 182 (a) of the Common- 
wealth Electoral Acts 1902-1909 against 
canvassing for votes at the entrance to a 
polling booth, but canvassing between the 
gate of the land on which the polling booth is 
and the building itself is not, within the pro- 
hibition. Crouch v. Ozanne, (1910) 12 
C.L.R., 539. O'Connor, J. 

Commonwealth Electoral Acts (No. 19 of 
1902) (No. 26 of 1905), sec. 198 (a)— Illegal 
practices — Voiding election — Scrutineers of 
defeated candidates prevented from entering 
polling booth — Majority of successful can- 
didate at such booth greater than total 
majority.] — The presiding officers at certain 
booths wrongly prevented scrutineers for 
the defeated candidate from entering the 
polling booths. Held, that the mere fact 
that at those booths the majority of votes 
polled for the successful candidate was 
larger than his total majority was not 
a sufficient ground for avoiding the election, 
in the absence of reasonable grounds for 
concluding that the result of the election 



113 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 114 



was affected by the exclusion of the scruti- 
neers. Grouch v. Ozanne, (1910) 12 C.L.R., 
539. O'Connor, J. 

Commonwealth Electoral Act 1902-1909, 
sec. 109 (b) (1) — Application for postal vote 
certificate — Witnessing signature — Applica- 
tion not signed by Elector.! — Section 109 (b) 
(1) of the Commonwealth Electoral An 1902- 
1909 provides that a witness shall not witness 
the signature of an elector to an application 
for a postal vote certificate unless he has 
seen the applicant sign the application in the 
applicant's own handwriting. The respond- 
ent signed an application form as witness, 
but the application was never signed by the 
elector, the space for the signature of the 
elector in the form being left blank. Held, 
that, as the application had never been 
signed, the respondent had not witnessed » 
signature, and was not liable to a penalty 
under this section. Hearn v. Hill, (1910) 
13 C.L.R., 128. H.C., Griffith, C.J., Barton 
and O'Connor, J J. 



COMMONWEALTH OF AUSTRALIA 
CONSTITUTION. 

I. Interpretation Generally . . 114 

II. Powers of Parijament . . . . 114 
(a) Validity of Legislation Gener- 
ally 114 

(6) Taxation and Tax Bills .. 116 

(c) Corporations .. .. ..118 

(d) Immigration and Emigration 120 

(e) External Affairs , . . . . 121 
(/) Conciliation and Arbitration 121 
(g) Elections . . . . . . 125 

III. The Judicature . . . . . . 125 

(a) Judicial Power Generally . . 125 

[b) Original Jurisdiction . . . . 126 

(c) Appellate Jurisdiction . . 127 

[d) Appeal to King in Council 130 

IV. The Executive Government ; 
Finance and Trade . . . . 133 

V. The States 135 

(a) Reserved Powers of State Par- 
liament . . . . . . 135 



(6) Inconsistency of Laws . . 135 

(c) Interference with Instruments 

of Government . . . . 137 

(d) Legislation in Respect of 

Religion . . . . . . 139 

(e) The Slate Courts ' .. . . 139 

I. — Interpretation Generally. ' 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution- 
Principles of interpretation.] — Per Griffith, 
C.J., Barton and ' O' Connor, J J. — In con- 
struing the Constitution regard must be had 
to the fact that it is an instrument of govern- 
ment calling into existence a new State with 
all such attributes of sovereignty as are 
consistent with its being still " under the 
Crown." Baxter v. Commissioners of Taxa- 
tion ; Flint v. Webb, 4 C.L.B., 1087, 1178; 
13 A.L.R., 313 (1907). 

II. — Powers of Parliament. 

(a) Validity of Legislation Generally. 

Powers of Commonwealth Parliament — 
Validity of legislation — Part of Act invalid — 
Whether whole Act invalidated — Test for 
determining whether invalid part severable.] — 
Per Griffith, C.J., Barton and O'Connor, JJ. 
— The test to be applied in determining 
whether the invalid part of an Act is sever- 
able is whether the Act with the invalid 
portions omitted would be substantially 
a different law as to the subject matter dealt 
with by the portion which remains from the 
law as it would be with the omitted portions 
forming part of it. Per Isaacs, J. — The test. 
of invalidity is this : If good and bad pro- 
visions are included in the same words or 
expression the whole must fail. Where they 
are contained in separate words or expressions, 
then, if the good and bad parts are so mutu- 
ally connected with and dependent upon each 
other as to lead the Court, upon applying 
the language to the subject matter, to believe 
that Parliament intended them as a whole, 
and did not pass the good parts as inde- 
pendent provisions, all the provisions so 
connected and dependent must fall together. 
The King and the Commonwealth Court of 
Conciliation and Arbitration and the President 



115 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 



116 



thereof and the Boot Trade Employees Federa- 
tion, Ex parte Whybrow & Co., (1910) 11 
C.L.R., 1 ; 16 A.L.R., 373. 

The Constitution (63 & 64 Vict. c. 12), sec. 
51 — Legislative power of Commonwealth — 
Validity of Act, principles to be observed in 
determining question of — Form of Act — 
Substance of Act — Direct and indirect effect — 
Motive and object of legislation — Interference 
with domestic affairs of State — Excise Tariff 
1906 (No. 16 of 1906)— Taxation.]— Per 
Griffith, C.J., Barton and O'Connor, J J. — In 
determining whether a particular law is or is 
not within the power of the Commonwealth 
Parliament to enact, regard must be had to 
its substance rather than to its literal form. 
The circumstance that an indirect effect 
may be produced by the exercise of an ad- 
mitted power of legislation is irrelevant to 
the question whether the legislature is com- 
petent to prescribe the same effect by direct 
law. So are the motives which actuated 
the legislature and the ultimate end desired 
to be attained. So long as the limits of the 
power of taxation are not transgressed, 
Parliament may select the persons or things 
in respect of which the exercise of the power 
is to operate. If the control of the domestic 
affairs of the States is in any particular for- 
bidden by the Constitution either expressly 
or by necessary implication, the power of 
taxation cannot be exercised so as to operate 
as a direct interference with those affairs in 
that particular. The selection of a particu- 
lar class of goods produced in Australia for 
taxation by » method which makes the lia- 
bility to taxation dependent upon conditions 
to be observed in the industry in which they 
are produced is as much an attempt to 
regulate those conditions as if the regulation 
were made by distinct enactment. Per 
Isaacs and Higgins, JJ. — The powers sub- 
stantially granted to the Commonwealth by 
the Constitution may be exercised to their 
utmost extent, and in as plenary » manner 
as if the Commonwealth were a unitary 
State, subject only to the express limitations 
found in the Constitution itself and (per 
Isaacs, J.), to the necessary freedom of the 
States to exercise without interference the 



powers reserved to them. Held, further 
(per Isaacs and Higgins, JJ.), the Common- 
wealth powers are not to be limited by first 
assuming the extent of the State powers. 
The reserved powers of the States are those 
which remain after full effect is given to the 
powers granted to the Commonwealth, and 
cannot control the extent of those constitu- 
tional grants. If a legislative power is once 
granted, neither its abuse nor its consequences 
nor any purpose, motive, or object of the 
legislature can render its exercise illegal ; 
any remedy for abuse, so long as the limits 
of the power are not exceeded, must rest with 
the electors and not with the Court. The 
objections raised to the validity of the 
Excise Tariff 1906 (No. 16) on the ground 
alleged that it in substance regulates condi- 
tions of remuneration of labour, are in reality 
objections based on abuse of power, conse- 
quences, and the purpose, motive and object 
of Parliament, and are therefore beyond the 
competency of the Court to entertain. 
Compulsory contribution to the consolidated 
revenue, demanded irrespective of any 
legality or illegality in the circumstances 
upon which the liability depends, is taxation. 
Pecuniary penalties, imposed as a punish- 
ment for an unlawful act or omission, are 
regulation. The King v. Burger ; The 
Commonwealth v. McKay, (1908) 6 C.L.R., 
41 ; 14 A.L.R., 374. 

(b) Taxation and Tax Bills 

The Constitution (63 & 64 Vict. c. 12), sees. 
51 (ii.), 99 — Taxation, power of Common- 
wealth with respect to — Discrimination be- 
tween States or parts of States — Preference to 
one State over another State — Excise Tariff 
1906 (No. 16 of 1906), whether ultra vires.l— 
The Excise Tariff (No 16) 1906, if otherwise 
valid, is invalid on the ground that it author- 
izes discrimination, and therefore discrimin- 
ates, between States or parts of States within 
the meaning of sec 51 (n ) of the Constitu- 
tion, and authorizes the giving, and therefore 
gives, preference to one State or a part 
thereof over another State or a part thereof 
within the meaning of sec 99 of the Con- 
stitution Held, therefore (per Griffith, CJ, 
Barton and O' Connor, J J . Isaacs and 



117 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 118 



Higgins, JJ , dissenting), that the Excise 
Tariff 1906 (No 16) is invalid Per Isaacs 
and Higgins, J J — The proviso to the Excise 
Tariff 1906 (No 16) does not discriminate 
between localities at all, but describes 
standards applicable to Australia generally, 
irrespective of its division into States or 
parte of States, and does not offend against 
the prohibition contained in sec 51 (ii ) of 
the Constitution Per Isaacs, J — The dis- 
crimination forbidden by see. 51 (n.) is be- 
tween localities considered and treated as 
States and parts of States, and not as mere 
Australian localities or parts of the Common- 
wealth considered as «, single country. The 
Kmg v. Barger ; The Commonwealth v. 
McKay, (1908) 6 C.L.R., 41 ; 14 A.L.R., 
374. 

The Constitution (63 & 64 Vict. c. 12), sec. 
51 (ii.) — Legislative powers of the Common- 
wealth — Taxation — Regulative legislation, 
what is— Excise Tarifi 1906 (No. 16 of 1906), 
whether a taxing or a regulative Act.] — Per 
Griffith, C.J., Barton and O'Connor, J J. — 
The Excise Tariff 1906 (No. 16) is not an 
Act imposing duties of excise, but is an Act 
to regulate the conditions of manufacture 
of agricultural implements, and is therefore 
not an exercise of the power of taxation 
conferred by the Constitution. Even if the 
term " taxation," uncontrolled by any 
context, were capable of including the indirect 
regulation of the domestic affairs of the 
States by means of taxation, its meaning in 
the Constitution is limited by the implied 
prohibition- against direct interference with 
matters reserved exclusively to the States. 
Per Isaacs and Higgins, JJ. — The Excise 
Tariff 1906 (No. 16), should be construed 
according to the natural meaning of the 
language used by the legislature, and should 
not be turned by an argument of equivalence 
of effect into an enactment of a totally 
different character. Properly construed, the 
Act imposes taxation upon implements 
which are not in fact manufactured under 
prescribed conditions to be ascertained in 
prescribed modes, but does not render any 
conditions unlawful. It is consequently 
not a regulative Act which a State could pass 



in the same terms, but an exercise of the 
power of excise taxation, and, if passed by a 
State legislature would be invalid. The 
King v. Barger ; The Commonwealth v. 
McKay, (1908) 6 C.L.R., 41; 14 A.L.R., 
374. 

The Constitution (63 & 64 Vict. c. 12), see 
55 — Laws imposing taxation — To deal only 
with imposition of taxation — Excise Tariff 
1906 (No. 16 of 1906), whether it deals with 
matters other than excise duty.]— Per Griffith, 
C.J., Barton and O'Connor, J J. — Even if 
it were otherwise within the competence of 
the Commonwealth Parliament to deal with 
the conditions of labour, the Excise Tariff 
1906 (No. 16) which, if valid, would have the 
effect of regulating the conditions of manu- 
facture, would be invalid as dealing with 
matters other than duties of excise contrary 
to sec. 55 of the Constitution. Per Isaacs 
and Higgins, J J. — As the Excise Tariff 1906 
(No. 16) merely imposes excise taxation, sec. 
55 of the Constitution is not contravened. 
The King v. Barger ; The Commonwealth v. 
McKay, (1908) 6 C.L.R., 41 ; 14 A.L.R., 
374. 

Customs Tariff 1908 (No. 7 of 1908), sees. 
3, 4, 5, 7 — Duties collected under proposed 
tariff — Proposed tariff different from tariff 
enacted by Parliament — Right to recover 
money back — " Duties of Customs collected 
pursuant to any tariff or tariff alteration " — 
Commonwealth Constitution, sec. 55 — Impos- 
ing taxation.] — See Customs. Sargood 
Brothers v. The Commonwealth, (1910) 11 
C.L.R., 258 ; 16 A.L.R., 483. 

(c) Corporations. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12), sec. 51 (xx.)— Power to 
make laws with respect to foreign corporations 
and trading and financial corporations formed 
within the limits of the Commonwealth — 
Limits of power.] — Section 51 (xx.) of the 
Constitution does not confer on the Common- 
wealth Parliament power to create corpora- 
tions, but the power is limited to legislation 
as to foreign corporations and trading and 
financial corporations created by State law. 
Huddart Parker & Co. Proprietary Ltd. v. 



119 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 120 



Moorehead ; Appleton v. Moonhead, (1909) 
8 C.L.R., 330; 15 A.L.Ri, 241. H.C., 
Griffith, O.J., Barton, O'Connor. Isaacs and 
Hiygins, J J. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12), sec. 51 (xx.)— Inter- 
ference with internal trade and commerce — ■ 
Power to make laws with respect to '* foreign 
corporations and trading or financial corpora- 
tions formed within the limits of the Com- 
monwealth " — Limits of power — Control of 
corporations, their status, capacity and con- 
tracts.]— Held, by Griffith, C.J. and Barton 
J. — Sec. 51 (xx.) of the Constitution confers 
upon the Commonwealth Parliament power 
to prohibit foreign corporations and trading 
and financial corporations formed under 
State laws from engaging in trade and com- 
merce within a State, as distinguished from 
trade and commerce between States or with 
foreign countries, or to impose conditions 
subject to which they may engage in such 
trade and commerce, but does not confer 
upon the Commonwealth Parliament power 
to control the operations of such corporations 
which lawfully engage in such trade and 
commerce. By O'Connor, J. — The power 
conferred by sec. 51 (xx.) of the Constitution 
is limited to the making of laws with respect to 
the recognition of corporations as legal 
entities within the Commonwealth, and does 
not include a power to make laws, for regula- 
ting and controlling the business of corpora- 
tions when once they have been so recognized, 
and are exorcising their corporate functions 
by carrying on business in the Commonwealth. 
By Isaacs, J. — Sec. 51 (xx.) confers on the 
Commonwealth Parliament, power to control 
the conduct of the specified corporations in 
relation to outside persons, but not the powers 
and capacities of corporations. By Higgins, 
J. — The power conferred by sec. 51 (xx.) of 
the Constitution is a power to legislate 
with respect to the classes of corporations 
named as corporations — that is, to regulate 
the status and capacity of such corporations, 
and the conditions upon which they may 
be permitted to carry on business ; but does 
not include a power to regulate the con- 
tracts into which corporations may enter 



within the scope of their permitted powers. 
Huddart Parker <fc Co. Proprietary Ltd. v. 
Moorehead ; Appleton v. Moorehead, (1909) 
8 C.L.R., 330 ; 15 A.L.R., 241. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12), sec. 51 (xx.)— Power to 
make laws with respect to " foreign corpora- 
tions, and trading and financial corporations 
formed within the limits of the Common- 
wealth" — Australian Industries Preservation 
Act 1906 (No. 9 of 1906), sees. 5 and 8, 
whether intra vires.] — Sees. 5 and 8 of the 
Australian Industries Preservation Act 1906 
are ultra vires the Commonwealth Parliament 
and invalid. Huddart Parker & Co. Pro- 
prietary Ltd. y. Moorehead ; Appleton v. 
Moorehead, (1909) 8 C.L.R., 330; 15 A.L.R., 
241. H.C., Griffith, C.J., Barton, O'Connor, 
and Higgins, J J, ( Isaacs* J. -dissentiente). 

{d) Immigration and Emigration. 

The Constitution (63 & 64 Vict. c. 12), sec. 
51 (xxvii.) — "Immigrant," meaning of — 
Member of Australian community returning 
from abroad.] — A person whose permanent 
home is Australia and who, therefore, is a 
member of the Australian community, is 
not, on arriving in Australia from abroad, 
an immigrant in respect of whose entry the 
Parliament of the Commonwealth can legis- 
late under the power conferred by sec. 51 
(xxvii.) of the Constitution to make laws with 
respect to immigration, and, therefore, such 
a person is not an immigrant within the 
meaning of the Immigration Bestriction Acts 
1901-1905. Potter v. Minahan, (1908) 7 
C.L.R., 277 ; 14 A.L.R., 635. H.C., Griffith, 
C.J., Barton, O'Connor. Isaacs and Higgins, 
JJ. 

Immigration Bestriction Act 1901 (No. 17 
of 1901) — Prohibited immigrant— Application 
of Act to Australian citizen — Commonwealth 
Constitution, sec. 51.] — Semble, there is no 
Australian nationality, as distinguished from 
British nationality, so as to limit* the power 
of the Commonwealth under sec. 51 of the 
Constitution to exclude persons from Aus- 
tralia. Quaere, whether the power of the 
Parliament under sec. 51 to deal with 
" immigration " extends to the case of 



121 COMMONWEALTH OF AUSTRALIA CONSTITUTIONS 122 



Australians absent from Australia on a visit 
animo revertendi. Attorney- General of the 
Commonwealth v. Ah Sheung, (1907) 4 C.L.R., 
949. H.C., Griffith, G.J., Barton and 0' Con- 
nor, J J. 

(e) External Affairs. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution; 
sec. 51 (xxix.) — External affairs — Surrender 
of fugitive offenders — Power of Common- 
wealth Parliament with regard to.] — Semble, 
sec. 51 (xxix.) of the Constitution empowers 
the Parliament of the Commonwealth to 
make laws with respect to the surrender of 
fugitive offenders between the Common- 
wealth and other parts of the British domin- 
ions. McKelvey v, Meagher, 4 C.L.R., 265 : 
12 A.L.R., 483. H.C., Griffith, C.J., Barton 
and O'Connor, J J. (1906). 

(/) Conciliation and Arbitration. 
Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 51 (xxxv.) — Arbitration in regard to 
industrial disputes — Extent of power of Com- 
monwealth.] — Per Griffith, C.J., Barton and 
O'Connor, J J. — Under the Constitution the 
only arbitral power which can be conferred 
upon the Commonwealth Court of Concilia- 
tion and Arbitration is a power of judicial 
determination between the parties to a 
dispute. The King and the Commonwealth 
Court of Conciliation and Arbitration and 
the President thereof and the Boot Trade 
Employees Federation, Ex parte Whybrow 
& Co., (1910) 11 C.L.R., 1 ; 16 A.L.R., 373. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904), sees. 4, 55, 
58, 60, 65, 73— Registration of Association- 
Validity of legislation — Association of em- 
ployees in one State — Incorporation of organi- 
zation—The Constitution (63 & 64 Vict. c. 
12), sec. 51 (xxxv.) (xxxix.).] — The provisions 
of the Commonwealth Conciliation and Ar- 
bitration Act 1904 in respect of the registra- 
tion of Associations as organizations, par- 
ticularly in so far as they permit the registra- 
tion of an Association of employers or em- 
ployees in an industry in one State only, 
and provide for the incorporation of organiza- 



tions when registered, are valid as being inci- 
dental to the power conferred on the Common- 
wealth Parliament by sec. 51 (xxxv.) of the 
Constitution. Jumbunna Coal Mine, No- 
Liability v. Victorian Coal Miners' Associa- 
tion, (1908) 6 C.L.R., 309 ; 14 A.L.R., 701 ; 
H.C., Griffith, C.J., Barton, 0' Connor and 
Isaacs, J J. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 51 (xxxv.) — Conciliation and arbitration 
for prevention and settlement of industrial 
disputes — Commonwealth Conciliation and 
Arbitration Act 1904 (No. 13 of 1904)— 
Validity.] — The Commonwealth Conciliation 
and Arbitration Act is not ultra vires the 
Constitution, either on the ground that under 
that Act the reference to the Court of Con- 
ciliation and Arbitration is compulsory,, 
or on the ground that the tribunal for the 
determination of such disputes is not chosen 
by the disputants. The King and the- 
Commonwealth Court of Conciliation and 
Arbitration and the President thereof and the 
Boot Trades Employees Federation, Ex parte 
Whybrow & Co., (1910) 11 C.L.R., 1 ; 16 
A.L.R., 373. H.C., Griffith, C.J., Barton,. 
O'Connor and Isaacs, J J. 

" Conciliation and arbitration for the 
prevention and settlement of industrial dis- 
putes " — Powers of the Commonwealth — 
Common rule — The Constitution (63 & 64 
Vict. c. 12), sec. 51 (xxxv.) (xxxix.) — Common- 
wealth Conciliation and Arbitration Act. 
(No. 13 of 1904), sees. 19, 38 (f ), (g)— Common- 
wealth Conciliation and Arbitration Act. 
(No. 7 of 1910).] — The provisions of the 
Commonwealth Conciliation and Arbitration 
Act 1904-1910, which purport to authorize 
the Commonwealth Court of Conciliation 
and Arbitration to declare » common rule 
in any particular industry, and direct that 
the common rule shall be binding upon the 
persons engaged in the industry, are ultra 
vires the Parliament of the Commonwealth 
and invalid. Australian Boot Trade Em- 
ployees Federation v. Whybrow, (1910) 11 
C.L.R., 311 ; 16 A.L.R., 513. H.C., Griffith,. 
C.J., Barton, O'Connor, Isaacs and Higgins,. 
JJ. 



123 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 124 



Operation of the Constitution and laws of 
the Commonwealth — Commonwealth Con- 
ciliation and Arbitration Act 1904 (No. 13 of 
1904) — Jurisdiction of Court of Conciliation 
and Arbitration — Industrial dispute — " Ships 
whose first port of clearance and whose 
port of destination are in the Commonwealth ' ' 
— Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12), sec. v.]— A joint 
stock company registered in Victoria were 
owners of a line of ships registered in Mel- 
bourne and engaged in trade between Aus- 
tralia, Calcutta and South Africa. The 
officers of the company's ships resided in 
Australia, and were engaged there, but the 
ships' articles were filled in and signed in 
Calcutta. The officers, though not entitled 
to be discharged in Australian ports, were 
allowed to leave at such ports if they wished, 
with the consent of the master. The ships 
did no inter-State trade, but occasionally 
made short trips to other Indian ports. 
The organization of employees to which the 
officers belonged filed a claim in the Com- 
monwealth Court of Conciliation and Arbi- 
tration for the settlement of a dispute 
between the officers and their employers as to 
wages, hours, and conditions of labour 
during the voyages of their ships. Held, 
that the Court had no jurisdiction to settle 
the dispute. Ships engaged in such trade 
are not ships " whose first port of clearance 
and whose port of destination are in the 
Commonwealth " within the meaning of 
sec. v. of the Commonwealth of Australia 
Constitution Act. Merchant Service Guild of 
Australasia v. Archibald Currie <So Co., 
<1908) 5 C.L.K., 737 ; 14 A.L.R., 438. H.C., 
Griffith, G.J., Barton, O' Connor, Isaacs and 
Higgins, J J. 

The Constitution (63 & 64 Vict. c. 13), sec. 
51 (xxxv.) — " Industrial dispute " — " Ex- 
tending beyond the limits of any one State."] 
— For observations as to the meaning of 
" industry,'' " industrial dispute " and " Ex- 
tending beyond the limits of any one State," 
See Jumbunna Coal Mine, No Liability v. 
Victorian Coal Miners' Association, (1908) 
6 C.L.R., 309 ; 14 A.L.R., 701. H.C. 

Commonwealth Constitution, sec. 51 (xxxv.) 
— Industrial dispute extending beyond the 



limits of any one State.] — What constitutes 
evidence of an industrial dispute extending 
beyond the limits of any one State considered. 
The King and the Commonwealth Concilia- 
tion and Arbitration Court and the President 
thereof and the Boot Trade Employees Federa- 
tion, Ex parte Whybrow <b Co., (1910) 11 
C-L.R., 1 ; 16 A.L.R., 373. H.C. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904)— Industrial 
dispute, what is — Commonwealth Constitu- 
tion, sec. 51 (xxxv.).] — See Employer and 
Employee. The King and the Common- 
wealth Court of Conciliation and Arbitration 
and the President thereof and the Boot Trade 
Employees Federation, Ex parte Whybrow & 
Co., (1910) 11 C.L.R., 1; 16 A.L.R., 373. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904)— Whether ultra 
vires of Parliament.] — The provisions of the 
Commonwealth Conciliation and Arbitration 
Act 1901, dealing with the regulation of 
industries generally, if invalid, are severable. 
The, King and the Commonwealth Court of 
Conciliation and Arbitration and the President 
thereof and the Boot Trade Employees Federa- 
tion, Ex parte Whybrow & Co., (1910) 11 
C.L.R., 1 ; 16 A.L.R., 373. H.C, Griffith, 
C.J., Barton, O'Connor and Isaacs, J J. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904)— Claims in 
regard to matters in dispute — Joinder of 
claims in regard to matters not in dispute- 
Jurisdiction of Court of Conciliation and 
Arbitration — The Commonwealth Constitu- 
tion, sec. 51 (xxxv.).l — See Employer and 
Employee. The King and the Common- 
wealth Court of Conciliation and Arbitration 
and the President thereof and the Boot Trade 
Employees Federation, Ex parte Whybrow & 
Co., (1910) 11 C.L.R., 1 ; 16 A.L.R., 373. 

Commonwealth Court of Conciliation and 
Arbitration — Award, validity of — Higher rate 
awarded than that demanded by claimants- 
Demand that wage of apprentice be based on 
experience — Wage awarded based on age and 
experience — Industrial dispute.] — See Em- 
ployer and Employee. The King and the 
Commonwealth Court of Conciliation and 



125 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 126 



Arbitration and the President thereof and the 
Boot Trade Employees Federation, Ex parte 
Whyhrow & Co., (1910) 11 C.L.R.. 1 ; 16 
A.L.R., 373. 

(y) Elections. 

Parliamentary election — Political article in 
newspaper during election — Signature of author 
— Validity of Commonwealth legislation — The 
Constitution (63 & 64 Vict. c. 12), sees. 10, 51 
(xxxvi.) — Commonwealth Electoral Act 1902- 
1911 (No. 19 of 1902— No. 17 of 1911), sec. 
181aa. I — The Commonwealth Parliament has 
power under the Constitution to make laws 
regulating Federal Parliamentary elections, 
and, therefore, sec. 181aa of the Common- 
wealth Electoral Act 1902-1911 is within the 
powers of the Commonweal t!i Parliament to 
enact. Smith v. Oldham, (1912) 15 C.L.R., 
355 ; 18 A.L.R., 448. H.C., Griffith, C.J., 
Barton and Isaacs, J J. 

III. — The Judicature. 

(a) Judicial Power Generally. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12), sec. 71— " Judicial 

power."] — Per .Griffith, C.J. — The power 
which, by sec. 71 of the Constitution, is to be 
exercised by the Courts is a power of such 
a nature that an appeal will lie to the High 
Court from anything done in its exercise. 
It means the power which every sovereign 
authority must of necessity have to decide 
controversies between its subjects, or between 
itself and its subjects, whether the rights 
relate to life, liberty or property. The 
exercise of this power does not begin until 
some tribunal which has power to give a 
binding and authoritative decision (whether 
subject to appeal or not) is called upon to take 
action. Per Isaaci, J. — The expression 
" judicial power " understood as the power 
which the State exercises in the administra- 
tion of justice in contradistinction from the 
power it possesses to make laws and the 
power of executing them, is not in the least 
ambiguou=. Huddart Parker (So Co. Pro- 
prietary Ltd. v. MooreheaS. ; Appleton v. 
Moorehead, (1909) 8 C.L.R., 330 ; 15 A.L.R., 
241. H.C. 



Commonwealth legislation, validity of — 
Anti-trust laws — Inquiry by Comptroller- 
General of Customs — Compulsory answers — 
Judicial power of Commonwealth — Trial by 
jury— Inter- State Commission • — Australian 
Industries Preservation Act 1906 (No. 9 of 
1906) amended by Australian Industries 
Preservation Act 1907 (No. 5 of 1908), sec. 15b 
—The Constitution (63 & 64 Vict. c. 12), sees. 
51 (1) (xx.), 71, 80. 101.1 — Sec. 15n of the 
Australian Industries Preservation Art 1906 
(as amended by the Australian Industries 
Preservation Act 1907) is intra >■?'«* the 
Commonwealth Parliament and valid. The 
inquiry authorised by that section is not 
inconsistent with the right to trial by jury 
conferred by sec. 80 of the Constitution, 
nor is such inquiry an exercise of the judicial 
power of the Commonwealth, nor an incident 
of the execution and maintenance of the 
provisions of the Constitution relating to 
trade and commerce within the meaning of 
sec. 101 of the Constitution. Such inquiry 
need not therefore be entrusted to the inter- 
State Commission. Huddart Parker & Co. 
Proprietary Ltd. v. Moorehead ; Appleton v. 
Moorehead, (1909) 8 C.L.R., 330 ; 15 A.L.R., 
241. H.C, Griffith, C.J., Barton, O'Connor, 
Isaacs and Higgins, JJ. 

(b) Original Jurisdiction. 

The Constitution (63 & 64 Vict. c. 12), sec. 
75 — Original jurisdiction of High Court — 
" Matters " between States, what are — 
Dispute as to boundary between two States — 
Boundary fixed by Act of Imperial Parlia- 
ment.] — The " matters " between States, 
in respect of which original jurisdiction is, 
by sec. 75 of the Commonwealth Constitution 
conferred on the High Court, are matters 
which are of a like nature to those which 
can arise between individuals, and which 
are capable of determination upon prin- 
ciples of law. Held, accordingly, in a case 
in whioh the boundary between two States 
had been fixed by an Imperial Act of Parlia- 
ment before Federation, that the High Court 
had j urisdiction to entertain an action by one 
of such States against the other seeking a 
declaration that certain land adjoining that 
boundary, and in the de facto occupation of 



127 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 128 



the latter State, formed part of the terri- 
tory of the former State. State of South 
Australia v. State , of Victoria-, (1911) 12 
C.L.R., 667 ; 17 A.L.R., 206. H.C., Griffith, 
C.J., Barton, O'Connor, Isaacs and Higgins, 
JJ. 

[This point was not considered by the 
Privy Council.] 

(c) Appellate. Jurisdiction. 

Judiciary Act 1903 (No. 6 of 1903), sec, 39— 
Federal jurisdiction of State, Courts — Validity 
of grant of — Right of appeal to High Court — 
Prerogative right of appeal to Privy Council, 
whether affected — Commonwealth of Australia 
Constitution Act (63 & 64 Vict. c. 12)— The Con- 
stitution, sees. 71, 77 — Colonial Laws Validity 
Act (28 & 29 Vict. C 63.1— Per Griffith, C.J., 
Barton, O'Connor and Isaaci, J J. — Even if 
sec. 39 (2) (a) of the Judiciary Act 1903 
purports to take away the prerogative 
right of appeal to the Privy Council, and the 
section is to that extent ultra vires and in- 
operative, its failure in that respect does not 
affect the validity of the grant of Federal 
jurisdiction to State Courts contained in the 
rest of the section, and the consequent 
right of appeal to the High Court. Sed 
Quaere, whether sub-sec. (2) (a) should be 
construed as affecting the prerogative. 
Baxter v. Commissioners of Taxation ; Flint 
v. Webb, 4C.L.R., 1087, 117S; 13 A.L.R., 313 
(1907). 

The Constitution (63 & 64 Vict. c. 12), sec. 
73 — Appellate jurisdiction of High Court — 
Court of Conciliation and Arbitration — Com- 
monwealth Conciliation and Arbitration Act 
1904 (No. 13 of 1904), sec. 31.]— An appeal 
lies to the High Court from a decision of the 
President of the Commonwealth Court of 
Conciliation and Arbitration dismissing an 
appeal to him from a decision of the Indus- 
trial Registrar disallowing objections to the 
registration of an Association under the 
Commonwealth Conciliation and Arbitration 
Act 1904. Jumbunna Coal Mine, No 
Liability v. Victorian Coal Miners' Associa- 
tion, (1908) 6 C.L.R., 309; 14 A.L.R., 701. 
H.C., Griffith, C.J., Barton, O'Connor and 
Isaacs, JJ. 



Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sees. 71, 73, 75 (v.) — Commonwealth Concilia- 
tion and Arbitration Act 1904 (No. 13 of 
1904), sec. 31— Judiciary Act 1903 (No. 6 of 
1903), sees. 30, 33 (b), 38— Prohibition- 
Jurisdiction of High Court to issue to Com- 
monwealth Court of Conciliation and Arbitra- 
tion—Whether prohibition original or appel- 
late jurisdiction.] — Per Griffith, C.J., Barton 
and O'Connor, J J. — The High Court has 
jurisdiction to issue prohibition to the Com- 
monwealth Court of Conciliation and Arbitra- 
tion either under sec. 75 (v.) of the Constitu- 
tion, the President of the Court being an 
officer within the meaning of that sub-ssction, 
or under sec. 33 of the Judiciary Act 1903 
and whether an appeal does or does not lie 
to the High Court. Per Isaacs, J. — Pro- 
hibition to revise or correct the proceedings 
instituted in another Court is appellate, 
not original, jurisdiction, and is therefore 
not within sec. 75 (v.). But the High Court 
has jurisdiction to issue prohibition to the 
Commonwealth Court of Conciliation and 
Arbitration because sec. 31 of the Common- 
wealth Conciliation and Arbitration Act 1904 
has not taken away that part of the appel- 
late power granted by the Constitution. The 
King and the Commonwealth Court of Con- 
ciliation and Arbitration and the President 
thereof and the Boot Trade Employees Federa- 
tion, Ex parte Whybrow & Co., (1910) 11 
C.L.R.; 1 ; 16 A.L.R., 373. 

Federal jurisdiction — Exercise of, what is— 
Two questions decided, one Federal and the 
other not — Each decision sufficient to sustain 
judgment — Court of Petty Sessions — Appeal 
to High Court, whether it lies — Judiciary Act 
1903 (No. 6), sec. 39 (2) (d)— Commonwealth 
of Australia Constitution Act (63 & 64 Vict. 
c. 12)— The Constitution, sec. 77.]— A Court 
of Petty Sessions exercises Federal jurisdic- 
tion within the meaning of sec. 39 (2) (d) of 
the Judiciary Act 1903, if it be necessary 
in the particular case for the Court to decide 
any question arising under the Constitution 
or involving its interpretation. If, however, 
whether that question is answered rightly 
or wrongly, the Court answers another ques- 



129 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 130 



tion not arising under the Constitution or 
involving its interpretation, and the Court's 
answer to such other question enables it to 
decide the case, the Court does not exercise 
Federal jurisdiction, and therefore no appeal 
lies to the High Court. Miller v. Haweia, 
(1907) 5 C.L.R., 89 ; 13 A.L.R., 583. H.C., 
Griffith, G.J., Barton, O'Connor, Isaacs and 
Higgins, JJ. 

Court of Petty Sessions — Federal jurisdic- 
tion — Exercise of, what is — Commonwealth 
of Australia Constitution, sees. 31, 76 — Consti- 
tution Act Amendment Act 1890 (No. 1075), 
sec. 282— Judiciary Act 1903 (No. 6), sec. 39 
(2) (d) — Question decided involving interpreta- 
tion of sec. 31 of Constitution — Other question 
decided involving interpretation of Common- 
wealth Electoral Act 1902 (No. 19)— Appeal to 
High Court, whether it lies.] — On a complaint 
for work and labour done at an election for 
the House of Representatives of the Com- 
monwealth Parliament, the defence being that 
Sec. 282 of the Constitution Act Amendment 
Act 1890 was a bar to the complaint, the 
Court of Petty Sessions held that sec. 282 was 
a " law relating to elections " and by virtue 
of sec. 31 of the Commonwealth Constitution, 
applied to elections for the House of Repre- 
sentatives until Parliament otherwise pro- 
vided, but also held that Parliament had 
otherwise provided by passing the Common- 
wealth Electoral Act 1902, and had thereby 
repealed sec. 282, and the Court therefore 
gave judgment for the complainant. Held, 
that in determining the second point the Court 
of Petty Sessions had not exercised Federal 
jurisdiction, and therefore that no appeal 
lay to the High Court from the judgment 
of the Court of Petty Sessions. Miller v. 
Haweis, (1907) 5 CX.R., 89 ; 13 A.L.R., 
583. H.C., Griffith, C.J., Barton, O'Connor, 
Isaacs and Biggins, J J. 

Appeal — Order on habeas corpus — Jurisdic- 
tion of High Court.] — The High Court has 
jurisdiction to entertain an appeal from the 
Supreme Court in a case of habeas corpus. 
Attorney- General for the Commonwealth v. 
Ah Sheung, (1907) 4 C.L.R., 949. H.C., 
Griffith, C.J., Barton and O'Connor, J J. 



High Court— Practice— Declaratory judg- 
ment—Abstract question of law in decision of 
which rights of parties are not involved— 
Whether High Court will decide— Rules of 
High Court 1903, Part I., Order HI., r. 1— 
Trade Marks Act 1905 (No. 20), Part VH., 
constitutionality of.] — See High Cotobt (Pbac- 
tice). Bruce v. Commonwealth Trade Marks 
Label Association, (1907.) 4 C.L.R., 1569 ; 
13 A.L.R., 582. 

Practice — Appeal to High Court— Special 
leave — Decision of inferior Court of State — 
Right of appeal to Supreme Court — Judiciary 
Act 1903 (No. 6 of 1903), sec. 35— The Con- 
stitution (63 & 64 Vict. c. 12), sec. 73.]— -See 
Appeal. Kamarooka Gold Mining Co. v. 
Kerr, (1908) 6 C.L.R., 255. 

(6) Appeal to King in Council. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 74 — Interpretation, principles of — His- 
tory of the Constitution, whether it may be 
considered — Appeal to Privy Council.] — Per 
Griffith, C.J., Barton and O'Connor, JJ. — 
The duty of the High Court in regard to 
questions under sec. 74 is to be determined 
upon consideration of the whole purview 
and history of the Constitution. Baxter v. 
Commissioners of Taxation ; Flint v. Webb, 
4 C.L.R., 1087, 1178 ; 13 A.L.R., 313 (1907). 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 74 — Questions as to limits inter se of 
constitutional powers of Commonwealth and 
State — Conflicting decisions of Privy Council 
and High Court — Whether High Court final 
arbiter upon such questions — 9 Geo. IV. c. 
83 ; 7 & 8 Vict. c. 69 and Orders in Council 
thereunder.] — Per Griffith, C.J., Barton, 
O'Connor and Isaacs, J J., Higgins, J., 
dissenting. — Upon all questions of the classes 
referred to in sec. 74 of the Constitution, 
except those in regard to which the High 
Court may by granting a certificate under 
that section have submitted itself to the 
guidance of the Privy Council, it is the High 
Court and not the Privy Council which is the 
ultimate arbiter. The High Court is not 
bound to follow a decision of the Privy Coun- 

5 



131 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 132 



oil given upon such a question without the 
certificate of the High Courfc and in conflict 
with a previous decision of the High Court 
with regard to which the grant of such a 
certificate was refused. Baxter v. Commis- 
sioners of Taxation ; Flint v. Webb, 4 C.L.R., 
1087, 1178; 13 A.L.R., 313 (1907). 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 74 — Appeal to King in Council — Certificate 
of High Court — Reasons, for granting, 
sufficiency of — Conflicting decisions of Privy 
Council and High Court.] — Per Griffith, 
C.J., Barton, O'Connor. Isaacs and Higgins, 
JJ. — The fact that there are conflicting 
decisions of the Privy Council and the High 
Court on the question is not a sufficient reason 
for granting a certificate that the question 
is one which ought to be determined by His 
Majesty in Council. Per O' Connor, J. — It is 
the duty of the High Court to refuse the 
certificate where, if the certificate were 
given, the Privy Council would be likely 
to decide the question in a manner contrary 
to the true intent of the Constitution as 
interpreted by the High Court. Per Isaacs, 
J. — Australian considerations should have a 
weighty, perhaps a dominant force, in guiding 
the judgment of the High Court in granting 
or refusing a certificate. Baxter v. Commis- 
sioners of Taxation ; Flint v. Webb, 4 C.L.R., 
1087, 1178 ; 13 A.L.R., 313. (1907). 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 74 — " Decision . . . upon any ques- 
tion," meaning of — Appeal to Privy Council.] 

— Per Griffith, C.J., Barton, O'Connor and 
Isaacs, J J. — " Decision of the High Court 
upon any question " in sec. 74 of the Con- 
stitution means what the Court decides to be 
the law with regard to that question. It 
does not refer to the judgment inter partes in 
the cause. Baxter v. Commissioners of Taxa- 
tion; Flint v. Webb, 4 C.L.R., 1087, 1178; 
13 A.L.R., 313 (1907). 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sees. 74, 109 — Question as to limits inter se 
of powers of Commonwealth and State, 
nature of — How distinguished from question 



of inconsistency between law of State and law 
of Commonwealth.] — Per Griffith, C.J., Bar- 
ton. O'Connor and Isaacs, J J. — Sec. 109 of 
the Constitution deals with the case of two 
admitted powers of legislation meeting on a 
concurrent field, and provides that in case 
of inconsistency the one shall prevail over 
the other. The cases dealt with by sec. 
74 are cases in which the question is whether 
an attempted exercise of the powers of either 
a State or the Commonwealth in such a 
manner as to interfere with the free exercise 
of the powers of the other of the two author- 
ities is or is not within the limits prescribed 
by the Constitution. The question whether 
a State Income Tax Act applied to the 
salaries of Federal officers is or is not to be 
considered as trespassing upon a region 
exclusively assigned to the Commonwealth 
is a question of the kind referred to in sec. 74. 
Per Isaacs, J. — The question whether or not 
» State Income Tax Act levying tax upon 
Federal officers proportioned to their Federal 
salaries clashes pro tanto with the Federal 
enactment that their remuneration shall be 
the full sum granted them by the Common- 
wealth is a question coming under sec. 109. 
Baxter v. Commissioners of Taxation ; 
Flint v. Webb, 4 C.L.R., 1087; 1178; 13 
A.L.R., 313 (1907). 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12))— The Constitution, 
sees. 73, 74, 76, 77 — Question as to limits 
inter se of constitutional powers of Common- 
wealth and State, what is — Question raised by 
defence whether State tax on Federal salary 
an interference with powers of the Common- 
wealth — Exercise of Federal jurisdiction by 
Court of Petty Sessions — Appeal to High 
Court, competency of — Judiciary Act 1903 
(Commonwealth) (No. 6 of 1903), sec. 39.]— 
In proceedings in a Court of Petty Sessions to 
recover income tax from a Federal officer 
in respect of his official salary, the defendant 
claimed to be exempt on the ground that 
taxation of his official salary by the State 
was an interference with the free exercise of 
the powers of the Commonwealth within the 
meaning of the rule in D'Emden v. Pedder, 1 
C.L.R., 91, and therefore impliedly prohibited 
by the Constitution. The Court of Petty 



133 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 134 



Sessions, following Webb v. Outtrim, (1907) 
A.C., 81, made an order for the amount 
claimed against the defendant, who thereupon 
appealed to the High Court. Held, that the 
question raised by the defence was a question 
as to the limits inter se of the Constitutional 
powers of the Commonwealth, and a State 
within the meaning of sec. 74 of the Con- 
stitution, that the Court of Petty Sessions was 
exercising Federal jurisdiction under sec. 39 
of the Judiciary Act 1903, and the appeal 
was competent by virtue of sub-sec. (2) 
(6) of that section as well as by sec. 73 of the 
Constitution. Baxter v. Commissioners of 
Taxation ; Flint v. Webb, 4 C.L.K., 1087, 
1178 ; 13 A.L.R., 313. H.C., Griffith, C.J., 
Barton, O'Connor and Isaacs, J J. (1907). 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12)— Power of Victorian 
Legislature (18 & 19 Vict. c. 55) — Income tax 
— Right of appeal from Supreme Court to 
Privy Council — Whether Commonwealth Par- 
liament may take away.] — Held, that a petition 
by the Commonwealth for the dismissal on 
the ground of incompetency of an appeal 
from an order of the Supreme Court of Vic- 
toria relating to the assessment of an officer 
of the Commonwealth, resident in Victoria 
and receiving his official salary in that State, 
for income tax in respect of such salary,, the 
income tax being imposed by an Act of the 
Victorian Legislature, should be dismissed. 
The Constitution Act does not authorise the 
Commonwealth Parliament to take away the 
right of appeal to the Privy Council existing 
in such case. Webb v. Outrim, (1907) A.C., 
81 ; 13 A.L.R., C.N., 1. Privy Council. 

IV. — The Executive Government ; 
Finance and Trade. 

Commonwealth of Australia Constitution 
(62 & 63 Vict. c. 12), sees. 51 (i.) (xx.) (xxxix.) 
61, 101 — Inter-State Commission — Execution 
and maintenance of provisions of Constitution 
relating to trade and commerce and of all 
laws made thereunder.] — Subject to any 
laws that may be made by Parliament as to 
the Inter-State Commission and its powers, 
the powers for the execution and maintenance 
within the Commonwealth of the provisions 
of the Constitution relating to trade and 



commerce; and of all laws made thereunder 
may be exercised by the Commonwealth 
Exeoutive. Huddart Parker & Co. Pro- 
prietary Ltd. v. Moorehead ; Appleton v. 
Moorehead, (1909) 8 C.L.R., 330 ; 15 A.L.R., 
241. H.C., Griffith, C.J.; Barton,. O'Connor, 
Isaacs and Higgins, J J. 

Immigration Restriction Acts 1901-1905— 
" Immigrants " and " prohibited immi- 
grants," who are — Whether administrative 
officers of the Commonwealth may determine 
such questions.] — For a discussion of the 
question whether the officers administering 
the Immigration Restriction Acts are the 
final arbiters as to who are, and who are not, 
" immigrants " or " prohibited immigrants," 
see Ah Sheung v. Lindberg, (1906) V.L.R., 
323 ; 27 A.L.T., 189 ; sub nom., Bex v. Ah 
Sheung, 12 A.L.R., 190. Cussen, J. (1906). 

Officer of department transferred to Com- 
monwealth — Whether Commonwealth Parlia- 
ment may reduce salary — " Existing rights " 
—Public Service Act 1900 (No. 1721), sec. 
19 — Commonwealth Constitution, sec. 84.] — 
Sec. 19 of the Public Service Act 1900 was 
merely a temporary provision to fix the 
status of the officers therein referred to when 
they should be transferred with their depart- 
ments to the Commonwealth. That section 
therefore does not, notwithstanding sec. 84 
of the Constitution, restrict the power of the 
Commonwealth Parliament to reduce the 
salaries of officers of Victorian Government 
departments transferred with those depart- 
ments to the Commonwealth. Cousins v. 
The Commonwealth, 3 C.L.R., 529 ; 12 
A.L.R., 175. H.C., Griffith, C.J., Barton 
and O'Connor, J J. (1906). 

Commonwealth Public Service Act 1902 
(No. 5 of 1902), sees. 8, 51, 60, 80— Officer of 
department transferred to Commonwealth — 
Whether salary altered — "Existing rights" 
Commonwealth Constitution, sec. 84.] — The 
provisions of the Commonwealth Public Ser- 
vice Act 1902 purporting to affect the salaries 
of officers in the public service of the Common- 
wealth apply to officers transferred with 
their departments from the several States 
to the Commonwealth as well as to other 
officers in that service, even if the effect in 



135 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 136 



particular cases is to reduce the salaries those 
officers were entitled to receive when such 
departments were so transferred. Cousins 
v. The Commonwealth, 3 C.L.R., 529 ; 12 
A.L.R., 175. H.C., Griffith, C.J., Barton and 
O'Connor; J.J. (1906). 

Public Service Act 1900 (No. 1721), sec. 19 
— Post and Telegraph Department — Transfer 
to Commonwealth — " Any Australian col- 
ony."] — See Public Service. Curley v. 
The King, (1906) V.L.R., 633; 28 A.L.T., 
12 ; 12 A.L.R., 555. 

Public Service Act 1900 (No. 1721), sec. 
19 — Post and Telegraph Department — Trans- 
fer to Commonwealth — " Officers of corres- 
ponding position " — Identity of duties.] — See 
Public Service. Curley v. The King, 
(1906) V.L.R., 633; 28 A.L.T., 12; 12 
A.L.R., 555. 

V. — The States. 

(a) Reserved Powers of State Parliament. 

Commonwealth of Australia Constitution 
(62 & 63 Vict. c. 12)) — Trade and commerce — 
Internal trade of State, interference with — 
Implied prohibition.] — The Commonwealth 
Constitution is to be construed as if it 
contained a declaration that power to make 
laws with respect to trade and commerce 
within the limits of the various States is 
reserved to the States exclusively except so 
far as the exercise of that power by the 
Commonwealth is incidental to the execution 
of some other power of the Commonwealth. 
Huddart Parker & Co. Proprietary Ltd. v. 
Moorehead ; Appleton v. Moorehead, (1909) 
8 C.L.R., 330 ; 15 A.L.R., 241. H.C., Griffith, 
C.J., Barton and O' Connor, J J. ( Isaacs and 
Higgins, J J., dissententibus). 

(6) Inconsistency of Laws. 

Rendition of fugitive offenders — Law of 
Victoria — Effect of establishment of Common- 
wealth — Commonwealth of Australia Con- 
stitution Act (63 & 64 Vict. c. 12)— The 
Constitution, sees. 108, 109 — Fugitive Of- 
fenders Act 1881 (44 & 45 Vict. c. 69).]— The 
Fugitive Offenders Act 1881 was a law in 
force in Victoria at the time of the establish- 
ment of the Commonwealth within the 



meaning of sec. 108 of the Constitution, and, 
the Parliament of the Commonwealth not 
having exercised the powers (if any) which 
it possesses to make provision in that behalf, 
the law of Victoria remains exactly the same 
as it was and the powers of the Governor, 
the Judges and the Magistrates of Victoria 
under the Fugitive Offenders Act 1881 are 
exactly as they were before the establish- 
ment of the Commonwealth. McKelvey v. 
Meagher, 4 C.L.R., 265; 12 A.L.R., 483. 
H.C., Griffith, C.J., Barton and O'Connor, 
JJ. (1906). 

Fugitive Offenders Act 1881 (44 & 45 Vict, 
c. 69) — Commonwealth of Australia Con- 
stitution Act (63 & 64 Vict. c. 12)— Authority 
of State of Victoria with regard to fugitive 
offenders — How far affected by establishment 
of Commonwealth.] — Unless the Common- 
wealth Parliament has power under the 
Constitution to make laws under sec. 32 
of the Fugitive Offenders Act 1881 or to deal 
with the surrender of fugitive offenders 
between the Commonwealth and other parts 
of the British dominions, the establishment 
of the Commonwealth has had no effect 
whatever upon the position and authority 
of the State of Victoria with regard to that 
Act. McKelvey v. Meagher, 4 C.L.R., 265; 
12 A.L.R., 483. H.C., Griffith, C.J., Barton 
and O'Connor, J J. (1906). 

Conciliation and arbitration — Common- 
wealth Court — Jurisdiction — Award incon- 
sistent with determination of Wages Board— 
The Constitution, sec. 51 (xxxv.).] — Per 
Griffith, C.J., Barton and O'Connor, JJ. 
( Isaacs and Higgins, J J., dissenting). — The 
Commonwealth Court of Conciliation and 
Arbitration has no jurisdiction to make an. 
award inconsistent with the determination 
of a Wages Board. But (per Mam curiam), 
the Court may make an award fixing the 
minimum wage payable to journeymen at a 
higher rate than that fixed by the Wages 
Board. Australian Boot Trade Employees 
Federation v. Whybrow, (1910) 10 C.L.R., 266. 
16 A.L.R., 185. 

Factories and Shops Act 1909 (No. 2241), 
sec. 39 — No person compellable to pay more 



137 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 138 



than the minimum wage unless he contraet 
so to do — Jurisdiction of Commonwealth 
Court of Conciliation and Arbitration — How 
far affected by State legislation.] — The Fac- 
tories and Shops Act 1909 (No. 2241), sec. 
39 does not affect the power of the Common- 
wealth Court of Conciliation and Arbitration 
to fix wages and conditions of labour which 
are otherwise within its jurisdiction. Aus- 
tralian Boot Trade Employees Federation 
v. Whybrow, (1910) 10 C.L.R., 266 : 16 
A.L.R., 185. HC, Griffith, G.J., Barton, 
O'Connor, Isaacs and Higgins, J J. (1910). 

(c) Interference with Instruments of Govern- 
ment. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution— 
— Doctrine of implied prohibition of inter- 
ference with Commonwealth instrumentalities 
— Whether implied in Constitution.] — Per 
Griffith, C.J., Barton, O'Connor and Isaacs, 
JJ., Higgins, J., dissenting. — The rule 
laid down in D'Emderiv. Pedder, 1 C.L.R., 91, 
at p. Ill, that when a State attempts to give 
its legislative or executive authority an 
operation which, if valid, would fetter, con- 
trol, or interfere with the free exercise of the 
legislative or executive power of the Common- 
wealth, the attempt, unless expressly author- 
ised by the Constitution, is to that extent 
invalid and inoperative — is included by 
necessary implication in the Australian 
Constitution. Webb v. Outtrim, (1907) A.C., 
81, not followed. McCulloch v. Maryland, 
4 Wheat., 316, and Deakin v. Webb, 1 C.L.R., 
585, approved and followed. Per Higgins, 
J- — The doctrine of McCulloch v. Maryland 
is inapplicable to the Australian Constitution. 
Baxter v. Commissioners of Taxation ; Flint 
v. Webb, 4 C.L.R., 1087, 1178; 13 A.L.R., 
313 (1907). 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12)— Income of Federal officer 
— Whether liable to income tax imposed by 
State— Power of State Legislature — Whether 
restricted, by Commonwealth Constitution.] — 
Held, that the respondent, an officer of the 
Commonwealth resident in Victoria and 
receiving his official salary in that State, is 



liable to be assessed in respect thereof for 
income tax imposed by an Act of the Victorian; 
Legislature. No restriction on the power of 
the Victorian Legislature in favour of such 
officer is expressly enacted by the Common- 
wealth Constitution Act, nor can one be 
implied on any recognised principle of 
interpretation applicable thereto. Webb v. 
Outtrim, (1907) A.C., 81 ; 13 A.L.R. (C.N.), 1. 
Privy Council. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— Interference by 
State with legislative or executive authority 
of Commonwealth — Implied prohibition — In- 
come Tax Acts, validity of.] — Per Griffith, 
C.J., Barton and O'Connor, J J. — The Income 
Tax Acts in so far as they purport to tax 
the emoluments of Federal officers, are 
inoperative and void. Per Isaacs, J. — These 
Acts do not infringe the doctrine of non- 
interference inasmuch as they cannot by any 
fair and reasonable intendement be read as 
impairing the usefulness or efficiency of the 
officers concerned to serve the Federal 
Government. Per Isaacs and Higgins, J J. — 
It is not an improper interference with a 
Federal agent for a State to collect from him 
a tax upon his income, on the same scale as 
from other citizens of the State, even though 
his salary as a Federal agent has to be 
included in his return. Baxter v. Commis- 
sioners of Taxation ; Flint v. Webb, 4 C.L.R., 
1087, 1178 ; 13 A.L.R., 313 (1907). 

Commonwealth of Australia Constitution 
(62 & 63 Vict. c. 12)— Power of Parliament- 
Federal nature of Constitution — Interference 
with domestic affairs of State — Implied pro- 
hibition.] — Principles of interpretation 
adopted in Peterswald v. Bartley, 1 C.L.R., 
497, and (by the majority of the Court) in 
The King v. Barger, 6 C.L.R.,' 41; 14 
A.L.R. , 374, and Attorney- General for New 
South Wales v. Brewery Employees Union of 
New South Wales {Union Label Case), 6 
C.L.R., 469; 14 A.L.R., 565, applied. 
Huddart Parker & Co. Proprietary Ltd. v. 
Moorehead ; Appleton v. Moorehead, (1909) 
8 C.L.R., 330 ; 15 A.L.R., 241. H.C., 
Griffith, C.J., Barton and O'Connor, J J. 
( Isaacs and Higgins, J J., dissentientibus). 



139 COMMONWEALTH OF AUSTRALIA CONSTITUTION. 140 



Instrumentality of State Government, what 
is — Municipal corporation engaging in trading 
enterprise.] — Semble {per Griffith, O.-JV, Bar- 
ton; O'Connor, Isaacs and Higgins, JJ.). 
Semble, assuming that a, municipal corpora- 
tion is an instrument of State government, if 
the corporation engages in a trading enter- 
prise, e.g., the supply of electricity to those 
who choose' to buy it,' it is not in respect of 
such enterprise exempt from Federal legisla- 
tion under the rule laid down in D' Emden v. 
Pedder, 1 "C.L.R., 91 ; 10 A^L.R. (C.N ), 
30. Federated Engine- Drivers and Firemen's 
Association of Australasia v. Broken Hill 
Proprietary Co. Ltd., (1911)12 C.L.R., 398; 
17 A.L.R., 285. 

' [d) Legislation in Respect of Religion. 

Defence — Compulsory military training — 
Religious objection to bear arms — Validity of 
Act — Exemption— Excuse— Defence Act 1903- 
1910 (No. 12 of 1904— No. 37 of 1910), sees. 
61, 125, 135, 138, 143— The Constitution 
(63 & 64 Vict. C. 12), sec. 116.]— The provision 
of the Defence Act 1903-1910 imposing 
obligations on all male inhabitants of the 
Commonwealth in respect of military train- 
ing do not prohibit the free exercise of any 
religion, and, therefore, are not an infringe- 
ment of sec. 116 of the Constitution. A per- 
son who is forbidden by the doctrines of his 
religion to bear arms is not thereby exempted 
or excused from undergoing the military 
training and rendering the personal service 
required by Part- XII. of the . Defence Act 
1903-1910. Krygger v, Williams, (1912) 15 
C.L.R., 366 ; 18 A.L.R., 518. H.C., Griffith, 
C.J. and Barton, J. 

(e) The State Courts. 

Judgment of High Court on appeal from 
Supreme Court — Duty of Supreme Court to 
execute— Judiciary Act 1903 (No. 6 of 1903), 
sec. 37, whether ultra vires — The Constitution, 
sec. 51 (xxxix.) — Commonwealth of Aus- 
tralia Constitution Act (63 & 64 Vict. c. 12), 
sec. v.] — Sec. 37 of the Judiciary Act. 1903 
in so far as it authorises the High Court in the 
exercise of its appellate jurisdiction to remit 
a cause to the Supreme Court for the execu- 
tion of the judgment of the High Court, 



and imposes upon the Supreme Court, the 
duty of executing the judgment of the High 
Court in the same manner as if that judgment 
were the judgment of the- Supreme Court 
is a valid exercise by Parliament of the 
power conferred by sec. 51 (xxxix.) of 
the Constitution. Bayne v. Blake, (1908) 
5 C.L.R., 497; 14 A.L.R., 103. H.C., 
, C.J., Barton and O' Connor, J J. 



Judgment of High Court on appeal from 
Supreme Court — Judgment remitted to 
Supreme Court for execution — Officer of 
Supreme Court — Whether subject to control 
of High Court.] — The High Court may 
directly order an officer of the Supreme Court 
to obey a judgment of the High Court. Bayne 
v. Blake, (1908> 5 C.L.R., 497; 14 A.L.R., 
103. H.C., 'Griffith, C. J., Barton and O'Con- 
nor, JJ. 

Judgment of High Court on appeal from 
Supreme Court— Judgment remitted to Supreme 
Court — Stay of proceedings, jurisdiction of 
Supreme Court to order.]— T See Appeal. 
Bayne v. Blake, ..(1908) 5 C.L.R., 497; 14 
A.L.R., 103. 

Patent, application for — Opposition — State. 
Patents Act— Transfer of administration to 
Commonwealth pending proceedings — Appeal 
to State Supreme Court — Jurisdiction — Pa- 
tents Act 1890 (No. 1123), sec. 33— Patents 
Act (Federal) (No. 21 of 1902).]— -See Ap- 
peal. In re McLeod's Patent ; Burton v. 
McLeod, (1906) V.L.R., 488; 12 A.L.R., 
335. 

Supreme Court — Jurisdiction — Habeas cor- 
pus — Applicant held under restraint under 
authority of Commonwealth — Immigration 
Restriction Amendment Act 1905 (No. 17), 
sec. 14 (13b)— Judiciary Act 1903 (No. 6) Part 
VI.] — See Habeas Corpus. — Ah Sheung v. 
Lindberg, (1906) V.L.R., 323; 27 A.L.T., 
189 ; sub nom., Rex v. Ah Sheung, 12 A.L.R., 
190. 



COMMONWEALTH PUBLIC SERVICE 
ACTS. 

See PUBLIC SERVICE. 



141 



COMPANY. 



142 



COMPANY. 

I. Registration ■ Name . . . . 141 

II. Shares . . . . . . . , 142 

(a) Liability of Shareholders 

Generally . . ... . . 142 

(6) Calls 144 

(c) Dividends . . .. . . 146 

(d) Transfer .. . . . . 146 

III. Management and Administra- 
tion 149 

(a) Interference by Court . . 149 

(6) Meetings 149 

(c) Contracts . . . . . . 152 

(d) Mortgages 153 

(e) Sale of Assets .. . . 153 
(/) Notice by Company . . 154 

IV. Income Tax . . . . . . 154 

(a) Profits 154 

(6) Deductions . . . . . . 156 

V. Security for Costs . . .=.-- 157 

VI. Criminal Liability .. .. 157 

Vll. Trustee Companies . . . . 158 

VIII. Insurance Companies .. .. 158 

IX. Winding up . . . . . . 159 

(a) Jurisdiction ; Resolutions 159 

(6) Liquidators . . . . 160 

(c) Examination of Witnesses 161 

\d) Vontributories . . . . 161 

(e) Debts ; Expenses of Liquida- 
tion ; Priorities . . . . 162 

(/) Distribution of Surplus 

Assets . . . . 163 

I. ; — Registration : Name. 

Companies Act 1896 (No. 1482), Div. VHI.~ 
Defunct companies — Restoration of name to 
Register — No secretary or directors — Direc- 
tions for calling meeting of shareholders.] — 
Order made for the restoration to the register 
of the name of a company which had been 
struck off the register. Direct-ions given for 
calling a meeting of shareholders there being 
no secretary and no directors. In re Great 
Southern Land Investment Co. Ltd., (1910) 
V.L.R. 150; 31 A.L.T., 129; 16 AX.E., 14. 
Hodges, J. 

Company— Name struck off Register- 
Motion to restore name— Parties— Registrar- 
General— Companies Act 1896 (No. 1482), 
Div. VDX — Defunct companies.]— The Regis- 



trar-General should be served with notice of a 
motion that the name of a company, which 
has been struck off the Register of Companies 
should be restored thereto. In re Great 
Southern Land and Investment Co. Ltd., 
(1910) V.L.R. 150; 31 A.L.T., 129; 16 
A.L.R., 14. Hodge*, J. 

Trade name — Name adopted by company — 
Similarity to name of another company — Both 
companies carrying on the same business — 
Likelihood of confusion — Burden of proof.] — 
In an action by one company to prevent, 
another company from using a name so like- 
that of the plaintiff company as to be likely 
to deceive, the plaintiff company must show 
that it is reasonably certain that what the 
defendant company is about to do will cause 
imminent and substantial damage to the 
plaintiff company. Royal Insurance Co. Ltd. 
v. Midland Insurance Co. Ltd., 26 R.P.C., 95, 
followed. Held, that the name of the appel- 
lant company was not so like that of the 
respondent company as to render it reasonably 
certain that anyone intending to employ 
the respondent company and make them 
trustees under a will or settlement or employ 
them as agents, would be led to believe that 
the appellant company was the respondent 
company. The Bendigo and Country Dis- 
tricts Trustees dkc Co. Ltd. v. The Sandhurst, 
and Northern District Trustees, &c, Co. Ltd., 
(1909) 9 C.L.R., 474; 15 A.L.R., 565. 
Griffith, C.J., O'Connor and Isaacs, J J. 

Trade Marks Act 1905 (No. 20 of 1905)— 
Trade mark — Infringement — User not as a 
trade mark — Trade name — Name adopted by 
company — Similarity to name of another, 
company — Likelihood of confusion — Class of 
business carried on — Actual and prospective — 
Injunction] — See Ttcade Marks and Trade 
Names. Austral Canning Co. Proprietary 
Ltd. v. Austral Grain and Produce Pro- 
letary Ltd., 34 A.L.T., 37 ; 18 A.L.R., 354, 

II. — Shares. 

la) Liability of Shareholder* Generally. 

Companies Act 1890 (No. 1074)— Company 
— Agreement to take shares — Contract thereby 
implied.]. — Per Cussen, J. — " Where a person 
agrees to become a member of a company 



143 



COMPANY. 



144 



under the Act, either by subscribing the 
memorandum and articles, or by allotment, or 
transfer, or after transmission, or otherwise, 
I think there must be taken to be implied, 
so far as it is not expressed, a contract to 
fulfil any obligation imposed by, or in pur- 
suance of the Act, the conditions of the mem- 
orandum or the regulations in the articles, 
involving the payment of money by him to the 
company. Other obligations may be of so 
direct a nature as between the company and 
the individual as to be implied also, but the 
obligation to pay moneys to the company 
is all 1 am at present concerned with. The 
Land Mortgage Bank of Victoria Ltd. v. 
Reid, (1909) V.L.R. 284, at p. 292 ; 31 
A.L.T., 9, at p. 12 ; 15 A.L.R., 234, at p. 
237. (But see Goldsmith v. The Colonial 
Finance, Mortgage, Investment and Guarantee 
Corporation Ltd., 8 C.L.R. 241 ; 15 A.L.R., 
431. 

Companies Act 1890 (No. 1074), sec. 16— 
Articles of association — Registration of — Ef- 
fect thereof — " Shall bind the Company and 
its members" — Meaning of members.]— The 
provision in sec. 16 of the Companies Act 
1890 which provides that the articles of 
association " when registered shall bind the 
company and the members thereof to the 
same extent as if each member had sub- 
scribed his name and affixed his seal thereto, 
and there were in such articles contained 
a covenant on the part of himself his heirs 
executors and administrators to conform to 
all the regulations contained in such articles 
subject to the provisions of this part of the 
Act " is to be limited to binding members 
while they are members. The Land Mort- 
gage Bank of Victoria Ltd. v. Reid, (1909) 
V.L.R., 284 ; 31 A.L.T., 9 ; 15 A.L.R., 234. 
Cussen, J. 

Company — Shares — Certificate stating 
shares fully paid up — Incorrectness of State- 
ment — Purchaser without actual notice — Es- 
toppel — Constructive notice — Articles of As- 
sociation.] — Where a Company has issued a 
certificate for shares which states that such 
shares are fully paid up, the. Company and the 
liquidator of the Company are estopped from 
alleging any mistake or inaccuracy in such 



statement as against a person who has been 
thereby induced to believe that such shares 
were fully paid up, and, acting on that belief 
and without knowledge of any liability on the 
shares, purchased them as fully paid up 
shares. Such estoppel applies even where the 
Company has acted ultra vires in issuing the 
shares as fully paid up. Such purchaser 
is not to be presumed to have had notice 
from the articles of association that such 
shares were not fully paid up ; nor, where 
there is nothing to excite suspicion, is there 
any obligation on him to search the Articles 
in order to see if the statement in the certifi- 
cate was true or false. In re Victoria 
Silicate Brick Co. Ltd. (in liquidation) ; Ex 
parte Martin, (1913) V.L.R. , 71 ; 34 A.L.T., 
110; 18 A.L.R., 557. F.C., a' Beckett, 
Hodges and Cussen, J J. 

Companies Act 1890 (No. 1074), sec. 16, 
— Company — Calls — Shares — Reduction of 
Capital — Cancellation of forfeited Shares- 
Effect on liability.] — Quaere, whether the fact 
of the cancellation of shares extinguishes the 
liability of their former holder under the 
Articles of Association. Randt Gold Mining 
Co. Ltd. v. Wainwright, (1901) 1 Ch., 184, 
doubted. The Land Mortgage Bank ol Vic- 
toria Ltd. v. Reid, (1909) V.L.R., 284 ; 31 
A.L.T., 9 ; 15 A.L.R., 234. Cussen, J. 

(6) Calls. 

Companies Act 1890 (No. 1074), sec. 16— 
Company — Calls — Forfeited shares, liability 
upon — Articles of association — Statute of 
Limitations — Cancellation of shares — 
Specialty debt.]— L. was a shareholder in a 
company limited by shares, incorporated 
under the Companies Acts. In 1896 a call 
was made which was not paid. In December, 
1900, the shares were forfeited for non-pay- 
payment of the first call. In 1901 the capital 
of the company was reduced and the shares 
in question cancelled. Clause 30 of the 
articles of association provided that any 
member whose shares were forfeited should 
be liable to pay all calls, instalments, interest 
and expenses, owing upon or in. respect of 
such shares at the time of forfeiture, together 
with interest at ten per cent, per annum-. In 



145 



COMPANY, 



H3 



1908 an action was brought for the recovery 
of the amount of the calls with interest 
thereon. Held, that the liability of L. in her 
character as a member was extinguished by 
the forfeiture ; that he* liability was one 
arising by virtue of an implied contract made 
when she became a member, to fulfil any 
obligations imposed by or in pursuance of the 
Act, the conditions of the memorandum or 
the regulations in the articles of association 
involving . the payment of money to the 
company ; that this was prima facie, a liability 
arising on » simple contract ; and that as 
the Act did not provide that a liability arising 
upon forfeiture should be deemed to be or to 
give rise to a specialty debt, the action was 
barred after six years from the date of for- 
feiture. The Land Mortgage Bank of Vic- 
toria Ltd. v. Raid, (1909) V.L.R., 284; 31 
A.L.T., 9 ; 15 A.L.R., 234. Cussen, J. 
(And see Goldsmith v. The Colonial Finance, 
Mortgage, Investment and Guarantee Corpora- 
tion Ltd., 8 C.L.R., 241 ; 15 A.L.R., 431. 

Companies Act 1890 (No. 1074), sec. 16— 
Articles of association, registration of — Effect 
thereof — Moneys payable by any member to 
be deemed a specialty debt — Provision in 
articles of association that members whose 
shares are forfeited shall continue liable for 
calls and interest thereon due at forfeiture— 
Whether such liability is a specialty debt.J — 
Where the registered Articles of Association 
of a Company contained a provision that any 
member whose shares shall be forfeited shall, 
notwithstanding be liable to pay all calls, 
instalments, interest and expenses owing 
upon or in respect of such shares at the time 
of forfeiture together with interest at ten 
per cent, per annum. Held that the liability 
under such provision, in respect of calls and 
interest owing on shares at the date of for- 
feiture is not a specialty debt within sec. 10 
of the Companies Act 1890, inasmuch as the 
provision in that section making such lia- 
bility a specialty debt applies to only those 
moneys which are payable by » member in 
bis character of member. The Land Mort- 
gage Bank of Victoria Ltd. v. Reid, (1909) 
V.L.R., 284 ; 31 A.L.T., 9 ; 15 A.L.R., 234. 
Cussen, J. [See Gillespie & Co. Ltd. v. 



Reid, (1905) V.L.R., 101; 26 A.L.T., 154) 
11 A.L.R., 12.] 

Calls on shares in no-liability company-r- 
Power in will to postpone sale of personal pro- 
perty — Retention of shares by trustees-r- 
Whether liable for calls paid by them.l-.Sce 
Trusts and Trustees. Orunden v. Nissen, 
(]!)11)V.L.R.,267; 33A.L.T..U ; 17A.T..R., 
260. 

(c) Dividends. 

Will— Construction — Shares in company 
owned by testator- Bequest to life tenant of 
dividends and to remainderman absolutely — 
Bonus declared by company on shares — New 
shares issued and offered to shareholders — 
Bonus applicable in payment therefor— 
Whether bonus capital or income.]- -See 
Tenant eor Life and Remainderman. In 
re Smith ; Edivards v. Smith, 29 A.L.T., 173 ; 
11 A.L.R., 22. 

Tenant for life and remainderman — DivU 
dends declared by company., whether capital 
or income.] — See Will. In re Longley ; 
Reid v. Silke, (1906) V.L.R., 641 ; 28 A.L.T., 
82 ; 12 A.L.R., 499. 

(d) Transfer. 

Companies Act 1890 (No. 1074), sec. 23— 
Transfer of shares— How far right of transfer 
may be restricted.] — Sec. 23 of the Companies 
Act 1890 does not prevent restrictions being 
placed on the right to transfer shares in a 
company, even very general restrictions, so 
long as, possibly, the right of transfer is not 
altogether stopped. In re Australian Mont 
de Piete Loan, <tic, Co. Ltd. ; Ex parte 
Alexander, (1907) V.L.R., 660; 29 A.L.T., 
58 ; 13 A.L.R., SIX Cusxen, J. 

Companies Act 1890 (No. 1074), sees. 23, 
3fi — Transfer of shares — Power to refuse to 
register transfer conferred in absolute terms — 
How such power limited.] — A power to refuse 
to register any transfer of shares, although 
the terms in which it is conferred upon the 
directors are absolute and general, is to be 
controlled in the interests of the shareholders 
and of the transferees and possibly, also, 



147 



COMPANY. 



148 



in the interests of the creditors of the com- 
pany and of the transferrors. ' Where the 
directors in the exercise of such a power have 
declined to register 'a transfer, the Court, upon 
application to it by the transferee to rectify 
the register of the company, will not set aside 
the decision of the directors if they have acted 
honestly and within their powers. In re 

Australian Mont de Piete Loan, <5ec, Co. Ltd. ; 

Ex parte Alexander (1907) V.L.R., 600 ; 29 
A.L.T., 58 ; 13 A.L.R., 513. Cussen, J. 

Company — Transfer of shares— Powers of 
directors — Refusal tp . register transfer — 
Shares purchased by business rivals, of com- 
pany.]— -One of the articles of association of a 
trading company provided that " The 
directors may, if they think . fit, decline |° 
register, any transfer of. shares, except trans- 
fers by operation of law." Held, that the 
directors had power to refuse ■ to register 
transfers of shares in the company to persons 
engaged in and conducting a, rival business, 
and who were stated to be actually desirous 
of purchasing the' company's . business. In 
re Australian Montde Piete Loan, &c, Co. 
Ltd. : Ex parte Alexander, (1907) V.L.R., 
660 ; 29 A.L.T., 58 ; 13 A.L.R., 513. Cue- 
sen, J. 

Transfer of share — Unnecessary delay in 
registration — Ante-dating registration to date 
upon which shares should have been regis- 
tered — Jurisdiction of Court.! — Semble, the 
Court has power, where there has been 
unnecessary delay in rectifying the register, 
to direct that the date on which the transfer 
of shares in a company should have been 
registered shall be entered as the date of the 
transfer. In re Blackwood ; Power v. Mel- 
bourne Flour Milling Co. Proprietary Ltd., 
(1908) V.L.R., 517; 30 A.L.T., 14; 14 
A.L.R., 368. Cussen, J. 

Companies Act 1896 (No. 1482), sec. 168 (2) 
— Transfer of shares for nominal consideration 
in order to avoid liability— Shares of deceased 
testator — Liability of executor.] — Sec. 168 
(2) of the Companies Act 1896 applies to a 
transfer by an executor of shares in a com- 
pany belonging to the estate ot his testator. 
In re Blackwood ; Power v. Melbourne 'Flour 
Milling Co. Proprietary Ltd., (1908) V.L.R., 



517 ; 30 A.L.T., 14 ; 14 A.L.R., 368. Cm- 
sen, J. 

Trusts Act 1901 (No. 1769), sec. 2— Shares 
not fully paid up held by testator at death- 
Distribution of assets of estate by executor— 
Whether necessary to reserve portion for pay- 
ment of calls — Transfer of shares for nominal 
consideration to avoid liability — Whether 
executor liable — Companies Act 1896 (No. 
1482), sec. 168 (2) 1— Sec. 2 of the Trusts Act 
1901 is a special enabling section for the 
benefit of executors, and is intended to apply 
to every case falling naturally within the 
words, so that in certain cases.it may, so far 
as an executor's personal liability is concerned, 
cut down the effect which, standing alone, 
sec. 168 (2) of the Companies Act 1896 would 
have. In re Blackwood ; Power v. Melbourne 
Flour Milling Co. Proprietary Ltd., (1908) 
V.L.R., 517; 30 A.L.T., 14; 14 A.L.R., 
368. Cusucn, J. (1908). 

Transfer of shares by executor — Registra- 
tion delayed— Distribution of assets of testa- 
tor's estate— Facts insufficient to justify 
determination on originating summons.] — 

Where the question to be determined on an 
originating summons was whether, having 
renard to certain facts, the executor of a will 
could safely and properly, and should he, 
hand over the remaining assets in the testa- 
tor's estate to the sole beneficiary under the 
will without making any provisions for any 
liability for calls made after » certain date 
on shares not fully paid up in an incorporated 
company, of which shares the testator was 
the registered holder, and which the executor 
had previously to such date transferred, in 
order to free the estate from contingent 
liability, for » nominal consideration to the 
executor and for a consideration to be patfl 
to the transferee upon the transfer being regis- 
tered, which transfer was not registered till 
subsequently to such date : Held, that no 
order or declaration could be made which 
would justify the executor, on the facts as 
they then stood, in distributing the assets : 

In re Blackwood ; Power v. Melbourne Flour 
Milling Co. Proprietary Ltd., (1908) V.L.B., 

517 ; 30 A.L.T., 14 ; 14 A.t.R., 368. Cue- 
sen, J. 



149 



COMPANY. 



150 



III. — Manaobmbnt and Administra- 
tion. 

(a) Interference by Court. 

Company — Management of internal affairs 
— Injunction— When Court will interfere by. ) 
— The rule in F.oss v. Harbottle, 2 Hare, 461, 
does not apply to «, case where a company 
in regard to the management of its internal 
affairs does or attempts to do that which it is 
not lawful for the company to do ; in such a 
case the Court will interfero by way of 
injunct ion. Oliver v. North Nuggetty Ajax 
Co. . No Liability, ( 1912) V.L.R. • 416 ; 34 
A.L.T., 58; 18 A.L.R., 309. Madden, 
C.J. 

(6) Meetings. 

Ccmpanies Act 1890 (No. 1074), sec. 67— 
Proceedings at meetings of company, how 
proved — Minutes not entered in minute 
book ]— Sec. 67 of' the Companies Act 1890 
is an enabling section, and, although no 
minutes have been entered in a minute book, 
the proceedings of the company can be 
proved otherwise by any admissible evidence. 
McLean Brothers & Bigg Ltd. v. Qrice, 4 
C.L.R., 835 ; 13 A.L.R., 77. H.C., Griffith, 
C.J., Barton and O'Connor, J J. (1907). 

Companies Act 1890 (No. 1074), sec. 54— 
Printed copy of resolution of shareholders for- 
warded to Registrar-General — Presumption 
against fraud — Validity of resolution, prima 
facie evidence of J — By reason of the pre- 
sumption against fraud in the carrying out of 
duties to be performed under an Act of Par- 
liament, a certified copy of a printed copy of a 
resolution for the voluntary winding-up of a 
company forwarded to the Registrar -General 
by the company in pursuance of sec. 54 is 
prima facie evidence of a valid resolution. 
McLean Brothers & Bigg Ltd. v. Qrice, 4 
C.L.R., 835 • 13 A.L.R., 77. H.C., Griffith, 
C.J., Barton and O'Conrior, JJ. (1907). 

Evidence— Proceedings of corporation — 
Resolution passed at meeting of shareholders 
— Presumption that quorum present at meet- 
ing.! — Where an Act is done which can be 
done legally only after the performance of 
some prior act, proof of the latter carries with 



it a presumption of the due performance 
of the prior act. This presumption applies 
to the proceedings of corporations, and, there- 
fore, prbof of the passing of a resolution for 
the voluntary winding-up of a company is 
prima facie evidence that, if a quorum was 
necessary at the meeting at which the resolu- 
tion was passed, such quorum was present. 
McLean Brothers ■& Bigg Ltd. v. Qrice, 4 
C.L.R., 835 ; 13 A.L.R., 77. H.O., Griffith, 
C.J., Barton and O'Connor, JJ. (1907). 

Omnia praesumuntur rite esse acta — Pre- 
sumption afforded by the records of transac- 
tions required by law to be kept — Proceedings 
at meeting of shareholders, validity of — 
Printed copy of resolution forwarded to Regis- 
trar-General — Notice of winding-up resolu- 
tion — Publication in Government Gazette — 
Companies Act 1890 (No. 10741, ss. 54. 118.]— 
It was proved that a resolution for the 
voluntary winding-up of a, company was 
recorded in writing,, and signed by the 
chairman of the meeting of shareholders 
at which the resolution was passed, and that 
a copy was sent to the Registrar-General 
and recorded by him, and that, a copy was 
published in the Government Gazette. Held, 
that there was prima facie evidence that all 
that took place, at the meeting was, done 
lawfully, and, therefore, if a quorum was 
requisite at such meeting, that there was such 
a quorum present. MqLean Brothers d: Bigg 
Ltd. v. Grice, 4 C.L.R., 835 ; 13 A.L.R., 77 ; 
H.C., Griffith, C.J., Barton and O'Connor, 
J J. (1907). ' 

Company— General meetings-Election of 
Directors — Nominations — Informality — Error 
in Company's name — Mode of election — 
Chairman's powers— Right of meeting to 
discuss and to complete business ] — Part of 
the business at a general meeting of a gold- 
mining company named " North Nuggetty 
Ajax Co. No Liability " was the election of 
directors to fill three vacancies on the Board ; 
the chairman rejected the nominations of 
two of the c,audidates on the ground that in 
their nomination papers the company for 
which they were nominated wa3 called the 
" North Nuggetty G. M. Co. No Liability," 
and then, after refusing to accept a motion 



151 



COMPANY: 



152 



that his ruling be disagreed with and also 
refusing to permit any discussion on the 
matter, he, without putting to the vote of 
the meeting the names of the remaining 
candidates (who were three in number) 
declared that they were elected to fill the 
vacancies, and he thereupon announced that 
the business was concluded and that the 
meeting was closed, and together with some 
other shareholders, left the meeting : Held, 
that the chairman should not have rejected 
such nominations, as it was reasonably 
clear to what company and to what vacancy 
they related. Held, also, that the election 
of the three candidates declared by such 
chairman to be elected was invalid, as the 
articles of the company contained no pro- 
vision that where the number of candidates 
duly nominated was equal to the number of 
"vacancies, the ehairman was to have power to 
declare them elected without submitting 
their names to the vote of the meeting. 
Held, further, that as long as there remained 
to be dealt with any business reasonably 
and properly pertinent to the business of the 
meeting, the shareholders thereat were 
entitled to put their views and to have the 
vote of the meeting with regard thereto ; 
and that the chairman could not, by leaving 
the chair, terminate the meeting before such 
business was disponed of. Oliver v. North 
Nugqetty Ajax Co. No Liability, (1912) 
V.L.R., 416 ; 34 A.L.T., 58 ; 18 A.L.R., 309 ; 
Madden, C.J. 

Company — Election of directors— General 
meeting improperly declared closed by chair- 
man — Right oi meeting to discuss and com- 
plete business — Names oi candidates for 
directorships not separately put to and voted 
on by meeting] — Part of the business of a 
general meeting of a, gold mining company 
was the election of directors. The chairman 
improperly rejected the nominations of cer- 
tain candidates, refused to accept a motion 
that his ruling be disagreed with, and declared 
the remaining candidates elected. He then 
announced that the business was completed 
and that the meeting was closed, and, to- 
gether with certain other shareholders, left 
the meeting. After the departure of the 
chairman and such other shareholders, the 



remaining shareholders elected a new chair- 
man and thereupon elected three persons as 
(directors to fill the vacancies above referred 
to . Held (but not without doubt), that such 
persons were, for the time being, to be re- 
garded as duly elected although their names 
were not separately put to and voted upon 
by the meeting. Oliver v. North Nuggetty 
Ajax Co. No Liability, (1912) V.L.R., 41U; 
34 A.L.T., 58; 18 A.L.R., 309. Madden, 
C.J. (1912). 

(c) Contracts. 

Director with contractual rights against 
company — Concurrence in acts rendering 
company unable to perform contract—; 
Whether a waiver of rights of director.] — The 
mere concurrence of a person in his capacity 
as director of a company in acts, which render 
such company unable to perform a contract 
then existing between him and the company, 
does not amount to a waiver by him of his 
personal rights in respect of a breach of con- 
tract by the company resulting from such 
acts. Glass v. Pioneer Rubber Works of 
Australia Ltd., (1906) V.L.R., 754; 28 
A.L.T., 64 : 12 A.L.R., 529. F.C., a' Beckett, 
A.O.J. , Hodyes and Chomley, J J. 

Contract with company — Implied from 
articles of association and conduct of the 
parties. 1— The articles of association, of a 
company may express the terms upon which 
a person may contract with the company, 
and, if acted upon, an agreement between 
such person and the company on which either 
party may sue may bo implied, partly from 
the articles and partly from the conduct of 
the parties. Glass v. Pioneer Rubber Works 
of Australia Ltd... (1906> V.L.R., 754; 28 
A.L.T., 64 ; 12 A.L.R., 529. F.C., u Beckett, 
A.-G.J., Hodges and Chomley,, JJ. 

Instruments Act 1890 (No. 1103), sec. 208— 
Memorandum of contract contained in several 
documents — Agreement to act as manager of 
company — Agreement implied from articles 
of association and conduct of parties-] — See 
Contract or Agreement. Glass v. Pioneer 
Rubber Works of Awtralia Ltd., (1906) 
V.L.R., 754; 28 A.L.T., 64; 12 A.L.R., 
529. 



i53 



COMPANY. 



154. 



(d) Mortgages. 

Company — Mortgage— Over uncalled capi- 
tal — Indenture containing recitals — Insertion 
by mistake — Rectilication— Companies Act 
1896 (No. 1483.1, sec 53.]— A company 
registered under the Companies Act 1890 
executed a mortgage over its uncalled capital. 
The requirements of section 53 of the Com- 
panies Act 1896 were complied with. The 
indenture contained recitals which were held 
by the Court to have been inserted by mutual 
mistake. Held, that the Court wa= not 
precluded from rectifying the instrument 
merely because of the incidents attached to it 
by Statute. Caulfield, Elsternwick and Mal- 
vern Tramway Co. v. The Royal Bank of 
Australia Ltd., 33 A.L.T., 14; 17 A.L.R., 91. 
a'Beckett, J. (1911). 

Companies Act 1890 (No. 1074), sec. 235— 
Transfer of Land Act 1890 (No. 1149), sec. 
59 — Mortgage by mining company — Registra- 
tion, sufficiency of — Land under general law.] 
— Where a mining company gives a mortgage 
over land under the Transfer of Land Act, 
registration of the instrument under that 
Act is the only registration necessary in order 
to comply with the requirements of sec. 235 
of the Companies Act 1890. The provision 
requiring registration with the Registrar- 
General applies only to land under the 
general law. In re Transfer of Land Act ; 
Ex parte Coronation Syndicate Mining Co. No 
Liability, (1911) V.L.R., 78 ; 32 A.L.T., 129 ; 
17 A.L.R., 39. F.C., a' Beckett, Hodges and 
Hood, J J. 

(e) Sale of Assets. 

Mining company — No liability company — 
Sale of assets by majority of shareholders — 
Payment to be taken in part by shares in 
another company in another State — Com- 
panies Act 1890 (No. 1074), Part n.]— A Vic- 
torian No Liability mining company has no 
authority to sell its assets by resolution of a 
majority of its shareholders and take pay- 
ment in part by shares in a Limited Liability 
company in another State. Ellison v. 
Ivanhoe Cold Mining Co. No Liability, 23 
V.L.R., 224; 19 A.L.T., 104; 3 A.L.R., 
209, distinguished. Manning v. Tewksbury 



Freehold '■ Cold Dredging Co* No Liability, 
(1908)V.L.R., 50; 29 A.L.T., 78 ; 13 A.L.R., 
547. Hood, J. 

(f) Notice by Company. 

Landlord and Tenant Act 1890 (No. 1108), 
sec. 92— Eighth Schedule— Notice of intention 
to apply to justices to recover possession — 
Signature of notice, sufficiency of — Applica- 
tion by corporation — Name of corporation 
signed by agent authorised so to do.] — See 
Landlord and Tenant. Equity Trustees 
Executors and Agency Co. Ltd. v. Harslon, 
(1908) V.L.R., 23; 29 A.L.T., 131 ; 13 
A.L.R., 686. 

IV. — Income Tax. 

(a) Profits. 

Company — Income tax — "Profits" of 
company, what are — Income Tax Act 1903 
(No. 1819), sec. 9.] — Sec. 9 of the Income Tax 
Act 1903 has not the effect of rendering tax- 
able as income profits of a company which 
would not be income in the ordinary sense of 
that term. Webb v. Australian Deposit 
and Mortgage Bank Ltd., (1910) 11 C.L.R., 
223 ; 16 A.L.R., 446. H.C., Griffith, C.J., 
O'Connor, Isaacs and Higgins, J J. 

Income Tax Act 1903 (No. 1819), sec. 9— 
Companies Act 1896 (No. 1482), sec. 88 — 
Profits of company — Reduction of capital — 
Receipts in excess of amount of reduced 
capital — Whether such receipts may be 
capital.] — The fact of the reduction of the 
capital of a company, pursuant to sec. 88 
of the Companies Act 1896, is not by itself 
decisive of the question of what are the profits 
of the company for the purposes of the 
Income Tax Acts. Receipts beyond the 
honestly estimated value of assets representing 
the reduced amount of capital may for such 
purposes be capital moneys and not profits. 
Webb v. Australian Deposit and Mortgage 
Bank Ltd., (1910) 11 C.L.R., 223 ; 16 
A.L.R., 446. H.C., Griffith, C.J., O'Connor, 
Isaacs and Higgins, JJ. 

Income Tax Act 1903 (No. 1819), sec. 9 (1), 
(2)— Whether tax payable by trading company 
on ly — "Profits," meaning of— Income Tax 
Act 1895 (No. 1374), ss. 2, 7 (e).]— The use 



155 



COMPANY. 



156 



of the word " profits " in, sec. 9 (1) of the 
Income Tax Acts 1903 does not confine the 
payment of income tax to trading companies 
only. Quaere, whether the " profits " re- 
ferred to in the section are those from which 
dividends might legally, be payable. In re 
Income Tax Acts (1907> V.L.R., 185 ; 28 
A.L.T., 168; 13 A.L.R., 31. F.C., Hood, 
Cussen and Chomley, J J. 

Income Tax Act 1903 (No, 1819), sec. 9 (1)— 
" Profits " of company, what are — Mutual 
benefit association incorporated as a company 
— Profits of club established for benefit of 
members and other persons — Subscriptions by 
members to benefit funds — Interest on invest- 
ment of benefit funds — Income Tax Act 1895 
(No. 1374), sees. 2, 7 (e)— Companies Act 1890 
(No. 1074), sec. 181.] — The taxpayer was an 
association registered under the Companies 
Act 1890 whose main object was the promo- 
tion of the welfare of persons carrying on a 
certain specified business, which was achieved 
by the establishment of an ordinary club to 
which persons other than members of the 
association (called club members) might 
belong, and also by the establishment of 
certain benefit funds participation in which 
was confined to members of the association 
and their families. By the rules of the 
association its clear net profits for each 
financial year were to be paid into the benefit 
funds, and in addition a fixed part of the 
subscriptions of members of the association 
was to be paid into such funds. Held, that 
income tax was payable on the whole of the 
profits of .the taxpayer ; that not only should 
the profits of the club be included, but that 
in estimating the profits the entrance fees 
and subscriptions of members of the associa- 
tion, and all moneys received by way of 
interest from the investment of the benefit 
funds, should also be taken into consideration. 
In re Income Tax Acts, (1907) V.L.R., 185 ; 
28A.L.T., 168; 13 A.L.R., 31. F.C., Hood, 
Cussen and Chomley, J J. 

Income Tax Act 1903 (No. 1819), sec. 11 (1) 
—Companies Act 1890 (No. 1074), sec. 334— 
Income of life assurance company — Pre- 
miums in respect of " insurances or assur- 
ances " — Consideration for annuities.] — An- 



nuities granted by a company carrying on the 
business of life assurance are within the term 
" insurances or assurances " in sec. 11 (1) 
of the Income Tax Act 1903, and the con- 
siderations received by the company for them 
are premiums in respect of insurances or 
assurances and form part of the amount 
which under that section is the basis of ascer- 
taining the taxable amount of the income 
of the company. In re Income Tax Acts ; 
In re Australian Mutual Provident Society, 
(1913) V.L.R., 42; 34 A.L.T., 118; 18 
A.L.R., 524. F.C., a' Beckett, Hodyes and 
Cussen, J J. (1912). 

Income Tax Act 1903 (No. 1819), sec. 9— 
Company — Registered in Victoria — Purchase 
and sale of land in New South Wales on behalf 
of Company to be formed — Transactions of 
company in Victoria — Profit, whether earned 
in Victoria — Re-sale of land by promoter of 
company — Contracts taken over' by company 
— Purchase money payable by instalments — 
Tax on sums not yet received.] — See Income 
Tax Acts. In re Income Tax Acts ; Ex 
parte Quat Quatta Co., (1907) V.L.R., 54; 
28 A.L.T., 100 ; 12 A.L.R., 526. 

Income Tax — Company — Profits — Company 
formed to realize assets of companies in liquida- 
tion — Surplus proceeds of realization — Busi- 
ness of company — Income Tax Act 1903 (No. 
1819), sec. 9.] — See Income Tax Acts. Mel- 
bourne Trust Limited v. Commissioner of 
Taxes, (1912) 15 C.L.R., 274 ; 18 A.L.R., 497. 

(b) Deductions. 

Income Tax — Deductions — Company formed 
for one venture — Profits from venture — De- 
duction of promotion expenses.] — Law costs 
and preliminary expenses incurred in the 
promotion of a company formed for one 
venture may, in assessing income, be deducted 
from the gross profits of the venture. In re 
Income Tax Acts; Ex parte Quat Quatta 
Co., (1907) V.L.R., 54; 28 A.L.T., 100: 
12 A.L.R., 526. F.C., a' Beckett, A.C.J. , 
Hodges and Chomley, J J. 

Income Tax Act 1903 (No. 1819), sees. 5, 
9 — Taxation of company — Deductions, author- 
ity for making — Income Tax Act 1895 (No. 



157 



COMPANY; 



158 



1374), sec. 9r— Income Tax Act 1896 (No. 
1467), sec. 6,]— <See Income .Tax Acts. Re 
Income Tax Acts, (1907) V.L.R., 327 ; 28 
A.L.T., 196 ; 13 A.L.R., 154. 

Income Tax Act 1903 (No. 1819), sees. 5, 
9 — Taxation of company — Deductions — De- 
preciation .of machinery.] — See Income Tax 
Acts. Re Income Tax Acts, (1907) V.L.R., 
327; 28 A.L.T., 196 ; 13 A.L.R., 154. 

Income Tax Act 1903 (No. 1819), sees. 5, 
9 — Taxation of company — Interest on bor- 
rowed capital — Interest on bills given for pur- 
chase of stock in trade.] — See Income; Tax 
Acts, (1907) V.L.R., 327; 28 A.L.R., 196; 
13 A.L.R., 154. 

V. — Security for Cos,ts. 

Security for costs — Foreign company — 
Registered office and agent in Victoria — 
Companies Act 1896 (No. 1482), sec. 70— 
Rules of Supreme Court 1884, Order LXV., r. 

6.] — A foreign company suing as plaintiff in 
Victoria, will not be relieved from giving 
security for costs upon proof only that it 
has an agent in and is carrying on business 
in Victoria, and has complied with sec. 70 
of the Companies Act 1896. Norton or 
Eorton & Sons Ltd. v. Sewell, (1906) V.L.R., 
401; 27 A.L.T., 214; 12 A.L.R., 209. 
a' Beckett, A.C.J. (1906). 

VI. — Criminal Liability. 

Company — Liability for criminal offences 
—Mens rea — Liability to presentment on 
charge of conspiracy — Capacity to conspire.] — 
See Corporation. R. v. KeUow, (1912) 
V.L.R., 162; 33 A.L.T., 203; 18 A.L.R., 
170. Cussen, J. 

Questions asked by Comptroller-General of 
Customs — Duty to answer — Prosecution pend- 
ing—Person interrogated not . charged — Cor- 
poration — Australian Industries Preservation 
Act 1906-1909 (No. 9 of 1906— No. 26 of 1909), 
sec. 15B.] — See Australian Industries 
Preservation Act. Melbourne Steamship 
Co. v. Moorehead, (1912) 15 C.L.R., 333; 
18 A.L.R., 533. 



VII. — Trustee Companies. 

" Equity Trustees Executors and Agency 
Company Limited Act " (No. 978), sec. 9 — 
Appointment of company under, effect of.] — 
Quaere, whether under see. 9 of the Equity 
Trustees Executors and Agency Company 
Limited Act (No. 978) an executor adminis- 
trator or trustee can permanently appoint 
the company to act in his stead. In re 
Hoarey, (1906) V.L.R., 437'; 28 A.L.T., 93 ; 
12 A.L.R., 450. Cussen, J. 

Executors — Renunciation- — Appointment of 
a trustee company — Power of sole remaining 
executor — " The Union Trustees Executors 
and Administrators' Co. Act " (No. 839), 
sec. 3.] — See Will. In the Will of Gilbert, 
27 A.L.T., 241; 12 A.L.R., 528. 

Intestacy — Next of kin entitled to adminis- 
tration resident abroad — Authority to trustee 
company to obtain administration — Form of 
grant to company.] — See Executors and 
Administrators. In the Estate of Morris, 
(1909) V.L.R., 425 ; 31 A.L.T., 61 ;. 15 
A.L.R., 446. 

Administration and Probate Act 1907 (No. 
2120), sec. 7 — Authority to trustee company 
to apply for probate — Revocation — Form of 
authority — Form of application.] — See Execu- 
tors and Administrators. In the Will of 
Synot, (1912) V.L.R., 99; 33 A.L.T., 182; 
18 A.L.R., 82. 

National Trustees Executors and Agency 
Co. of Australasia Ltd. Act (No. 938), sec. 10 
— Appointment with consent of Court of 
company to perform administrator's duties — 
Title of administrator not perfected — Letters 
of administration not issued. ]—See Executors 
and Administrators. In re Moriarty, 
(1907) V.L.R., 315; 29 A.L.T., 65: 13 
A.L.R., 307. 

VIII. — Insurance Companies. 

Companies Act 1890 (No. 1074), sec. 335 
— Purpose of this section — Protection of 
funds of life assurance branch of company 
transacting other business besides life assur- 
ance.] — Sec. 335 of the Companies Act 1890 
was intended to protect the funds of the life 
assurance branch of a company, carrying on 



159 



COMPANY. 



160 



life assurance and also other business, from 
claims arising in connection with such other 
business, and the section applies only to a 
company which is carrying on life assurance 
business as well as other business. In re 
Lonjley ; Reid v. Silke, (1906) V.L.R., 641 ; 
28 A.L.T., 82 ; 12 A.L.R., 499. Cussen, J. 

Income Tax Act 1903 (No. 1819), sec. 11 
(1)— Companies Act 1890 (No. 1074), sec. 
334 — Income of life assurance company — 
Premiums in respect of " insurances or 
assurances " — Consideration for annuities.] — ■ 
See ante, TV. — Income Tax. A. Promts. 
In re Australian Mutual Provident Society, 
(1913) V.L.R., 42; 34 A.L.T., 118; 18 
A.L.R., 524. 

IX. — Winding-up. 

(a) Jurisdiction ; Resolutions. 

Companies Act 1890 (No. 1074), sec. 76— 
Companies Act 1896 (No. 1482), sees. 1, 2, 70 
— Company — Incorporated outside Victoria — 
Registered in Victoria as a foreign company — 
Winding-up — Jurisdiction.] — The Court has 
jurisdiction to make an order for the winding- 
up under Part I. of the Companies Act 1890 
of a company incorporated elsewhere than in 
Victoria and registered as a foreign company 
under sec. 70 of the Companies Act 1896. 
In re the Egerton and Gordon Consolidated 
Gold Mines Co. No Liability, (1908) V.L.R., 
22; 29A.L.T., 165; 14A.L.R., 7. a' Beckett, 
J. (1907). 

Companies Act 1890 (No. 1074), sec. 54 — 
Printed copy of resolution of shareholders 
forwarded to Registrar-General — Presumption 
against fraud — Validity of resolution, prima 
facie evidence of.] — See ante, III. Manage- 
ment and Administration. B. Meetings. 
McLean Brothers & Rigg Ltd. v. Grice, 4 
C.L.R., 835 ; 13 A.L.R., 77. 

Evidence — Proceedings of corporation — 
Resolution passed at meeting of shareholders 
— Presumption that quorum present at meet- 
ing.] — See ante. III. Management and 
Administration. B. Meetings. McLean 
Brothers & Rigg Ltd. v. Grice, 4 C.L.R., 835 ; 
13 A.L.R., 77. 



Omnia praesumuntur rite esse acta— Pre- 
sumption afforded by the records of transac- 
tions required by law to be kept — Proceedings 
at meeting of shareholders, validity of — 
Printed copy of resolution forwarded to 
Registrar-General— Notice of' winding-up reso- 
lution — Publication in Government Gazette — 
Companies Act 1890 (No. 1074), sees. 54, 118.] 
— See ante, III. Management and Adminis- 
tration. B. Meetings. McLean Brothers 
& Rigg Ltd. v. Grice, 4 C.L.R., 835; 13 
A.L.R., 77. 

(6) Liquidators. 

Liquidation — Voluntary liquidation — 
Liquidator — Appointment of liquidator jointly 
with liquidator appointed by company — 
Resolution of creditors authorizing application 
to Court — Non-appointment by creditors of 
any person to make application — Application 
to Court by company and company's liquidator 
— Jurisdiction — Companies Act 1910 (No. 
2293), sec. 189.] — Where at a meeting of 
creditors in a voluntary winding-up it has 
been determined under sec. 189 (2) of the 
Companies Act 1910 than an application shall 
be made to the Court for the appointment of 
a named person as liquidator jointly with the 
liquidator appointed by the company, the 
application may be made by a person other 
than a creditor appointed in accordance with 
that sub-section for the purpose of making 
the application. Therefore, where the credi- 
tors of a company in a voluntary winding up 
had duly determined that such an application 
should be made, but had not appointed any 
person to make the application, the Court, 
having regard to these and other circum- 
stances, made an order in conformity with 
the determination of the creditors, upon the 
application of the company and the liquidator 
appointed by the company. In re G. C. 
Meader Pty. Ltd. (in Liquidation), (1912) 
V.L.R., 471 ; 34 A.L.T., 86 ; 18 A.L.R., 461. 
Cussen, J. 

Practice — Summons by official liquidator 
for directions — Summons served on secretary 
of company at time of passing of winding- 
up resolution — Matter directed to be taken to 
be in same position as if service on secretary 
had been ordered.] — In re Australian Pro- 
ducers and Traders Ltd., 29 A.L.T., 185 (1908). 



161 



COMPANY. 



162 



(c) Examination of Witnesses. 

Companies Act 1896 (No. 1483), sec. 133 
(1) — Company — Winding up — Public examin- 
ation of promoters, directors, and others- 
Application for order — Materials — Fraud.] — 

The Court has no jurisdiction to direct any 
person to be publicly examined under sec. 
133 (1) of the Companies Act 1896 where 
facts suggestive of fraud are not shown. 
In re Rubber Inventions Co. Ltd., (1908) 
V.L.R., 414 ; 30 A.L.T., 41 ; 14 A.L.R., 350. 
Madden, C.J. 

Companies Act 1890 (No. 1074), sec. 109— 
Practice — Winding up — Examination of per- 
sons capable of giving information concerning 
the trade dealings of the company — Jurisdic- 
tion.! — The Court has no power to summons 
before it under see. 109 of the Companies Act 
1890 a person claiming to be a creditor of 
a debtor of a company which is being com- 
pulsorily wound up by the Court, where it 
is not shown that such person knows any- 
thing of the trade dealings estate or effects 
of the company. In re City of Melbourne 
Bank Ltd., (1910) V.L.R., 282 ; 32 A.L.T., 
20 ; 16 A.L.R., 283. Hodges, J. (1910). 

(d) Contributories. 
See also, ante, H. — Shares. 

Companies Act 1890 (No. 1074), sees. 24, 
39, 71 — Liquidation — List of contributories — 
Contract to take shares with agreement that 
something is to be done after membership 
completed — Contract that there shall be no 
membership unless condition performed — 
Waiver.] — A person who has entered into a 
contract in praesenti to take shares, with an 
agreement that something is to be done after 
membership has been completed, is liable to 
be settled on the list of contributories in a 
winding-up, even though such agreement 
has not been performed ; so also is a person 
whose application to take shares is subject 
to the condition that it is not to be perfected 
until something has been done, if by his sub- 
sequent conduct he shows an intention to 
waive any right he had to insist on the con- 
dition, and he makes a, new agreement to 
take and hold shares without any condition. 
In re The Australian Producers and Traders 



Ltd., (1906) V.L.R., 511; 28 A.L.T., 80; 
12 A.L.R., 445. Cussen, J. 

(e) Debts ; Expenses of Liquidation ; 
Priorities. 

Voluntary liquidation — Liquidation by the 
Court — Wages — Preferential claim — Period of 
four months, how calculated — Date of com- 
mencement of liquidation — Companies Act 
1896 (No. 1482), sec. 148.]— After a resolu- 
tion for the voluntary liquidation of a com- 
pany had been passed, an order for compul- 
sory winding-up was made by the Court. 
Among the creditors were servants of the 
company with claims for wages. Held, 
that for the purpose of ascertaining the period 
of four months in respect of which such claims 
would have priority under sec. 148 of the 
Companies Act 1896, the presentation of 
the petition to the Court was the com- 
mencement of the liquidation. Be Austra- 
lian Producers and Traders Ltd., (1908) 
V.L.R., 227; 29 A.L.T., 185 ; 14 A.L.R., 118. 
Hodges, J. (1908). 

Companies Act 1890 (No. 1074), sec. 104— 
Assets insufficient to satisfy liabilities — Costs 
charges and expenses of winding-up — Order 
as to priority of payment of.] — Upon an appli- 
cation in a compulsory winding-up of a com- 
pany for an order as to the priority and 
payment out of the estate of tne company of 
the costs charges and expenses incurred in 
the winding-up, the Court ordered payment 
in the order of priority provided by rule 31 
of the English rules of 1890. In re People's 
Daily Co-operative Newspaper &c. Co. Ltd., 
(1907) V.L.R., 666; 29 A.L.T., 111; 13 
A.L.R., 504. a' Beckett, J. (1907). 

Mines Act 1897 (No. 1514), sec. 168— 
Mines Act 1904 (No. 1961), sec. 64— Mining 
company — Winding-up — Assets insufficient to 
satisfy liabilities— Miners' wages — " Costs of 
administration or otherwise " — Priority of 
payment.] — See Mining. In re Egerton and 
Gordon Consolidated Gold Mines, No Lia- 
bility, (1908) V.L.R., 526; 30 A.L.T., 27; 
14 A.L.R., 372. 

Mines Act 1897 (No. 1514), sec. 168— 
Insolvency Act 1890 (No. 1102), sec. 115— 
Insolvency Act 1897 (No. 1513), sec. 79— 

6 



163 



COMPANY. 



164 



Companies Act 1890 (No. 1074), sees. 250, 
303 — -Mining company — Assignment for bene- 
fit of creditors— Workmen's wages — -Payment 

— Priority.] — See Mining. In re Old Jubilee 
Gold Mines, No Liability, 34 A.L.T. (Supple- 
ment), 2 ; 18 A.L.R. (C.N.), 21. 

Solicitor's lien — Solicitor ordered to deliver 
to liquidator documents of company, although 
company indebted to him for costs — Com- 
panies Act 1890 (No. 1074), sec. 274.]— In re 
Mount Murphy Wolfram Co., No Liability, 
29 A.L.T. (Supplement), 19; 14 A.L.R. 
(C.N.), 6. Judge Box. 

(/) Distribution of Surplus Assets. 

Companies Act 1890 (No. 1074), sees. 124, 
301— Mines Act 1890 (No. 1120), sec. 135— 
Winding-up mining company — Unclaimed divi- 
dends in liquidator's hands — Payment into 
Court — Costs.] — Order made for payment into 
Court of the amount of the unclaimed divi- 
dends in the hands of the liquidator of a 
mining company in the course of winding-up 
under Part II. of the Companies Act 1890 
after deducting therefrom the costs of the 
liquidator. In re The Lyell Tharsis Mining 
Co. No Liability, 29 A.L.T. (Supplement), 
5 ; 13 A.L.R. (C.N.), 27. Judge Eagleson 
(1907). 

Company — Liquidation — Voluntary Liquid- 
ation — Surplus after discharge of liabilities — 
Distribution— Rights of "A" and "B" 
contributories — Interest on unpaid calls — 
Companies Act 1910 (No. 2293), sec. 194.]— 
Twenty years after a company had gone into 
voluntary liquidation, the liquidators, having 
in the meanwhile discharged its liabilities 
out of moneys obtained from calls made by 
them upon the " A " and " B " contributories 
and from the realization of the company's 
assets, had in hand a, large surplus over and 
above what had been received from the " B " 
contributories : Held, that the " B " con- 
tributories were entitled to be repaid the 
whole of their contributions with six years' 
interest at four per cent. Held, further, that 
for the purpose of distributing amongst the 
" A '' contributories the surplus then remain- 
ing, the amount paid in respect of any share 
by a " B " contributory should be deducted 



from the total amount paid up on such share. 
Held, further, that where a contributory was 
the holder of shares in respect of which a 
dividend was payable out of such surplus 
and also of shares in respect of which calls 
remained unpaid, his right to receive such 
dividend was subject to the liquidator's 
right to deduct therefrom the amount of 
such unpaid calls. Held, further, that con- 
tributories should, in respect of any dividend 
payable to them, be debited with interest at 
the rate of six per cent, upon their unpaid 
calls (if any). In re Metropolitan Bank Ltd., 
(1912) V.L.R., 449; 34 A.L.T., 138; 18 
A.L.R., 463. a' Beckett, J. 

Company — Liquidation — Surplus after dis- 
charge of liabilities — Distribution — Shareholder 
with fully paid up and contributing shares — 
Sequestration of estate — Composition with 
creditors — Release, effect of.] — A company 
went into voluntary liquidation and, after 
payment of the liabilities of the company out 
of the moneys obtained from calls upon the 
" A " and " B " contributories and from the 
realization of the assets of the company, 
there remained » large surplus in the hands 
of the liquidators. At the time the company 
went into liquidation, one of the shareholders 
owned some fully paid up shares and other 
shares partly paid up ; subsequently, before 
the call was made, his estate was sequestrated 
— the liquidators proving in the insolvency 
for the amount of the call ; his creditors 
accepted a, composition, and he was released 
from his debts, and gave up by transfer 
(which was in the hands of the liquidators) 
the shares, in consideration of the release from 
liability which he then obtained : Held, that 
he was entitled to a dividend on the fully 
paid up shares without any deduction being 
made in respect of the amount unpaid on the 
other shares. In re Metropolitan Bank 
Limited (in Liquidation), (1912) V.L.R., 449; 
34A .L.T., 138 ; 18 A.L.R., 463. a'Berkett,J. 

Companies Act 1890 (No. 1074), Part II — 
Mining companies — Company in liquidation — 
Proposed plan of distribution of surplus- 
Distribution between holders of paid up and 
contributing shares — Power of shareholders to 
make and to amend rules — Amendment pro- 



165 



CONDITION— CONSTITUTIONAL LAW. 



166 



viding that all holders of shares whether 
paid up or contributing entitled to share in 
surplus in proportion to the number of shares 
held, declared to be valid, and not unfair to 
or in breach of the contract with certain of 
the holders of paid up shares who were original 
vendors to the company and had taken the 
purchase money partly in cash and partly in 
paid up shares.] — In re Quartz Hill Gold 
Mining Company, No Liability, 27 A.L.T., 
(Supplement), 13 ; 12 A.L.R. (C.N.), 11. 
Judge EatjUson (1906). 



COMPLAINT. 

See INFORMATION, JUSTICES OF THE 
PEACE. 



COMPROMISE. 

See CHARITY. 



CONDITION. 

See also, Contract oe Agreement. 

County Court — Action on insurance policy 
— Arbitration a condition precedent to right 
of action — Stay of proceedings — Adjournment 
— Jurisdiction — County Court Act 1890 (No. 
1078), sec. 71.] — See Arbitration, col. 51. 
Borrett v. Norwich, and London Accident In- 
surance Association, 29 A.L.T. (Supplement), 
1 ; 13 A.L.R. (C.N.), 22. Judge Chomley 
(1907). 

Condition restrictive of use or sale of goods 
— Running with goods.] — See Sale of Goods. 
National Phonograph Co. v. Menck, L.R. 
[1911] AC, 336 (P.C.) ; 17 A.L.R., 94. 



CONFINEMENT EXPENSES. 

See HUSBAND AND WIFE. 



CONSIDERATION. 

See CONTRACT OR AGREEMENT. 



CONSTABLE. 

See POLICE AND POLICE REGULATION 
ACT; POLICE OFFENCES ACTS. 



CONSPIRACY. 

Conspiracy — Corporation— Liability to pre- 
sentment on charge of conspiracy — Capacity 
to conspire.] — <See Criminal Law. JR. v. 
Kellow, (1912) V.L.R., 162 ; 33 A.L.T., 203 ; 
18 A.L.R., 170. Cusseh, J. 



CONSTITUTIONAL LAW. 

I. Generally . . . . . . . . 167 

(a) Crown Liability • • . . . . 167 

(6) Legislative Power . . . . 168 

(c) Discretion of Governor in Council 168 

(d) State Boundaries . . . . 169 

II. Commonwealth of Australia Con- 



stitution . . 


170 


(a) Interpretation Generally 


170 


(6) Powers of Parliament 


170 


(1) Validity of Legislation Gener- 




ally 


170 


(2) Taxation and Tax Bills 


170 


(3) Corporations 


171 


(4) Immigration and Emigration 


172 


(5) External Affairs . . 


172 


(fi) Conciliation and Arbitration 


172 


(7) Elections 


175 


(c) The Judicature 


175 


(1) Judicial Power Generally 


175 


(2) Original Jurisdiction 


176 


(3) Appellate Jurisdiction 


176 


(4) Appeal to King in Council . . 


178 


(d) The Executive Government ; Fi- 




nance and Trade 


179 


(e) The States 


180 


(1) Reserved Powers of State Par- 




liament 


180 


(2) Inconsistency of Laws 


180 


(3) Interference with Instruments 




of Government 


181 


(4) Legislation in Respect of Re- 




ligion . . 


182 


(5) The State Courts 


182 



167 



CONSTITUTIONAL LAW. 



168 



I. — Generally. 

(a) Crown Liability. 

Relief against forfeiture for non-payment of 
rent — Crown, relief against — Settlement of 
Lands Act 1893 (No. 1311), sees. 5, 10— Lease 
by Board of Land and Works — Supreme Court 
Act 1890 (No. 1142), sec. 202.]— See Land- 
lord and Tenant. The King v. Dale, [1906] 
V.L.R., 662; 28 ALT., 140 ; 12 A.L.R., 549. 

Chose in action consisting of right against 
the Crown — Assignment — Petition of right by 
assignee — Crown Remedies and Liability Act 
1890 (No. 1080), sec. 20] — See Crown Reme- 
dies and Liability Act. The King v. 
Brown, (1912) 14 C.L.R., 17 ; 18 A.L.R., 111. 

Deposit receipt, security by way of — Con- 
tract to supply goods to Crown — Security for 
due performance of contract — Deposit receipt 
in name of servant of the Crown procured by 
contractor and delivered to such servant — 
Contractor's account with bank overdrawn — 
Contract duly performed — Whether amount 
of deposit receipt a debt due by Crown to 
contractor — Money had and received — Set-off 
of bank's claim against contractor, whether 
justifiable.] — See Banker and Customer, 
cols. 70, 71, 72. The King v. Brown, (1912) 
14 C.L.R., 17; 18 A.L.R., 111. 

Commonwealth Public Service Act 1902 
(No. 5 of 1902), sec. 78 (1)— Salary not appro- 
priated by Parliament — Whether public ser- 
vant entitled to.] — See Public Service. 
Cousins v. The Commonwealth, 3 C.L.R., 
529 ; 12 A.L.R., 175. 

Commonwealth Public Service Act 1902 
(No. 5 of 1902), sec. 78— Public servant- 
Wrongful dismissal — Claim for damages — 
Money not voted by Parliament — Whether a 
defence.] — See Public Service. Williamson 
v. The Commonwealth, (1907) 5 C.L.R., 174 ; 
14 A.L.R., 1. 

Action against Commonwealth — Right to 
discovery from Commonwealth — Judiciary Act 
1903 (Commonwealth) No. 6), sees. 56, 64.] — 

See Discovery. Commonwealth v. Miller, 
10 C.L.R., 742; 16 A.L.R., 424. 



(6) Legislative Power. 

Subordinate legislature — Power in criminal 
matters, territorial limits of — " Quitting 
Natal," whether legislature may make it a 
criminal offence.] — Section 76 of Law No. 47 
of the Colony of Natal provides : — " If any 
person who is adjudged insolvent or has his 
affairs liquidated by arrangement after the 
presentation of an insolvency petition by 
or against him or the commencement of the 
liquidation or within four months before 
such presentation or commencement quits 
Natal and takes with him .... any 
part of his property to the amount of £20 
or upwards which ought by law to be divided 
amongst his creditors he shall (unless the 
jury is satisfied that he had no intent to 
defraud) be guilty of an offence punishable 
with imprisonment for a time not exceeding 
two years with or without hard labour." 
Held, that the law was not ultra vires of the 
legislature of Natal. McKelvey v. Meagher, 
4 C.L.R., 265; 12 A.L.R., 483. H.C., 
Griffith, C.J., Barton and O'Connor, J J. 
(1906). 

Appeal— Supreme Court Act 1890 (No. 1142), 
sec. 231 — Whether ultra vires the Parliament 
of Victoria.] — The Full Court refused to go 
into the question whether sec. 231 of the 
Supreme Court Act 1890 is ultra vires the 
Parliament of Victoria — the validity of that 
section having been assumed in a long series 
of eases. In re " Maizo " and " Maizena " 
Trade Marks ; Robert Harper & Co. v. 
National Starch Co., (1906) V.L.R., 246; 
27 A.L.T., 168 ; 12 A.L.R., 164. F.C., 
Holroyd, A.C.J., a' Beckett and Hodges, J J. 
(1906). 

(c) Discretion of Governor in Council. 

Discretion of Governor in Council — Prisoner 
under sentence — Remission of sentence- 
Mandamus.] — Mandamus will not lie to the 
Governor in Council of the State, and no 
Court has jurisdiction to review his discre- 
tion in the exercise of the prerogative of 
mercy. Horwitz v. Connor, (1908) 6 C.L.R., 
38; 14 A.L.R., 342. H.C., Griffith, C.J., 
Barton, O'Connor, Isaacs and Higgins, JJ- 



169 



CONSTITUTIONAL LAW. 



170 



(d) State Boundaries. 
Boundary of States— Letters patent creating 
province— Degree of longitude stated as 
boundary — Implied authority of executive 
to locate.] — By letters patent dated February 
19, 1836, and made in exercise of powers 
given by 4 & 5 Will. IV., c. 95, the King in 
Council erected and established the province 
of South Australia (now the appellant State) 
and declared that its boundary on the east 
on which side it adjoined New South Wales 
should be the 141st degree of east longitude. 
Under an agreement between the Govern- 
ments of New South Wales and South Aus- 
tralia the supposed position of that longitude 
was marked upon the ground for 123 miles 
north from the sea, and proclamations were 
issued in the two .Colonies publishing the line 
so marked as the boundary. This marked 
line was afterwards extended under agreement 
between the two Governments as far as the 
river Murray. The Secretary of State for 
the Colonies approved of what had been done. 
The line so marked was subsequently found 
to be about 2J miles to the west of the true 
position of the 141st degree. The Colony of 
Victoria (now the respondent State) was 
created in 1850 out of part of New South 
Wales and so that on the west it adjoined 
South Australia as far north as the river 
Murray. The appellant State brought an 
action in the High Court of Australia claim- 
ing possession of the land between the 
boundary agreed and marked as above stated 
and the 141st degree of east longitude, and 
for ancillary relief. Held, that upon the 
true construction of the letters patent, it 
was contemplated that the 141st degree of 
east latitude should be ascertained and repre- 
sented upon the surface of the earth, and 
that there was implied authority given to the 
executives of the two Colonies to do such 
acts as were necessary to that end ; that, 
upon the facts, the executives of the two 
Colonies had acted within that implied 
authority, and that the line agreed and marked 
became and was the boundary between the 
States ; and that the action was, accordingly, 
rightly dismissed. State of South Australia 
v. State of Victoria, (1914) A.C., 283. (Privy 
Council). 



II. — Commonwealth of Australia Con- 
stitution. 

(a) Interpretation Generally. 

Commonwealth of Australia Constitution 
Act 63 & 64 Vict. c. 12, The Constitution- 
Principles of interpretation.] — See Common- 
wealth of Australia Constitution, col. 114. 
Baxter v. Commissioners of Taxation; Flint 
v. Webb, 4 C.L.R., 1087,1178; 13 A.L.R., 313. 

(6) Powers of Parliament. 

(1) Validity of Legislation Generally. 

Powers of Commonwealth Parliament — 
Validity of legislation — Part of Act invalid — 
Whether whole Act invalid — Test for deter- 
mining whether invalid part severable.] — 

See Commonwealth of Australia Con- 
stitution, cols. 114, 115. The King and the 
Commonwealth Court of Conciliation and 
Arbitration and the President thereof and the 
Boot Trade Employes Federation ; Ex parte 
Whybrow <fc Co., (1910) 11 C.L.R., 1; 16 
A.L.R., 373. 

The Constitution (63 & 64 Vict. c. 12), sec. 
51 — Legislative powers of Commonwealth — 
Validity of Act, principles to be observed in 
determining question of — Form of Act — 
Substance of Act — Direct and indirect effect 
— Motive and object of legislation — Interfer- 
ence with domestic affairs oi State — Taxation 
—Excise Tariff 1906 (No. 16 of 1906).]— 
See Commonwealth of Australia Con- 
stitution, cols. 115, 116. The King v. 
Barger ; The Commonwealth v. Mc Kay, 
(1908) 6 C.L.R., 41 ; 14 A.L.R.. 374. 

(2) Taxation and Tax Bills. 

The Constitution (63 & 64 Vict. c. 12), 
sees. 51 (H.), 99 — Taxation, power of Com- 
monwealth with respect to — Discrimination 
between States or parts of States — Preference 
to one State over another State — Excise Tariff 
1906 (No. 16 of 1906), whether ultra vires.]— 
See Commonwealth of Australia Con- 
stitution, cols. 116, 117. The King v. 
Barger ; The Commonwealth v. Mc Kay, 
(1908) 6 C.L.R., 41 ; 14 A.L.R., 374. 

The Constitution (63 & 64 Vict. c. 12), 
sec. 51 (ii.) — Legislative powers of the Com- 



171 



CONSTITUTIONAL LAW, 



17? 



monwealth — Taxation — Regulative legislation, 
what is— Excise Tariff 1906 (No. 16 of 1906), 
whether a taxing or a regulative Act.] — See 

Commonwealth of Australia Constitu- 
tion, cols. 117, 118. The King v. Barger ; 
The Commonwealth v. McKay, (1908) 6 
C.L.R., 41 ; 14 A.L.R., 374. 

The Constitution (63 & 64 Vict. e. 12), 
sec. 55 — Laws imposing taxation — To deal 
only with imposition of taxation — Excise 
Tariff 1906 (No. 16 of 1909), whether it deals 
with matters other than excise duty.] — See 
Commonwealth on? Australia Constitu- 
tion col. 118. The King v. Barger ; The 
Commonwealth v. McKay, (1908) 6 C.L.R., 
41 ; 14 A.L.R., 374. 

Customs Tariff 1908 (No. 7 of 1908), sees. 
3, 4, 5, 7 — Duties collected under proposed 
tariff — Proposed tariff different from tariff 
enacted by Parliament — Bight to recover 
money back — " Duties of Customs collected 
pursuant to any Tariff or Tariff alteration " 
— Commonwealth Constitution, sec. 55 — Im- 
posing taxation.] — See Customs. Sargood 
Bron. v. The Commonwealth, (1910) 11 
C.L.R., 258 ; 16 A.L.R., 483. 

(3) Corporations. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12), sec. 51 (xx.)— Power to 
make laws with respect to " foreign corpora- 
tions and trading and financial corporations 
formed within the limits of the Commonwealth" 
— Limits of power.] — See Commonwealth of 
Australia Constitution, cols. 118, 119. 
Huddart Parker & Co. Proprietary Ltd. v. 
Moorehead ; Appleton v. Moorehead, (1909) 8 
C.L.R., 330 ; 15 A.L.R., 241. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12), sec. 51 (i.) (xx.)— Inter- 
ference with internal trade and commerce — 
Power to make laws with respect to " foreign 
corporations, and trading or financial cor- 
porations formed within the limits of the 
Commonwealth" — Limits of power — Control of 
corporations, their status, capacities and con- 
tracts.] — See Commonwealth of Australia 
Constitution, cols. 119, 120. Huddart 



Parker & Co. Proprietary Ltd. v. Moorehead ; 
Appleton v. Moorehead, (1909) 8 C.L.R., 331 ; 
15 A.L.R., 241. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12), sec. 51 (xx.)— Power to 
make laws with respect to " foreign corpora- 
tions, and trading and financial corporations 
formed within the limits of the Common- 
wealth '-' — Australian Industries Preservation 
Act 1906 (No. 9 of 1906), sees. 5 and 8, 
whether intra vires.] — See Commonwealth of 
Australia Constitution, col. 120. Huddart 
Parker <$c Co. Proprietary Ltd. v. Moorehead ; 
Appleton v. Moorehead, (1909) 8 C.L.R., 
330 ; 15 A.L.R., 241. 

(4) Immigration and Emigration. 

The Constitution (63 & 64 Vict. c. 12), sec. 
51 (xxvii.) — "Immigrant," meaning of — 
Member of Australian community returning 
from abroad.] — See Commonwealth of Aus- 
tralia Constitution, col. 120. Potter v. 
Minahan, (1908) 7 C.L.R., 277 ; 14 A.L.R., 
635. 

Immigration Restriction Act 1901 (No. 17 
of 1901) — Prohibited immigrant — Application 
of Act to Australian citizen — Commonwealth 
Constitution, sec. 51.] — See Commonwealth 
of Australia Constitution, col. 120, 121. 
Attorney- General of the Commonwealth v. 
Ah Sheung, (1907) 4 C.L.R., 949. 

(5) External Affairs. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 51 (xxix.) — External affairs — Surrender of 
fugitive offenders — Power of Commonwealth 
Parliament with regard to.] — See Common- 
wealth of Australia Constitution, col. 
121. McKelvey v. Meagher, 4 C.L.R., 265; 
12 A.L.R., 483. 

(6) Conciliation and Arbitration. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 51 (xxxv.) — Arbitration in regard to 
industrial disputes — Extent of power of Com- 
monwealth.] — See Commonwealth of Aus- 
tralia Constitution, col. 121. The King 
and Commonwealth Court of Conciliation, and 



173 



CONSTITUTIONAL LAW. 



174 



Arbitration and the President thereof, and the 
Boot Trade Employes Federation ; Ex parte 
Whybrow & Co., (1910) 11 C.L.R., 1 ; 16 
A.L.R., 373. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904), sees. 4, 55, 
58, 60, 65, 73 — Registration of association — 
Validity of legislation — Association of employes 
in one State — Incorporation of organization — 
The Constitution (63 & 64 Vict. c. 12), sec. 
51 (xxxv.) (xxxix.).] — See Commonwealth of 
Australia Constitution, cols. 121, 122. 
Jumbunna Coal Mine N. L. v. Victorian 
Coal Miners' Association, (1908) 6 C.L.R., 
309 : 14 A.L.R., 701. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12),— The Constitution 
sec. 51 (xxxv.) — Conciliation and arbitration 
for the prevention and settlement of industrial 
disputes — Commonwealth Conciliation and 
Arbitration Act 1904 (No. 13 of 1904)— 
Validity.] — See Commonwealth of Australia 
Constutition, col. 122. The King and the 
Commonwealth Court of Conciliation and 
Arbitration and the President thereof and the 
Boot Trade Employes Federation ; Ex parte 
Whybrow & Co., (1910) 11 C.L.R., 1 ; 16 
A.L.R., 373. 

" Conciliation and arbitration for the pre- 
vention and settlement of industrial disputes ' ' 
— Powers of the Commonwealth — Common 
rule— The Constitution (63 & 64 Vict. c. 12), 
sec. 51 (xxxv.), (xxxix.) — Commonwealth Con- 
ciliation and Arbitration Act (No. 13 of 1904), 
sees. 19, 38 (f), (g) ; Commonwealth Con- 
ciliation and Arbitration Act (No. 1 of 1910).l 
— See Commonwealth of Australia Con- 
stitution col. 122. Australian Boot Trade 
Employees Federation v. Whybrow, (1910) 11 
C.L.R., 311 ; 16 A.L.R., 513. 

Operation of the Constitution and laws of 
the Commonwealth — Commonwealth Con- 
ciliation and Arbitration Act 1904 (No. 13 of 
1904) — Jurisdiction of Court of Conciliation 
and Arbitration — Industrial dispute — " Ship 
whose first port of clearance and whose port 
of destination are in the Commonwealth " — 
Commonwealth of Australia Constitution Act 
(63 & 64 Vict. C 12), sec. V.I— See Common- 



wealth of Australia Constitution, col. 
123. Merchant Service Guild of Australasia 
v. Archibald Currie & Co., (1908) 5 C.L.R., 
737; 14 A.L.R., 438. 

The Constitution (63 & 64 Vict. c. 12), 
sec. 51 (xxxv.) — " Industrial dispute " — 
" Extending beyond the limits of any one 
State."] — See Commonwealth of Australia 
Constitution, col. 123. Jumbunna Coal 
Mine N.L.v. Victorian Coal Miners' Asso- 
ciation, (1908) 6 C.L.R., 309 ; 14 A.L.R., 
701. 

Commonwealth Constitution, sec. 51 (xxxv.) 
— Industrial dispute extending beyond the 
limits of any one State.] — See Commonwealth 
of Australia Constitution, cols. 123, 124. 
The King and the Commonwealth Conciliation 
and Arbitration Court and the President 
thereof and the Boot Trade Employees Federa- 
tion; Ex parte Whybrow & Co., (1910) 11 
C.L.R., 1 ; 16 A.L.R., 373. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904)— Industrial 
dispute, what is — Commonwealth Constitu- 
tion, sec. 51 (xxxv.).] — See Employer and 
Employee. The King and the Commonwealth 
Court of Conciliation and Arbitration and the 
President thereof, and the Boot Trade Em- 
ployees Federation ; Ex parte Whybrow, 
(1910) 11 C.L.R., 1 ; 16 A.L.R., 373. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904),— Whether ultra 
vires of Parliament.] — See Commonwealth of 
Australia Constitution, col. 124. The King 
and the Commonwealth Court of Conciliation 
and Arbitration and the President thereof and the 
Boot Trade Employees Federation ; Ex parte 
Whybrow & Co., (1910) 11 C.L.R., 1 ; 16 
A.L.R., 373. 

Commonwealth Conciliation and Arbitra- 
tion Act 1904 (No. 13 of 1904) — Claims in 
regard to matters in dispute — Joinder of 
claims in regard to matters not in dispute — - 
Jurisdiction of Court of Conciliation and 
Arbitration — The Commonwealth Constitu- 
tion, sec. 51 (xxxv.).] — See Employer and 
Employee; col. 124. The King and the Com- 
monwealth Court of Conciliation and Arbitra- 



175 



CONSTITUTIONAL LAW. 



176 



tion and the President thereof and the Boot 
Trade Employees Federation ; Ex parte 
Whybroio & Co., (1910) 11 C.L.R., 1 ; 16 
A.L.R., 373. 

Commonwealth Court of Conciliation and 
Arbitration — Award, validity of — Higher rate 
awarded than that demanded by claimants — 
Demand that wage of apprentice be based on 
experience — Wage awarded based on age and 
experience — Industrial dispute.] — See Em- 
ployer and Employee. The King and the 
Commonwealth Court of Conciliation and 
Arbitration and the President thereof and the 
Boot Trade Employees Federation ; Ex parte 
Whybrow & Co., (1910) 11 C.L.R., 1 ; 16 
A.L.R., 373. 

(7) Elections. 

Parliamentary election— Political article in 
newspaper during election — Signature of 
author — Validity of Commonwealth legislation 
—The Constitution (63 & 64 Vict. c. 12), 
sees. 10, 51 (xxxvi.) — Commonwealth Elec- 
toral Act 1902-1911 (No. 19 of 1902— No. 
17 of 1911), sec. 181 A. A.]— See Common- 
wealth of Australia. Constitution, col. 125. 
Smith v. Oldham, (1912) 15 C.L.R., 355: 18 
A.L.R., 448. 

(c) The Judicature. 

( 1 ) Judicial Power Generally. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12), sec. 71— " Judicial 
power."] — See Commonwealth op Aus- 
tralia Constitution, col. 125. Huddart 
Parker v. Moorehead ; Appleton v. Moore- 
head, (1909) 8 C.L.R., 330 ; 15 A.L.R., 241. 

Commonwealth legislation, validity of — 
Trade and Commerce — Anti-trust laws — 
Inquiry by Comptroller-General of Customs 
— Compulsory answers — Judicial power of 
Commonwealth — Trial by jury — Inter-State 
Commission — Australian Industries Preserva- 
tion Act 1906 (No. 9 of 1906) amended by 
Australian Industries Preservation Act 1907 
(No. 5 of 1908), sec. 15b — The Constitu- 
tion (63 & 64 Vict. c. 12), sees. 51 (i.) 
xx.) f 71, 80, 101.] — See Commonwealth op 
Australia Constitution, col. 126. Huddart 



Parker & Go. Proprietary Ltd. v. Moore- 
head ; Appleton v. Moorehead, (1909) 8 C.L.R., 
330 ; 15 A.L.R., 241. 

(2) Original Jurisdiction. 

The Constitution (63 & 64 Vict. c. 12), 
sec. 75 — Original jurisdiction of High Court 
— " Matters " between States, what are — 
Dispute as to boundary between two States — 
Boundary fixed by Act of Imperial Parlia- 
ment.] — See Commonwealth op Australia 
Constitution, cols. 126, 127. State of South 
Australia v. State of Victoria, (1911) 12 
C.L.R., 667 ; 17 A.L.R., 206. 

(3) Appellate Jurisdiction. 
Judiciary Act 1903 (No. 6 of 1903), sec. 39 
— Federal jurisdiction of State Courts — Valid- 
ity of grant of — Right of appeal to High Court 
— Prerogative right of appeal to Privy Council, 
whether affected — Commonwealth of Aus- 
tralia Constitution Act (63 & 64 Vict. c. 12)— 
The Constitution, sees. 71, 77 — Colonial Laws 
Validity Act (28 & 29 Vict. c. 63).]— See Com- 
monwealth op Australia Constitution 
col. 127. Baxter v. Commissioners of Taxa- 
tion ; Flint v. Webb, 4 C.L.R., 1087, 1178; 
13 A.L.R., 313. 

The Constitution (63 & 64 Vict. c. 12), sec. 
73 — Appellate jurisdiction of High Court — 
Court of Conciliation and Arbitration — Com- 
monwealth Conciliation and Arbitration Act 
1904 (No. 13 of 1904), sec. 31.]— -See Common- 
wealth op Australia Constitution, col. 
127. Jumbunna Coal Mine No Liability v. 
Victorian Coal- Miners' Association, (1908) 6 
C.L.R., 309 ; 14 A.L.R., 701. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sees. 71, 73, 75 (v.) — Commonwealth Concilia- 
tion and Arbitration Act 1904 (No. 13 of 
1904), sec. 31— Judiciary Act 1903 (No. 6 of 
1903), sees. 30, 33 (b), 38— Prohibition— Juris- 
diction of High Court to issue to Common- 
wealth Court of Conciliation and Arbitration — 
Whether prohibition original or appellate 
jurisdiction.] — See Commonwealth op Aus- 
tralia Constitution, col. 128. TheKingand 
the Commonwealth Court of Conciliation and 
Arbitration and the President thereof and the 



177 



CONSTITUTIONAL LAW. 



178 



Boot Trade Employees' Federation; Ex 
parte Whybrow <fc Co., (1910) 11 C.L.R., 1 ; 
16 A.L.R., 373. 

Federal jurisdiction— Exercise of, what is— 
Two questions decided, one Federal and the 
other not — Each decision sufficient to sustain 
judgment— Court of Petty Sessions— Appeal 
to High Court, whether it lies— Judiciary Act 
1903 (No. 6), sec. 39 (2) (d)— Commonwealth 
of Australia Constitution Act (63 & 64 Vict. 
c. 12),— The Constitution, see. 77.]— See Ap- 
peal, col. 20. Miller v. Haweis, (1907) 5 
C.L.R., 89; 13 A.L.R., 583. 

Court of Petty Sessions — Federal jurisdic- 
tion—Exercise of, what is — Commonwealth 
of Australia Constitution, sees. 31, 76 — Con- 
stitution Act Amendment Act 1890 (No. 
1075), sec. 282— Judiciary Act 1903 (No. 6), 
see. 39 (2) (d) — Question decided involving 
interpretation of sec. 31 of Constitution — 
Other question decided involving interpreta- 
tion of Commonwealth Electoral Act 1902 
(No. 19)— Appeal to High Court, whether it 
lies.] — See Commonwealth of Australia 
Constitution, col. 129. Miller v. Haweis, 
(1907) 5 C.L.R., 89 ; 13 A.L.R., 583. 

Appeal — Order on habeas corpus — Juris- 
diction of High Court.] — See Appeal, ool. 22. 
Attorney- General of the Commonwealth v. Ah 
(1907) 4 C.L.R., 949. 



High Court — Practice — Declaratory judg- 
ment — Abstract question of law in decision of 
which rights of parties are not involved — 
Whether High Court will decide— Rules of 
High Court 1903, Part I., Order m., r. 1— 
Trade Marks Act 1905 (No. 20), Part Vn., 
constitutionality of.] — -See High Court (Pro- 
cedure). Bruce v. Commonwealth Trade 
Marks Label Association, (1907) 4 C.L.R., 
1569 ; 13 A.L.R., 582. 

Practice — Appeal to High Court — Special 
leave — Decision of inferior Court of State — 
Right of appeal to Supreme Court — Judiciary 
Act 1903 (No. 6 of 1903), sec. 35— The Con- 
stitution (63 & 64 Vict. c. 12), sec. 73.]— See 
Appeal, col. 23. Kamarooka Gold Mining 
Co. v. Kerr, (1908) 6 C.L.R., 255. 



(4) Appeal to King in Council. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, sec. 
74 — Interpretation, principles of — History of 
Constitution, whether it may be looked at — 
Appeal to Privy Council.] — See Common- 
wealth of Australia Constitution, col. 
130. Baxter v. Commissioners of Taxation ; 
Flint v. Webb, 4 C.L.R., 1087, 1178; 13 
A.L.R., 313. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 74 — Questions as to the limits inter se of 
constitutional powers of Commonwealth and 
State — Conflicting decisions of Privy Council 
and High Court— Whether High Court final 
arbiter upon such questions — 9 Geo. IV. c. 83 ; 
7 & 8 Vict. c. 69, and Orders in Council there- 
under.] — See Commonwealth of Australia 
Constitution, cola. 130, 131. Baxter v. 
Commissioners of Taxation ; Flint v. Webb, 
4 C.L.R., 1087, 1178 ; 13 A.L.R., 313. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 74 — Appeal to King in Council — Certifi- 
cate of High Court — Reasons for granting, 
sufficiency of — Conflicting decisions of Privy 
Council and High Court.] — See Common- 
wealth of Australia Constitution, col. 
131. Baxter v. Commissioners of Taxation ; 
Flint v. Webb, 4 C.L.R., 1087, 1178; 13 
A.L.R., 313. 



Commonwealth of 
Act (63 & 64 Vict. c. 
sec. 74 — " Decision . 



Australia Constitution 

12)— The Constitution, 

. . upon any ques- 



tion," meaning of — Appeal to Privy Council.] 

— See Commonwealth of Australia Con- 
stitution, col. 131. Baxter v. Commissioners 
of Taxation ; Flint v. Webb, 4 C.L.R., 1087, 
1178; 13 A.L.R., 313. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sees. 74, 109 — Question as to limits inter se 
of powers of Commonwealth and State, nature 
of — How distinguished from question of 
inconsistency between law of State and law of 
Commonwealth.] — See Commonwealth of 
Australia Constitution, cols. 131, 132. 



179 



CONSTITUTIONAL LAW. 



180 



Baxter v. Commissioners of Taxation ; Flint 
v. Webb, 4 C.L.R., 1087, 1178 ; 13 A.L.R., 
313. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sees. 73, 74, 76, 77 — Question as to limits inter 
se of constitutional powers of Commonwealth 
and State what is — Question raised by defence 
whether State tax on Federal salary an inter- 
ference with powers of Commonwealth — 
Exercise of Federal jurisdiction by Court of 
Petty Sessions — Appeal to High Court, com- 
petency of — Judiciary Act 1903 (Common- 
wealth) (No. 6 of 1903), sec. 39.1— See Com- 
monwealth of Australia Constitution 
cols. 132, 133. Baxter v.- Commissioners of 
Taxation ; Flint v. Webb, 4 C.L.R., 1087, 
1178; 13 A.L.R., 313. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12)— Power of Victorian 
Legislature (18 & 19 Vict. c. 55) — Income tax 
— Right of appeal from Supreme Court to 
Privy Council — Whether Commonwealth 
Parliament may take away.] — See Appeal. 
col. 14. Webb v. Outrim, (1907) A.C., 81 ; 13 
A.L.R., (C.N.), 1. 

(d) The Executive Government ; Finance and 
Trade. 

Commonwealth of Australia Constitution 
(62 & 63 Vict. c. 12), sees. 51 (1) (xx.) (xxxix.), 
61, 101 — Inter-State Commission — Execution 
and maintenance of provisions of Constitution 
relating to trade and commerce and of all 
laws made thereunder.] — See Commonwealth 
of Australia Constitution, cols. 133, 134. 
Huddart Parker & Co. Proprietary Ltd. v. 
Moorehead ; Appleton v. Moorehead, (1909) 8 
C.L.R., 330 ; 15 A.L.R., 241. H.C., Griffith, 
C.J., Barton O'Connor, Isaacs and Higgins, 
JJ. 

Immigration Restriction Acts 1901-1905 — 
"Immigrants" and "prohibited immi- 
grants," who are — Whether administrative 
officers of the Commonwealth may determine 
such questions.] — For a discussion of the 
question whether the officers administering the 
Immigration Restriction Acts are the final 
arbiters as to who are, and who are not, 



" immigrants " or " prohibited immigrants," 
see Ah Sheung v. Lindberg, (1906) V.L.R., 
323 ; 27 A.L.T., 189 ; sub nom., Rex v. 
Ah Sheung, 12 A.L.R., 190. Cussen, J. 
(1906). 

Officer of Department transferred to Com- 
monwealth — Whether Commonwealth Parlia- 
ment may reduce salary — " Existing rights " 
— Public Service Act 1900 (No. 1721), sec. 
19— Commonwealth Constitution, sec. 84.] — 
See Commonwealth of Australia Con- 
stitution, col. 134. Cousins v. The Com- 
monwealth, 3 C.L.R., 529 ; 12 A.L.R., 175. 

Commonwealth Public Service Act 1902 
(No. 5 of 1902), sees. 8, 51, 60, 80— Officer 
of department transferred to Commonwealth — 
Whether salary altered — " Existing rights " — 
Commonwealth Constitution, sec. 84.] — See 
Commonwealth of Australia Constitu- 
tion, cols. 134, 135. Cousins v. The Com- 
monwealth, 3 C.L.R., 529 ; 12 A.L.R., 175. 

Public Service Act 1900 (No. 1721), sec. 19— 
Post and Telegraph Department — Transfer to 
Commonwealth — " Any Australian colony."] 

— See Public Service. Curley v. The King, 
(1906) V.L.R., 633 ; 28 A.L.T., 12 ; 12 
A.L.R., 555. 

Public Service Act 1900 (No. 1721), sec. 19 
— Post and Telegraph Department — Transfer 
to Commonwealth — " Officers of corres- 
ponding position " — Identity of duties.] — See 

Public Service. Curley v. The King, 
(1906) V.L.R., 633; 28 A.L.T., 12; 12 
A.L.R., 555. 

(e) The States. 

(1) Reserved Powers of State Parliament. 

Commonwealth of Australia Constitution 
(62 & 63 Vict. c. 12)— Federal nature of Con- 
stitution — Interference with domestic affairs of 
State — Implied prohibition.] — See Common- 
wealth of Australia Constitution, col. 
135. Huddart Parker & Co. Proprietary Ltd. 
v. Moorehead ; Appleton v. Moorehead, (1909) 
8 C.L.R., 330 ; 15 A.L.R., 241. 

(2) Inconsistency of Laws. 

Rendition of Fugitive offenders — Law of 
Victoria — Effect of establishment of the 



181 



CONSTITUTIONAL LAW. 



182 



Commonwealth — Commonwealth of Australia 
Constitution Act (63 & 64 Vict. c. 12)— The 
Constitution, sees. 108, 109 — Fugitive Of- 
fenders Act 1881 (44 & 45 Vict. c. 69).]— See 
Commonwealth op Australia Constitu- 
tion, cols 135, 136. McKelvey v. Meagher, 
4 C.L.R., 265 ; 12 A.L.R., 483. 

Fugitive Offenders Act 1881 (44 & 45 Vict, 
c. 69) — Commonwealth of Australia Constitu- 
tion Act (63 & 64 Vict. c. 12)— Authority of 
State of Victoria with regard to fugitive 
offenders — How far affected by establishment 
of Commonwealth.] — See Commonwealth 
or Australia Constitution, col. 136. 
McKelvey v. Meagher, 4 C.L.R., 265; 12 
A.L.R., 483. 

Conciliation and arbitration — Common- 
wealth Court — Jurisdiction — Award incon- 
sistent with determination of Wages Board — 
The Constitution, sec. 51 (xxxv.)] — See Com- 
monwealth of Australia Constitution, 
col. 136. Australian Boot Trade Employees 
Federation v. Whybrow & Co., [1910] 10 
C.L.R., 266 ; 16 A.L.R., 185. 

Factories and Shops Act 1909 (No. 2241), 
sec. 39 — No person compellable to pay more 
than the minimum wage unless he contract so 
to do — Jurisdiction of Commonwealth Court 
of Conciliation and Arbitration — How far 
affected by State legislation.] — See Common- 
wealth of Australia Constitution, cols. 
137, 138. Australian Boot Trade Employees 
Federation v. Whybrow & Co., [1910] 10 
C.L.R., 266 ; 16* A.L.R., 185. 

(3) Interference with Instruments of Govern- 
ment. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution- 
Doctrine of implied prohibition of interference 
with Commonwealth instrumentalities — 
Whether implied in Constitution.] — See Com- 
monwealth of Australia Constitution 
col. 137. Baxter v. Commissioners of Taxa- 
tion ; Flint v. Webb, 4 C.L.R., 1087, 1178 ; 
13 A.L.R., 313. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12)— Income of Federal 
officer — Whether liable to income tax imposed 



by State — Power of State Legislature— 
Whether restricted by Commonwealth Con- 
stitution.] — See Commonwealth of Aus- 
tralia Constitution, cols. 137, 138. Webb 
v. Outtrim, (1907) A.C., 81 ; 13 A.L.R. (C.N.), 
1. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— Interference by 
State with legislative or executive authority of 
Commonwealth — Implied prohibition — In- 
come Tax Acts, validity of.] — See Common- 
wealth of Australia Constitution, col. 

138. Baxter v. Commissioners of Taxation ; 
Flint v. Webb, 4 C.L.R., 1087, 1178 ; 13 
A.L.R., 313 (1907). 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12)— Power of Parliament- 
Federal nature of Constitution — Interference 
with domestic affairs of State — Implied pro- 
hibition.] — See Commonwealth of Aus- 
tralia Constitution, col. 138. Huddart 
Parker & Co. Proprietary Ltd. v. Moorehead ; 
Appleton v. Moorehead, (1909) 8 C.L.R., 330; 
15 A.L.R., 241. 

Instrumentality of State Government, what 
is — Municipal corporation engaging in trading 
enterprise.] — See Commonwealth of Aus- 
tralia Constitution, col. 139. Federated 
Engine- Drivers and Firemen's Association of 
Australasia v. Broken Hill Proprietary Co. 
Ltd., (1911) 12 C.L.R., 398 ; 17 A.L.R., 285. 

(4) Legislation in respect of Religion. 

Defence — Compulsory military training — 
Religious objection to bear arms — Validity of 
Act — Exemption — Excuse — Defence Act 1903- 
1910 (No. 12 of 1904— No. 37 of 1910), ss. 
61, 125, 135, 138, 143— The Constitution (63 
& 64 Vict. e. 12), sec. 116.] — -See Common- 
wealth of Australia Constitution, col. 

139. Kryggerv. Williams, (1912) 15 C.L.R., 
366 ; 18 A.L.R., 518. 

(5) The State Courts. 

Judgment of High Court on appeal from 
Supreme Court — Duty of Supreme Court to 
execute— Judiciary Act 1903 (No. 6 of 1903), 
sec. 37, whether ultra vires— The Constitu- 
tion, sec. 51 (xxxix.) — Commonwealth of Aus- 
tralia Constitution Act (63 & 64 Vict. c. 12), 



183 



CONTEMPT. 



184 



sec. 5.] — See Appeal, col. 30. Bayne v. 
Blake, (1908) 5 C.L.R., 497 ; 14 A.L.R., 103. 

Judgment of High Court on appeal from 
Supreme Court — Judgment remitted to Su- 
preme Court for execution — Officer of Supreme 
Court — Whether subject to control of High 
Court.] — See Appeal, col. 31. Bayne v. 
Blake, (1908) 5 C.L.R., 497 ; 14 A.L.R., 103. 

Judgment of High Court on appeal from 
Supreme Court — Judgment remitted to Su- 
preme Court — Stay of proceedings, jurisdiction 
of Supreme Court to order.] — See Appeal, 
cols. 31, 32. Bayne v. Blake, ( 1908) 5 C.L.R., 
497 ; 14 A.L.R., 103. 

Patent, application for — Opposition — State 
Patents Act — Transfer of administration to 
Commonwealth pending proceedings — Appeal 
to State Supreme Court — Jurisdiction — Pa- 
tents Act 1890 (No. 1123), sec. 33— Patents 
Act (No. 21 of 1903).]— See Appeal, cols. 33, 
34. In re McLeod's Patent ; Burton v. 
McLeod, (1906) V.L.R., 483 ; 12 A.L.R., 335. 

Supreme Court — Jurisdiction — Habeas cor- 
pus — Applicant held under restraint under 
authority of Commonwealth — Immigration 
Restriction Act 1905 (No. 17), sec. 14 (13b)— 
Judiciary Act 1903 (No. 6), Part VI.]— -See 
Habeas Corpus. Ah Sheung v. IAndberg, 
(1906) V.L.R., 323; 27 A.L.T., 189; sub 
nom., Bex v. Ah Sheung, 12 A.L.R., 190. 



CONTEMPT. 

I. Criminal Contempt . . . . 183 

II. Contempt in Procedure . . . . 188 

I. — Criminal Contempt. 

Contempt of Court — Jurisdiction of Supreme 
Court — Criminal charge — Publication of mat- 
ters tending to prevent fair trial — Publication 
before committal for trial — Extent to which 
publication in a newspaper is lawful.] — When 
a person has been arrested and charged on 
information with an offence in respect of which 
Justices may commit him for trial in the 
Supreme Court, the publication after his arrest 
and before he has been so committed, of 
matter tending to prejudice his fair trial in the 



Supreme Court is a contempt of the Supreme 
Court which that Court has jurisdiction to 
punish. A publication, which on a considera- 
tion of the whole matter published, tends to 
prejudice and bias the public mind, either 
on one side or the other, and so to endanger 
the fair trial of an accused person, is unlawful 
and contempt of Court. The publication 
in respect of a, pending criminal charge of 
extrinsic ascertained facts to which any 
eye-witness could bear testimony, such as in 
the case of a charge of murder, the finding 
of a body and its condition, the place where it 
was found, the persons by whom it was found 
the arrest of the person accused, is lawful. 
But the publication of alleged facts depending 
upon the testimony of some particular person, 
which may not be true and may or may not 
be admissible in a Court of justice, and the 
publication of comments on alleged facts 
are unlawful, if such publication is likely to 
interfere with the fair trial of the person 
charged. Re Syme ; Ex parte Worthington, 
28 V.L.R., 552 ; 24 A.L.T., 123 ; 8 A.L.R., 
239, overruled. R. v. Parke, (1903) 2 K.B., 
432, and R. v. Davies, (1906) 1 K.B., 32, 
discussed. Packer v. Peacock ; Burrell v. 
Peacock ; Smart v. Peacock, (1912) 13 
C.L.R., 577 ; 18 A.L.R., 70. H.C., Griffith, 
C.J. and Barton, J. 

Contempt of Court — Criminal trial — Dis- 
agreement of jury — Remand of prisoner — 
Petition against second trial — Presentation to 
Attorney-General — Publication in newspapers.] 

On the trial of a prisoner charged with murder 
at the Supreme Court at Ballarat, the jury 
disagreed, and the prisoner was remanded 
for trial at the next sittings of the Court. 
While the prisoner was on remand his 
solicitor's managing clerk prepared a petition 
to the Attorney-General assisted in obtaining 
signatures to it of some of the jurymen, sent 
it to the Attorney-General, and supplied a 
copy of it to a Ballarat newspaper in which 
extracts from the petition were published, 
The petition which was signed by ten of the 
twelve jurymen, set out certain facts and 
matters which in their opinion justified an 
acquittal, and expressed their opinion that it 
was undesirable and unfair to put prisoner 
on his trial » second time on the same 



185 



CONTEMPT. 



186 



evidence. Held, a, contempt as tending to 
defeat the due course of justice. In re Mann ; 
In re King, (1911) V.L.R., 171 ; 32 A.L.T., 
156 ; 16 A.L.R., 598. Cussen, J. 

Contempt of Court — Pending criminal trial 
— Petition to Attorney General in relation to — 
Whether a contempt.] — Semble. — Communica- 
tions to the Attorney-General in relation to a 
pending criminal trial constitute contempt of 
Court if they contain deliberate mis-state- 
ments or threats, or otherwise display an 
intention to defeat the due course of justice. 
In re Mann; In re King, (1911) V.L.R., 
171 ; 32 A.L.T., 156 ; 16 A.L.R., 598. 
Cussen, J. 

Contempt of Court — Attempt to influence 
juryman — Juryman not yet empanelled for 
trial of accused person in whose favour 
attempt is made.] — Where a juryman has 
been sworn to act at the sessions of the Court 
at which an accused person is to be tried, it is 
a contempt of Court to attempt to influence 
him in the verdict he would be called upon to 
give if he should be empanelled upon the 
trial of such accused person. Ex parte 
Dunn; Ex parte Aspinall, (1906) V.L.R., 
493 ; 28 A.L.T., 3 ; 12 A.L.R., 358. Cus- 
sen, J. (1906). 

Contempt of Court — Nature of offence.] — 

The essence of contempt is action or inaction 
amounting to an interference with or obstruc- 
tion to or having a, tendency to interfere 
with or obstruct the due administration of 
justice. Ex parte Dunn ; Ex parte Aspinall, 
(1906) V.L.R., 493 ; 28 A.L.T., 3 ; 12 
A.L.R., 358. Cussen, J. (1906). 

Contempt of Court — Extent of powers of 
Court of General Sessions — Justices Act 1890 
(No. 1105), sec. 184.]— The Court of General 
Sessions has no power to punish for contempt 
of Court except in the cases specified, and to 
the extent limited in the Justices Act 1890. 
Ex parte Dunn; Ex parte Aspinall, (1906) 
V.L.R., 493 ; 28 A.L.T., 3 ; 12 A.L.R., 358. 
Cussen, J. 

Inferior Court of Record — Power to commit 
for contempt.] — Semble. — Apart from statu- 
tory authority an inferior Court of Record can 
punish only for contempt committed in the 



face of the Court. Ex parte Dunn ; Ex parte 
Aspinall, (1906) V.L.R., 493 ; 28 A.L.T., 3 ; 
( 12 A.L.R., 358. Cussen, J. 

General Sessions — Attempt to influence 
juryman — Contempt of Court — Power of Su- 
preme Court to punish.] — Semble. — An at- 
tempt to influence a. juror in the Court of 
General Sessions is a contempt punishable 
by the Supreme Court brevi manu. Ex parte 
Dunn; Ex parte Aspinall, (1906) V.L.R. 
493; 28A.L.T., 3; 12 A.L.R., 358. Cussen, 
J. 

Criminal contempt — Attempt to interfere 
with the course of justice — Nature of offence.] 

— Semble. — All attempts to interfere with the 
course of justice are criminal contempts and 
are misdemeanours. Ex parte Dunn ; Ex 
parte Aspinall, (1906) V.L.R., 493 ; 28 
A.L.T., 3 : 12 A.L.R., 358. Cussen, J. 

Certiorari — Court of General Sessions — 
Person committed for contempt by warrant of 
Chairman — No jurisdiction — Whether act 
judicial or administrative — Party aggrieved — 
Whether entitled ex debito justitiae.] — See 
Certiorari, col. 95. Ex parte Dunn ; Ex 
parte Aspinall, (1906) V.L.R., 584; 28 
A.L.T., 72 ; 12 A.L.R., 418. 

Supreme Court Act 1890 (No. 1142), sec. 
25 — Criminal causes and matters — Proceed- 
ings by way of certiorari in case of criminal 
contempt.] — See Certiorari, cols. 95, 96. Ex 
parte Dunn; Ex parte Aspinall, (1906) 
V.L.R., 584 ; 28 A.L.T., 72 ; 12 A.L.R., 418. 

Contempt of Court — Nature of offence — 
Publications of statements concerning a Judge 
of the High Court.] — Statements made con- 
cerning a Judge of the High Court do not 
amount to contempt unless calculated to 
obstruct or interfere with the course of 
justice in the High Court or the due adminis- 
tration of the law by that Court. Bex v. 
Nicholls, (1911) 12 C.L.R., 287; 17 A.L.R., 
309. H.C., Griffith, C.J., Barton and O'Con- 
nor, JJ. 

Contempt of Court — Ecclesiastical privilege 
— Presbyterian Church of Victoria — Refusal of 
Presbytery Clerk to produce documents in 
civil action.] — Where the clerk of a Presby- 



187 



CONTEMPT. 



188 



tery or Court of the Presbyterian Church of 
Victoria being served with a subpoena duces 
tecum to produce at the hearing of a civil 
action certain documents relevant to the issue 
which were in his possession as clerk to the 
Presbytery, refused to produce them on the 
ground that he had taken an oath to the 
Presbytery not to hand over any document 
in his possession as clerk without the Pres- 
bytery's authority, the Court ordered him 
to be imprisoned until he should purge his 
contempt, and adjourned the hearing of the 
case. Semble, that if, on the application 
for release of the clerk, the parties had 
asked the Court for the expenses occasioned 
by the clerk's conduct, he would not have 
purged his offence until he had paid such 
expenses. Ronald v. Harper, 15 A.L.R. 
(C.N.), 5. Hodges, J. (1909). 

Insolvency Act 1890 (No. 1102), sec. 149— 
Insolvency Act 1897 (No. 1513), sec. 91— 
Insolvency Rules 1898 (Appendix of Forms, 
No. 64) — Contempt of Court — Certificate — 
Compulsory appearance — Refusal of insolvent 
to be sworn — Power of committal — Form of 
notice of motion to insolvent.] — Semble. — By 
virtue of sec. 91 of the Insolvency Act 1897, 
the Insolvency Court has power to compel an 
insolvent who has been required to appear 
before it under sec. 149 of the Insolvency Act 
1890 to be sworn and give evidence, although 
such evidence might tend to render him liable 
to imprisonment. In re Aarons, 6 V.L.R. 
LP. & M., 56 ; 2 A.L.T., 51, distinguished. 
The notice required under sec. 149 of the 
Insolvency Act 1890 requiring the insolvent to 
attend before the Court to have the question 
of the grant or refusal of his certificate dealt 
with, should direct attention to the fact 
that the insolvent may be punished or other- 
wise dealt with as if the certificate had been 
applied for by him. In re Hickman, 31 
A.L.T. (Supplement) 10 ; 15 A.L.R. (C.N.), 
21. Judge Moule (1909). 

Justices Act 1890 (No. 1105), sec. 198— 
Contempt of Court — Wilful misbehaviour in a 
Court of Petty Sessions — Insulting language 
to a witness after case decided.] — See Jus- 
tices oe the Peace. Westcott v. Lord, (1911) 
V.L.R., 452 ; 33 A.L.T., 54 ; 17 A.L.R., 433. 



Justices Act 1890 (No. 1105), sec. 198— 
Contempt of Court — Misbehaviour not wit- 
nessed by Court itself — Formal adjournment of 
Court before occurrence of misbehaviour, 
effect of.] — See Justices of the Peace. 
Westcott v. Lord, (1911) V.L.R., 452; 33 
A.L.T., 54 ; 17 A.L.R., 433. 

II. — Contempt in Procedure. 

Order XLIV., r. 2 (Rules of 1884)— Order 
XLH., rr. 3, 6, 7. 17 (Rules of 1884)— Attach- 
ment — Disobedience of order to pay costs — 
Imprisonment of Fraudulent Debtors Act 1890 
(No. 1100) — Whether power to attach for dis- 
obedience affected by.] — Notwithstanding the 
provisions of the Imprisonment of Fraudulent 
Debtors Act 1890, the Court has power to 
issue a writ of attachment for disobedience 
of its order to pay costs. Re Sanditands ; 
Ex parte Browne, 4 V.L.R. (L.), 318, followed. 
Pope v. Peacock, (1906) V.L.R., 667; 28 
A.L.T., 63 ; 12 A.L.R., 440. Hodges, J. 

Insolvency Act 1890 (No. 1102), sees. 76, 
113 — Execution of process or judgment, stay 
of — Debt due by insolvent to creditor — Trust 
moneys which are or ought to be in hands of 
trustee — Trustee ordered to pay moneys into 
Court — Disobedience of order — Attachment.] 
— Sees. 76 and 113 of the Insolvency Act 1890 
are both directed to process for the enforce- 
ment of the payment of money as a debt due 
by the insolvent to a creditor. The insolvency 
of »■ person, who in the position of a trustee, 
has not accounted for money he once had and 
still ought to have, and who has been ordered 
to pay the money into Court, does not oper- 
ate as a stay upon process of attachment 
against him for non-compliance with the 
order for payment into Court. Peterson v. 
M'Lennan, (1907) V.L.R., 94; 28 A.L.T., 
135 ; 12 A.L.R., 577. Cussen, J. 

Order XLII., rr. 3, 17 (Rules of 1884)— 
Order XLIV., r. 2— Order for payment of 
money — Execution under fi. fa. — Attachment 
for disobedience — Election of remedy, whether 
creditor bound by.] — A writ of attachment for 
disobedience of an order of the Court for pay- 
ment of a sum of money may issue, although 
a writ of fi. fa. to enforce such payment has 
been issued previously. In re Ball, L.R. 8 



189 



CONTRACT OR AGREEMENT 



190 



C.P., 104, explained. Pope v. Peacock, 
(1906) V.L.R., 667 ; 28 A.L.T., 63 ; 12 
A.L.R., 440. Hodges, J. 

Order ML, r. 11— Order LXVII.* r. 9— 
Writ of attachment — Sheriff, refusal of to 
execute — Execution, how enforced — Whether 
mandamus may issue.] — Whether the Sheriff 
refuses to execute a writ of attachment he 
should be called upon to return the writ or 
bring in the body within a given time, and on 
his non-compliance application should be 
made under Order LII., r. 11, for his com- 
mittal. A writ of mandamus will not issue, 
there being an alternative remedy. Peterson 
v. M'Lennan, (1907) V.L.R., 94 ; 28 A.L.T., 
135 ; 12 A.L.R., 577. Cussen, J. 

Attachment of person — Sheriff, duty of — 
Writ of attachment regular on its face.] — 

Quaere, whether under a writ of attachment 
the Sheriff is not bound, in every case in 
which the writ of attachment is regular on 
its face, to attach the person named in the 
writ, leaving it to the Court to say whether 
he ought to be discharged. Peterson v. 
M'Lennan, (1907) V.L.R., 94 ; 28 A.L.T., 
135 ; 12 A.L.R., 577. Cussen, J. 

"The County Court Rules 1891," rr. 333, 
334, 335, 343— Judgment that defendant 
deliver certain chattel to plaintiff — Warrant 
of delivery under r. 343 returned unsatisfied — 
Warrant of attachment, issue of — Jurisdic- 
tion.] — See County Court. Macrow & 
Sons Co. Proprietary Ltd. v. Davidson, 27 
A.L.T. (Supplement), 11 ; 12 A.L.R. (C.N.), 9. 

Attachment — Contempt of Court — Man- 
damns — Statutory public duty — Minister of 
the Crown.] — Semble, there is no privilege 
in a Minister of the Crown entitling him to 
immunity from attachment for contempt of 
Court for his disobedience of a mandamus 
calling upon him to perform a statutory 
public duty. The King v. Watt ; Ex parte 
Slade, (1912) V.L.R., 225 ; 33 A.L.T., 222 ; 
18 A.L.R., 158. F.C., Madden, C.J., Hodges 
and Cussen, J J. 

Mandamus — Minister of Crown — Disobe- 
ienced of public Statute — Criminal contempt — 
Attachment — Privilege.] — Disobedience to a 



public Statute for disobedience to which no 
other penalty is provided by the Legislature, 
is an indictable misdemeanour ; therefore, 
contempt in refusing to obey a writ of man- 
damus ordering compliance with the Statute, 
is of a criminal or quasi-criminal nature, and, 
semble, there is no privilege in a Minister of the 
Crown or in anyone else from attachment 
for such contempt. The King v. Watt ; 
Ex parte Slade, (1912) V.L.R., 225; 33 
A.L.T., 222 ; 18 A.L.R., 159. F.C., Madden, 
C.J., Hodges and Cussen, J J. 



CONTRACT OR AGREEMENT. 

I. Offer and Acceptance . . . . 191 

II. Consideration . . . . . . 193 

III. Contracts Required to be in 
Writing . . . . . . . . 194 

(a) Statute of Frauds . . . . 194 

(1) Memorandum, Sufficiency of 194 

(2) Parol Evidence . . . . 196 
(6) Under Mines Act . . . . 197 

IV. Capacity 197 



V. Legality or Object 



197 



VI. Misrepresentation ; Non-dis- 
closure . . . . . . . . 200 

VII. Operation of Contract . . 202 

(a) Eights and Obligations of Third 



Parties 




. 202 


(b) Assignment 


. 203 


VIII. Discharge of Contract 


. 205 


(a) Waiver 


. 205 


(b) Agreement ; Breach 


. 207 


(c) Alteration of Instrument 


In 


Writing . . 


. 212 


(d) Lapse of Time 


. 212 


IX. Interpretation ; Incidents of 


Contracts Relating to Various 


Subjects . . 




. 213 


(a) Principal and Agent 




. 213 


(b) Vendor and Purchaser . 




. 220 


(c) Bills of Lading 




. 223 


(d) Arbitration 




. 227 


(e) Patent Rights 




. 231 


(/) Insurance . . 




. 232 


(g) Building Contract 




. 234 


(h) Contract of Employment 




. 235 



191 



CONTRACT OR AGREEMENT. 



192 



(t) Trustees and Executors . . 235 

(j) Deeds of Separation . . . . 236 

(k) Banker and Customer . . . . 236 

{1} Other Contracts . ■ . . . . 237 

X. Damages . . . . . . • • 238 

XI. Money Had and Received ; 

Money Paid . . . . . • 239 

XII. Legal Proceedings ; Jurisdic- 
tion 240 

I. — Oj?jter and Acceptance. 

Contract, formation of — Offer — Acceptance 
— Offer to one person and acceptance by such 
person and others.! — Where an offer made by 
A. to B. is accepted by B. and C, or is ac- 
cepted by B. as agent for B. and C, the 
acceptance is not an acceptance of the 
original offer, but is a new offer by B. and 
C. to make » contract on the terms of the 
original offer, and none of the parties are 
bound by the new offer until it is accepted. 
Lang v. Morrison & Co. Ltd., (1911) 13 
C.L.R., 1 ; 17 A.L.R., 530. H.C. Griffith, 
C.J., Barton and O'Connor, J J. 

Contract — Formation — Offer and Accept- 
ance^ — Offer to sell goods — Goods sold to 
third party before acceptance of offer — Offer 
by post — Acceptance by post.] — A. made and 
sent by post a written offer to sell certain 
goods to B. A. also offered to sell the same 
goods to C. Both B. and C. wrote and posted 
acceptances of A.'s offer, C.'s acceptance 
being posted first. The two acceptances 
were received by A. by the same post. A. 
carried out his contract with C. In an action 
by B. against A. for breach of contract. 
Held, that there was a contract between 
A. and B. notwithstanding the prior contract 
between A. and 0. Dickinson v. Dodds, 2 
Ch. D., 463, distinguished. Patterson v. 
Dolman, (1908) V.L.R., 354; 29 A.L.T., 
256; 14 A-L-R., 240. F.C. o' Beckett, Hodges 
and Cussen, J J. 

Sale of land — Contract — Offer — Acceptance 
— Formal contract to be signed.] — Plaintiff 
wrote to defendant — " As I am anxious to 
dispose of my property in Faraday Street, 
Carlton, I should be glad if you would favour 
me with an offer by return post." Four 
days afterwards the defendant wrote in 



reply — " In answer to yours I can offer you 
£1,450 for your property in Faraday Street, 
Carlton." On the same day the plaintiff 
wrote in reply—" I accept your offer of this 
day's date to purchase my properties, No. 
156-162 Faraday Street, Carlton, for the 
sum of £1,450 cash, formal contract to be 
signed." Held, that the defendant's letter 
amounted to an offer, and that the plaintiff's 
second letter was in acceptance of that offer, 
the words " formal contract to be signed " not 
being a term of the assent, and therefore that 
there was a binding contract enforceable by 
the plaintiff. Bruen v. Smith, 30 A.L.T., 
149; 14 A.L.R., 700. a' Beckett, J. (1908). 

Contract — Breach in performance of — 
Steps taken by party not in default to minimise 
loss — Whether new contract to be inferred 
from — Waiver.] — Steps taken by a party 
not in default for the purpose of minimising 
loss should not of themselves be taken as 
evidencing any intention to enter into any 
new agreement or to waive any of his rights. 
Alexander Cross & Sons Ltd. v. Hasell, 
(1908) V.L.R., 194; 29 A.L.T., 179; 14 
A.L.R., 44. Cussen, J. 

Contract with company — Implied from 
Articles of Association and conduct of the 
parties.] — The Articles of Association of a 
company may express the terms upon which 
a person may contract with the company, and, 
if acted upon, an agreement between such 
person and the company on which either 
party may sue may be implied, partly from 
the articles and partly from the conduct of the 
parties. Glass v. Pioneer Rubber Works of 
Australia Ltd. (1906) V.L.R., 754 ; 28 A.L.T., 
64; 12A.L.R.,529. F.C, a' Beckett, A.-C.J., 
Hodges and Chomley, J J. 

Contract — Work and labour— Wages — 
Promise to pay express or implied — Evidence, 
sufficiency of.] — The complainant at the age 
of nine years was, out of charity, taken by 
the defendant to live with her on her farm 
and was fed, clothed and sent to school. 
He lived with the defendant on her farm for 
about ten years, and was set to do such work 
as he was able to do. On one occasion 
during this period he ran away from the 



193 



CONTRACT OR AGREEMENT. 



194 



defendant's home and was forcibly brought 
back. On another occasion when the com- 
plainant was a grown lad he asked to be paid 
wages, and was told by the defendant that 
she would give him a foal and would remember 
him in her will, but that he would get no 
wages. In » complaint for wages, Held, 
that there was no evidence of any agreement 
express or implied to pay wages to the 
complainant. Jewry v. Busk, 5 Taunt., 302, 
distinguished. Griffith v. O'Donoghite, (1906) 
V.L.R., 548; 28 A.L.T., 31 ; 12 A.L.R., 357. 
Hood, 7.(1906). 

II. — Consideration. 

Local Government Act 1903 (No. 1893), ss. 
455,456 — Contract — Consideration — Tender — 
Deposit — Forfeiture — Withdrawal of tender 
before acceptance — Mode of making contract — 
Burden of proof.] — In response to an adver- 
tisement by a municipal council for tenders 
for certain work the plaintiff made a tender 
in which he stated : — " I herewith make a 
preliminary deposit of £50 . . such 

sum to be absolutely forfeited to the council 
as liquidated damages and not by way of 
penalty in the event of withdrawing cancel- 
ling or rescinding this tender or failing to enter 
into a properly executed contract for the 
performance of the work within 48 hours 
after being called upon so to do." The 
plaintiff deposited £50 with the tender 
accordingly. Before acceptance of the tender 
the plaintiff withdrew it. In an action by 
the plaintiff against the municipality to re- 
cover the £50. Held, that there was a 
binding contract under which the council 
could retain the £50 in the event of the 
plaintiff withdrawing his tender before 
acceptance ; that the promise of the council 
to consider the tender was a sufficient con- 
sideration to support the contract, notwith- 
standing section 456 of the Local Government 
Act 1903 ; and that the burden of proving 
that the contract was not made in the manner 
prescribed by section 455 of that Act was 
upon the plaintiff. Stafford v. City of South 
Melbourne, 30 A.L.T., 43 ; (1908) V.L.R., 
584; 14 A.L.R., 464. F.C., a' Beckett, Hood 
and Cusaen, J J. 



Ill- — Contracts Required to be in Whit- 
ing. 

(a) Statute of Frauds. 

( 1 ) Memorandum, Sufficiency of. 

Instruments Act 1890 (No. 1103), ss. 208, 
209— Statute of Frauds (29 Car. II. c. 3)— 
Contract for sale of land — Signature to note 
or memorandum — Signature by amanuensis in 
presence and by direction of party to be 
charged, whether sufficient.] — To satisfy 
the requirements of sections 208 and 209 
of the Instrument* Act 1890, there must be a 
personal signature by the hand of the party 
to be charged, or a signature by an agent 
authorised in writing by the party to be 
charged, and the signature by an amanuensis, 
in the presence by the direction and with the 
name of the party to be charged, cannot be 
regarded as a signature by that party with 
his own hand, and is therefore insufficient. 
Thomson v. Mc Innes, (1911) 12 C.L.R., 
562 ; 17 A.L.R., 354. H.C., Griffith, O.J., 
Barton and O'Connor, J J. 

Sale of goods — Memorandum of agreement, 
whether necessary — Contract itself in writing 
—Sale of Goods Act 1896 (No. 1422), sec 9.]— 
A signed and sent to B a letter offering to 
sell him goods of the value of £10 and up- 
wards on conditions therein specified. B, 
by a subsequent letter, accepted A's offer. 
Held, that the provisions of sec. 9 (1) of the 
Sale of Goods Act 1896 requiring a note or 
memorandum of the contract did not pre- 
clude B from enforcing the agreement to sell. 
Patterson v. Dolman, (1908) V.L.R., 354; 
29 A.L.T., 256; 14 A.L.R., 240. F.C., 
a' Beckett, Hodges and Cussen, J J. 

Instruments Act 1890 (No. 1103), sec. 208 
— Memorandum of contract contained in 
several documents — Agreement to act as 
manager of company — Agreement implied 
from articles of Association and conduct of 
parties.] — Article 55 of the P company's 
Articles of Association was to the following 
effect : — " B.G. shall be the first managing 
director of the P company and shall hold 
such office for the term of ten years from 
August 1st, 1900. B.G. shall be entitled as 
such managing director to receive out of the 

7 



195 



CONTRACT OR AGREEMENT. 



196 



fuads of the company during his tenure of 
office the sum of £500 per annum payable 
by weekly instalments. The remuneration 
of B.G. after the expiration of the said term 
of ten years from August 1st 1900 or any other 
managing director appointed in his stead 
shall be fixed by the directors." For a 
period of over four years B.G. acted as man- 
aging director of the P company, without 
any objection by any director or officer or 
member of the company, and during all that 
period from August 1st, 1900, was paid for 
his services at the rate mentioned in the 
Articles of Association. B.G. signed a 
consent to act and in the directors' report 
was returned as managing director. On 
February 15th, 1905, B.G. wrote a letter to 
the secretary of the P company in the follow- 
ing terms : — " Take notice that J. claim by 
virtue of clause 55 of the Articles of Associa- 
tion of the above company and every other 
right enabling me so to do to be retained in 
my position as managing director of the P 
company for the period of ten years from 
August 1st, 1 900, at the remuneration of £500 
as therein provided and that any sale of the 
company's business assets and goodwill 
to the D company must be subject to my 
claim or its equivalent in money." On the 
next day the secretary wrote in reply as 
follows : — " In reply to your letter of the 
15th which was submitted to my board of 
directors at their meeting held to-day 1 am 
instructed to inform you that the contem- 
plated sale of this company's assets to the D 
company will carry with it the obligation to 
carry out the contract with you so far as 
regards the salary of £500 per annum for the 
balance of the term of ten years from August 
1st, 1900." The minutes of the P company 
showed that the secretary was instructed by 
the board of directors to write the above 
letter, and that a copy of that letter was 
submitted to the board on March 2nd and 
again approved. In an action by B.G. against 
the P company for breach of contract to 
employ him, Held, that there was sufficient 
evidence that a contract was in fact made 
between the P company and B.G. to employ 
him for the time and on the terms stated in 
Article 55 of the Articles of Association, and 



that a, memorandum of such contract suffi- 
cient to comply with the Statute of Frauds 
(Instruments Act 1890, sec. 208) was contained 
in the various documents referred to. Glass 
v. Pioneer Rubber Works of Australia Ltd. 
(1906) V.L.R., 754; 28A.L.T., 64; 12 A.L.R., 
529. F.C., a' Beckett, A.-C.J., Hod,jes and 
Chomley, J J. 

(2) Parol Evidence. 

Instruments Act 1890 (No. 1103), sec. 208— 
Sale of Land — Note or memorandum — Several 
documents — Parol evidence, when admissible 
to connect — Reference to document — Refer- 
ence to transaction in which document may 
or may not have been written.] — Where the 
memorandum of a contract is sought to be 
constituted from several documents, the refer- 
ence in the document signed "by the party to 
be charged must be to some other document 
the identity of which may be proved by parol 
evidenco, and not merely to some transaction 
in the course of which another document may 
or may not have been written. Held, there- 
fore, that the words " purchase money " 
in a receipt given by the vendor of land for a 
sum of money " being a deposit and first 
part purchase money " could not refer to 
another document and that parol evidence 
was not admissible. Thomson v. Mr. Inne-s, 
(1911) 12 C.L.R., 562; 17 A.L r R-, 35-1. 
H.C., Griffith, C.J., Barton and O'Connor, 
JJ. 

Written contract — Parol evidence to identify 
subject matter, admissibility of — Latent am- 
biguity — Language apt to express a specific 
article of a class or any article of that class- 
Statute of Frauds.] — Where a written contract 
for the sale of a particular chattel is couched 
in general terms equally apt to express the 
sale of any article of a certain class or the 
sale of a specific article of that class, parol 
evidence is admissible to show that a specific 
article was contracted for and to ascertain 
and identify that specific article. Bank of 
New Zealand v. Simpson, (1900) A.C., 182, 
followed. Smith v. Jeffryes, 15 M. & W., 
561, and Wilkie v. Hunt, 1 W.W. & a'B. 
(L.), 66, distinguished. Bruton v. Farm and 
Dairy Machinery Co. Proprietary Ltd., 
(1910) V.L.R., 196; 31 A.L.T., 200; 16 



197 



CONTRACT OR AGREEMENT. 



198 



A.L.R., 241. F.C., Madden, C.J., a' Beckett 
and Hood, J J. 

Instruments Act 1890 (No. 1103), sec. 208— 
Parol lease for less than three years — Lessee 
in possession of premises under existing 
tenancy.] — An agreement to lease for less than 
three years premises of which the lessee is 
already in possession under an existing ten- 
ancy, may be proved by parol, and is not 
affected by the Statute of Frauds. The 
eixsting tenancy is surrendered by operation 
of law and the possession of the lessee is 
referable to the new tenancy. Knott v. 
McKendrick,' 28 A.L.T. (Supplement), 4; 
12 A.L.R. (C.N.), 23. Judge Box (1906). 

(b) Under Mines Act. 

Mines Act 1897 (No. 1514), sec. 75— Mining 
on private property — Compensation — Agree- 
ment with owner — Necessity for writing — 
Waiver.] — Semble. — Sec. 75 (2) of the Mines 
Act 1897 which provides that no agreement 
betweeii the applicant for a mining lease 
on private property and the owner thereof as 
to compensation shall have any force or 
validity unless it is in writing signed by the 
parties thereto is for the benefit of the owner 
and may be waived by him. Armstrong v. 
The Duke of Wellington O.M. Co. No Lia- 
bility, (1906) V.L.R., 145; 27 A.L.T., 146; 
12 A.L.R., 67. Madden, C.J. 

IV. — Capacity. 

Infant — Intended marriage — Goods sup- 
plied — Necessaries.] — An infant about to 
marry may make himself liable for things 
reasonably required for the marriage, or for 
the joint establishment .after marriage. 
Quiygan Brothers v. Baker, (1906) V.L.R., 
259; 27 A.L.T., 174; 12 A.L.R., 168. 
a' Beckett, J. (1906). 

V. — Legality op Object. 

Conveyancing Act 1904 (No. 1953), sees. 
1, 3, 4 (6), (9)— Vendor and purchaser- 
Perusal fees, legality of contract for payment 
of by purchaser — Land under Transfer of 
Land Act — Transfer.] — Sub-sec. 6 of sec. 4 
of the Conveyancing Act 1904, is effective, not- 
withstanding sub-sec. 9, and it applies to all 
land sold by auction whether under the 



Transfer of Land Act or under the general 
law. Re Stewart and Park's Contract, (1907) 
V.L.R., 31; 28 A.L.T.,133; 12 A.L.R., 553. 
Hood J. (1906). 

Conveyancing Act 1904 (No. 1953), sec. 4 
(6), (9) — Interpretation — Repugnant clauses — 
Insertion of words to give effect to clear inten- 
tion of Statute.] — Sub-sec. 9 of sec. 4 of the 
Conveyancing Act 1904 should be read as 
though it contained some words excluding 
sub-sec. 6 from its operation. Re Stewart 
and Park's Contract, (1907) V.L.R., 31 ; 28 
A.L.T., 133 ; 12 A.L.R., 553. Hood, J. 
(1906). 

Conveyancing Act 1904 (No. 1953), sec. 4 
(6) — Whether applicable to land under Trans- 
fer of Land Act — "Conveyance," "trans- 
fer " — Contract of sale by auction — Stipula- 
tion that purchaser shall pay vendor's costs 
of perusal of conveyance.] — Sec. 4 (6) of the 
Conveyancing Act 1904 applies to sales by 
auction of land under the Transfer of Land 
Act 1890. Re Stewart and Park's Contract, 
(1907) V.L.R., 31; 28 A.L.T., 133; 12 
A.L.R., 553, followed. Re Rogers aud Rodd's 
Contract, (1907) V.L.R., 511 ; 29 A.L.T., 13 ; 
A.L.R., 312. Madden, C.J. (1907). 

Conveyancing Act 1904 (No. 1953), sec. 4 
(6)— Auction Sales Act 1890 (No. 1065), sees. 
3, 29— Sale of land by Sheriff under fi. fa.— 
Whether a " sale by auction " — Sheriff's 
costs of perusal of conveyance — Stipulation in 
contract of sale for payment by purchaser, 
legality of.] — A sale of land by auction con- 
ducted by the Sheriff under a writ of fi. fa. is, 
notwithstanding the provisions of the Auction 
Sales Act ] 890, excusing the Sheriff from the 
responsibilities imposed by that Act, a sale 
by auction within the meaning of sec. 4 (6) 
of the Conveyancing Act 1904, and a clause 
in the contract of sale charging the purchaser 
with the payment of the Sheriff's costs of 
perusal of the conveyance is accordingly 
illegal. Re Rogers' and Rodd's Contract, 
(1907) V.L.R., 511; 29 A.L.T., 13; 13 
A.L.R., 312. Madden, C.J. (1907). 

Conveyancing Act 1904 (No. 1953), sees. 
4 (6), (9), 10 — Auction — Sale of land — Con- 



199 



CONTRACT OR AGREEMENT. 



200 



tract of sale — Costs of perusal and of obtaining 
execution of conveyance — Stipulation for pay- 
ment by purchaser — Waiver by signing con- 
tract — Procedure for declaration of illegality of 
stipulation — Existence of contract.] — A clause 
in a contract of sale by auction of land stating 
that sec. 4 (6) of the Conveyancing Act 1904 
did not apply to the contract and stipulating 
for the payment by the purchaser to the ven- 
dor or his solicitor of the costs of perusal of the 
conveyance or of obtaining the execution 
thereof is illegal, and the purchaser does not 
waive the benefit of the provision in that 
section of the Act by signing a contract con- 
taining such a clause. Where a purchaser 
has signed a contract containing such a, 
clause he may apply on summons under sec. 
10 of the Conveyancing Act 1904 for a declara- 
tion that the clause is illegal and void, as the 
illegal stipulation may be disregarded and 
the contract still subsists. In re Stewart 
and Parle's Contract, (1907) V.L.R., 31 ; 28 
A.L.T., 133 ; 12 A.L.R., 553, and In re Rogers 
and Rodd's Contract, (1907) V.L.R., 511 ; 29 
A.L.T., 30 ; 13 A.L.R., 312, followed. In re 
Crook's Contract, (1909) V.L.R., 12; 30 
A.L.T., 108; 14 A.L.R., G98. a' Beckett, J. 
(1908). 

Conveyancing Act 1904 (No. 1953), sec. 
4 (6) — Contract for sale of land — Sale by 
auction — Costs — Exclusive of perusal and 
obtaining execution of transfer — Purchaser to 
pay — Validity — Condition.] — A provision in a 
contract made at the sale of land by auction 
" that the purchaser shall pay the vendor's 
costs and expenses of and incidental to the 
transfer exclusive of perusal and of obtaining 
the execution of the transfer " is not void 
under sec. 4 (6) of the Conveyancing Act 
1904. The expression '" costs of perusal of 
the conveyance or of obtaining the execution 
thereof " in sec. 4 (6) of the Conveyancing 
Act 1904 does not include the costs of all 
matters connected with the transfer of the 
land sold. Perusal means reading the con- 
veyance to see if it expresses what it is 
intended to express. In re Sutton and the 
Federal Building Society's Contract, (1909) 
V.L.R., 473 ; 31 A.L.T., 75 ; 15 A.L.R., 
560. Cussen, J. 



Vendor and purchaser — Contract of sale — 
Provision for apportionment of federal land 
tax — Validity — Interpretation — Land Tax As- 
sessment Act 1910 (No. 22 of 1910),' sees. 37, 
63.] — See, post 220, 221. Patterson v. Farrell, 
(1912) 14 C.L.R., 348; 18 A.L.R., 237. 

Illegal contract — Transfer of land to defeat 
creditors — No proof that creditors defeated — 
Resulting trust.] — See Trusts and Trustees. 
Payne v. McDonald, (1908) 6 C.L.R., 208; 
14 A.L.R., 366. 

VI. — Misrepresentation ; Non-disclosure. 

Representation made during negotiation for 
contract — Whether deemed to be a continuing 
representation until altered — Life insurance.] 

— A representation once made in the course 
of negotiations for a contract, prima facie 
continues in force until it is withdrawn or 
altered, and such a representation is construed 
to mean that the facts represented are then 
true, and, when made by a proponent for 
life assurance, that no other facts are then 
known to him. Dalgety & Co. Ltd. v. Aus- 
tralian Mutual Provident Society, (1908) 
V.L.R., 481 ; 30 A.L.T., 4 ; 14 A.L.R., 299. 
Cussen, J. (1908). 

Contract — When contracting party bound 
to disclose all material facts known to him — 
Innocent failure to disclose material fact, 
effect of — Life insurance.] — When the cir- 
cumstances show that confidence is reposed 
in one party to a contract by the other, the 
former is bound to disclose all material facts 
which he knows, unless the latter knows 
those facts or is presumed to know them, 
or takes on himself knowledge or waives 
information about them, and, if this disclosure 
is not made, whether from design, accident, 
inadvertance, or mistake the contract is 
voidable at the option of the party misled. 
This rule applies as well to contracts of life 
assurance as to those of marine insurance. 
Hambrough v. Mutual Life disc, of New York, 
72 L.T., 141, disapproved. Dalgety & Co. 
Ltd. v. Australian Mutual Provident Society, 
(1908) V.L.R., 481 ; 30 A.L.T., 4 ; 14 A.L.R., 
299. Cussen, J. (1908). 

Contract — Life Assurance — Statements by 
party proposing to insure to be basis of con- 



201 



CONTRACT OR AGREEMENT. 



202 



tract — Whether a warranty.] — The statement 
in a proposal for life assurance that " the 
proponent agrees that answers or statements 
shall be the basis of the contract " does not 
amoant to a warranty. Dalgety & Co. 
Ltd. v. Australian Mutual Provident /Society, 
(1908) V.L.R., 481; 30 A.L.T., 4 ; 14 A.L.R., 
299. Cussen, J. (1908). 

Contract — Insurance — Innocent non-disclo- 
sure of material fact discovered before com- 
pletion of contract.] — H., having made a 
proposal for assurance on his life with a 
company, received from the company a 
notice stating that the proposal was accepted 
and a, policy would issue on payment of the 
premium, and that the company reserved 
the right of cancelling the notice '* should 
anything to the prejudice of the life transpire 
in the meantime." On the next day from 
certain circumstances that then happened 
H. knew and believed that a growth on his 
neck was possibly malignant, and that his 
medical advisers suspected it of being so. H. 
without fraud, made no disclosure of this 
matter to the company, and three days 
afterwards the premium was paid. Held, 
that the contract wa? revocable at the 
option of the company. Daltjety & Co. 
Ltd. v. Australian Mutual Provident Society, 
(1908) V.L.R., 481 ; 30 A.L.T.,4 ; 14 A.L.R., 
299. Cussen, J. (1908). 

Composition with creditors — Debtor's Duty 
to disclose assets — Non-disclosure of valueless 
assets of a deceased person — Assets subse- 
quently becoming valuable — Rights of creditors 
and next of kin.] — In inducimg his creditors 
to accept a composition and to release him 
from all liability in respect of the debts 
due by him to them, a debtor should dis- 
close everything which would affect the 
judgment of a rational creditor governing 
himself by the principles and calculations 
on which creditors do in practice act. Certain 
shares in building societies that were part 
of the estate of » deceased person, which 
was insolvent, were not disclosed to the 
creditors of such estate on their agreeing by 
deed to accept a composition (which they did 
accept) and on payment thereof to discharge 
his estate . (which they did discharge) from 



all liability in respect of his debts. Such 
shares were valueless at that time, but some 
considerable time subsequently became valua 
able : Held, that the creditors were not 
entitled to the proceeds of the sale of such 
shares, as against the next of kin of the 
deceased, because the creditors' judgment 
would not, under the circumstances of the 
case, have been affected by the disclosure 
of the shares. . In re Warren ; National 
Trustees Executors and Agency Co. of Aus- 
tralasia Ltd. v. Daniel White & Co. Ltd., 
(1909) V.L.R.,6; 30 A.L.T., 129 ; 14 A.L.R., 
683. Cussen, J. 

VII. — Operation ov Contract. 

(a) Rights and Obligations of Third Parties. 

Partnership — Contract with individual who 
afterwards takes another into partnership — 
Liability of firm in respect of contract.] — 
Where A. has » contract with B. and B. 
takes C. into partnership, A. may elect to 
abide by his contract with B. alone, or may 
accept the liability of the partnership. The 
mere fact that he prefers, in connection with 
his contract, to see and consult the partner 
who had previously acted for him does not 
prove an election not to deal with the firm. 
Reid v. Silberberg, (1906) V.L.R., 126. 
a , Beckett, J. 

Partnership — Contract with individual who 
afterwards takes another into partnership — 
Election to hold firm liable on contract- 
Solicitors— Liability for fraud of co-partner.]— 

See Partners and Partnership. Reid v. 
Silberberg, (1906) V.L.R., 126. 

Contract of life assurance— Parties— Policy 
for benefit of assured only— Refusal of execu- 
tors of will of assured to sue on policy— Action 
by beneficiaries under will of insured— Cause 
of action.] — See Insurance. Miller v. 
National Mutual Life Assurance Association 
of Australasia Ltd., (1909) V.L.R., 193 ; 30 
A.L.T., 193,; 15 A.L.R., 141. 

Partnership— Formation of— Contract made 
before partnership in existence.]— In an action 
by the plaintiffs to recover damages for 
breach of contract from the three defendants, 
who, it was alleged, were partners, and as 



203 



CONTRACT OR AGREEMENT. 



204 



such had entered into a joint adventure with 
the plaintiffs. Held, on the evidence, that 
the existence of the partnership was not 
established, and that, even if the partner- 
ship existed, it had not been formed at the 
time when the contract was alleged to have 
been made. Lang v. Morrison & Co. Ltd., 
(1911) 13 C.L.R., 1; 17 A.L.R., 530. H.C. 
Griffith, C.J., Barton and O'Connor, J J. 



(b) 



'nment. 



See also, Bills of Exchange and Promissory 
Notes. 

Chose in action consisting of right against 
the Crown — Assignment — Petition of right by 
assignee — Crown Remedies and Liability Act 
1890 (No. 1080), sec. 20.] — See Assignment, 
cols. 56, 57. The King v. Brown, (1912) 14 
C.L.R., 17; 18 A.L.R., 111. 

Contract — Interpretation — Agreement to de- 
posit time-payment agreements as security — 
Depositor allowed to collect debts due — Deposit 
of additional time payment agreements equal 
in value to those discharged by payment — 
Equitable assignment — Book Debts Act 1896 
(No. 1424), sees. 2, 3 — Non-registration.] — 
J., who had in the ordinary course of his 
business sold furniture under time payment 
agreements in consideration of advances 
made to him by M. agreed in writing to 
deposit with M. as security for such advances 
certain time payment agreement forms signed 
and complete which were to remain the pro- 
perty of M. until the full amount of the ad- 
vances with interest had been repaid to 
him ; and it was further provided that, if 
any of the time payment agreements should 
be fully paid up by the " hirer," J. should 
replace them with others of equal value. In 
pursuance of the contract J. delivered to M. 
the time payment agreement forms. The 
contract was not registered under the Book 
Debts Act 1896. The estate of J. was seques- 
trated. Held, that the transaction gave to 
M. not a, mere security over and right to 
retain the documents deposited, but amounted 
to an equitable assignment to him of the 
debts due to J. under the time payment 
agreements, and that the assignment was 



void for want of registration under the Book 
Debts Act 1896. In re Jones, (1906) V.L.R., 
432 ; 27 A.L.T., 230 ; 12 A.L.R., 279. F.C. 
a' Beckett, A.-C.J., Hodges and Chomley, J J. 
(1906). 

Book debt — Assignment — Future debt- 
Money to become payable by agent to prin- 
cipal on sale of goods — Book Debts Act 1896 
(No. 1424), sees. 2, 3.] — See Assignment, 
cols. 57, 58. Shackell v. Howe Thornton & 
Palmer, (1909) 8 C.L.R., 170 ; 15 A.L.R., 176. 

Book debt — Money to become payable by 
agent to principal on sale of goods — " On 
account of or in connection with . . . 
business "—Book Debts Act 1896 (No. 1424), 
sees. 2, 3.] — -Money which will become pay- 
able by an agent to his principal, a trader, as 
purchase money on the sale of goods of the 
principal consigned to the agent for sale, 
constitutes a debt to become due by the 
agent to the principal, but not a debt on 
account of or in connection with the business 
of the principal within the meaning of the 
Book Debts Act 1896, and is therefore not 
a " book debt " within the meaning of that 
Act. Shackell v. Howe, Thornton & Palmer, 
(1909) 8 C.L.R., 170 ; 15 A.L.R., 176. H.C, 
Griffith, C.J., O' Connor and Isaacs, JJ. 

Equitable assignment of future fund — 
Registration — Book Debts Act 1896 (No. 
1424), sec. 2— Instruments Act 1890 (No. 
1103), Part VI.] — See Assignment, col. 58. 
Muntz v. Smail, (1909) 8 C.L.R., 262; 15 
A.L.R., 162. 

Assignment — Deposit of Savings Bank pass- 
book and order for payment of money in bank 
— Debt due in connection with business 
carried on by assignor — Book Debts Act 1896 
(No. 1424), sec. 2 (a).] — See Assignment, 
cols. 58, 59. Cox v. Smail, (1912) V.L.R., 
274 ; 18 A.L.R., 299. 

Book Debts Act 1896 (No. 1424), sec. 2 (a)— 
" Business," meaning of — Engagement in 
particular kind of transaction with intention 
to continue therein — Isolated transactions.]— 
See Book Debts. Schroder v. Hebbard, 
(1907) V.L.R., 107 ; 29 A.L.T., 1 ; 13 A.L.R., 
141. 



205 



CONTRACT OR AGREEMENT. 



206 



Book Debts Act 1896 (No. 1434), sec. 2 (a)— 
" Business," meaning of— Three contracts for 
the supply of firewood entered into at different 

times.] — See Book Debts. Schroder v. Heb- 
bard, (1907) V.L.R., 107; 29 A.L.T., 1; 
13 A.L.R., 141. 

Supreme Court Act 1890 (No. 1142), sec. 
63 (6)— Order III., r. 6 (Rules of 1906)— 
Order XIV.—" Debt or liquidated demand " 
— Assignment of debt — No written notice of 
assignment.] — See Assignment, col. 59. 
Caddy v. Beattie, (1908) V.L.R., 17; 29 
A.L.T., 165 ; 13 A.L.R., 643. 

Assignment of debt — No written notice of 
assignment — Proceedings by assignee — Par- 

ties.J.See Assignment, col. 59. Caddy v. 
Beattie, (1908) V.L.R., 17 ; 29 A.L.T., 165 ; 
13 A.L.R., 643. 

VIII. — Discharge oif Contract. 

(a) Waiver. 

Director with contractual rights against 
company — Concurrence in acts rendering 
company unable to perform contract — Whether 
a waiver of rights of director.] — The mere 
concurrence of a person in his capacity of 
director of a company in acts, which render 
such company unable to perform a contract 
then existing between him and the company 
does not amount to a waiver by him of his 
personal rights in respect of a breach of 
contract by the company resulting from such 
acts. Glass v. Pioneer Rubber Works of 
Australia Ltd., (1906) V.L.R., 754 ; 28 A.L.T., 
64 ; 12 A.L.R., 529. F.C., a' Beckett, A.- C.J., 
Hodges and Chomley, J J. 

Contract — Banker and customer — Accept- 
ance of drafts — Condition precedent — Per- 
formance rendered impossible — Part per- 
formance, acceptance of benefits of.] — The 
appellant, who carried on business in Aus- 
tralia, agreed to buy from a merchant in 
Buenos Ayres a cargo of wheat for delivery 
at a named Australian port, payment to be 
" by London banker's acceptance of seller's 
drafts at 90 days sight under confirmed credit 
with documents attached as usual which are 
to be given up on acceptance. Seller to give 
policies and/or certificates of insurance for 



2 per cent, over invoice value." For the 
purpose of carrying out the provisions as to 
payment the appellant by letter requested 
the respondent bank to issue to him » credit 
authorizing the seller to draw on London at 
90 days sight for the value of the wheat. 
The letter continued : — " Insurance to be 
effected by shippers. Drafts to be accom- 
panied by bills of lading, policy of insurance, 
merchant's certificate of weight and quality. 
Separate documents for each 100 tons of 
wheat and the certificate of your agents at 
Buenos Ayres that the conditions of the 
credit have been complied with." The appel- 
lant then undertook that in consideration of 
the bank issuing such credit he would provide 
funds by purchasing the bank's drafts on 
London at the exchange of the day to retire 
all bills drawn under the credit in time to 
meet the bills before maturity. On the same 
day, respondents at appellant's instance 
sent to their London house a cable message 
summarizing the request. A credit was 
subsequently opened by the bank in London 
under which the seller drew certain drafts 
on the bank in London and negotiated them 
in Buenos Ayres. The drafts were subse- 
quently accepted by the bank in London, 
but there were not attached to them policies 
of insurance, and the policies were not 
delivered to the bank until » fortnight 
afterwards. Prior to his requesting the bank 
to issue the credit the appellant had sold 
the wheat by a contract by whiclThe bound 
himself to deliver with the wheat separate 
policies of insurance for each 100 tons, and 
this fact was communicated to the bank in 
London before the issue of the credit. It 
appeared that under these circumstances 
the separate policies could only be issued 
in London, and would not be issued until 
after the arrival of the bills of lading. When 
the wheat arrived in Melbourne the appellant 
refused to accept delivery of the wheat. In 
an action by the bank against the appellant 
to enforce his liability in respect of the drafts, 
Held (per Griffith, C.J., Barton and O'Con- 
nor, J J., Isaacs, J., dissenting), on the con- 
struction of the documents and the facts 
that it was not a condition precedent to 
the contract between the bank and the appel- 



207 



CONTRACT OR AGREEMENT. 



208 



ant that the drafts should at the time of 
presentment for acceptance be accompanied 
by policies of insurance and that, if it was, 
the appellant had rendered its performance 
impossible, and so had excused the bank 
from performance of it. Held, also (per 
totam curiam), on the evidence, that if the 
bank by accepting the drafts unaccompanied 
by policies of insurance had failed to perform 
a condition precedent of the contract, the 
appellant by his conduct after the arrival of 
the wheat in Australia had elected to take 
advantage of the acceptance of the drafts 
and was therefore liable to provide for them. 
Fnedlander v. Bank of Australasia, (1909) 
8 C.L.R., 85. 

(6) Agreement : Breach. 

Vendor and Purchaser — Contract for sale of 
land — Requisition on title — Vendor unable or 
unwilling to comply with requisition — Right of 
vendor to annul sale — Transfer of Land Act 
1890 (No. 1149), Schedule XXV. Table A. (4).] 
Where the purchaser under a contract of sale 
of land in his requisitions on title persists 
in making requisitions of such a nature that 
the vendor by complying or partly complying 
therewith may complicate matters, the ven- 
dor may avail himself of a condition in the 
contract entitling him to annul a, sale which 
is substantially the same as condition 4 
in Schedule XXV. Table A. of the Transfer 
of Land Act 1890. West v. Hedyeland, (1909) 
V.L.R., 178 ; 30 A.L.T., 175 ; 15 A.L.R., 
123. a' Beckett, J. 

Contract of sale of land — Construction — 
Provisions for annulment and compensation, 
whether mutually exclusive — Objections to 
title or matter in particulars — Power to annul 
if objection to title " or otherwise " — Error 
in particulars — Deficiency in frontage.] — In a 
contract of sale of land the particulars 
described the property as " having a front- 
age of about 40 feet." As a matter of fact 
the frontage was 33 feet 3 inches. One of the 
conditions of sale contained in the contract 
required the purchaser within a certain time 
to deliver to the vendor a statement in writing 
of all objections to the title or " concerning 
any matter appearing on the particulars." 



In the next condition the vendor was em- 
powered, to annul the sale if the purchaser 
made any objection to the title " or otherwise" 
which the vendor was unable or unwilling 
to remove ; and then followed a condition 
providing that any mistake in the description 
or error in the particulars of the property 
should not annul the sale, but that compensa- 
tion, to be settled by arbitration, should be 
given or taken as the case might require. 
Held, that the conditions as to annulment 
and compensation were not mutually exclus- 
ive, and that, objection having been raised 
by the purchaser as to the deficiency of 
frontage, such objection was an objection 
concerning a. '' matter appearing on the 
particulars," and that, consequently, the 
vendor was entitled, to annul the contract. 
In re Cook and Preece's Contract, (1910) 
V.L.R., 328 ; 32 A.L.T., 17 ; 16 A.L.R., 324. 
Hodges, J. (1910). 

Title with apparent flaw — Existence of flaw 
negatived by proof of facts — Whether pur- 
chaser may be compelled to accept title — 
Transfer of Land Act — Land under, whether 
same rule applicable to.] — By the general law 
a title having what would appear to be » 
flaw until negatived by proof of disputable 
facts, can be forced on an unwilling pur- 
chaser, and that rule applies to land under 
the Transfer of Land Act. In re Kenna 
and Ritchie's Contract, (1907) V.L.R., 386; 
28 A.L.T., 218; 13 A.L.R., 191. a' Beckett, 
J. 

Sale of land — Restrictive covenant running 
with land — Covenant notified as an encum- 
brance on certificate of title — Purchaser of 
part of land not in fact affected by covenant — 
Whether purchaser bound to accept title — 
Proof of facts showing covenant does not 
affect part of land sold — Costs of, how borne.] 
— R., who owned an estate, as to which 
there existed a, restrictive covenant running 
with the land limiting the amount of water 
which might be discharged from it on to 
adjoining land, subdivided the estate and 
sold part of it to K. The rights of the per- 
sons claiming under the deed creating this 
restrictive covenant were notified as an 
encumbrance on the certificate of title to the 



209 



CONTRACT OR AGREEMENT. 



210 



whole estate. A requisition was made for 
an undertaking by R. that a certificate of 
title to the part sold should issue to K. free 
from the incumbrance. R. refused to give 
his undertaking and K. took out a summons 
claiming recission. The Judge found that 
by reason of the contour and natural features 
of the part purchased by K. and of the 
adjoining lands, the restrictive covenant 
would not in fact affect such part. Held, 
that K. was entitled to demand satisfactory 
evidence that the covenant in question did 
not affect the land purchased by him, which 
evidence should have been furnished at the 
cost of R., but that the encumbrance on the 
certificate of title did not constitute a valid 
objection to title. In re Kenna and Ritchie's- 
Contract, (1907) V.L.R., 386: 28 A.L.T., 
218; 13 A.L.R., 191. a' Beckett, J. 

Vendor and purchaser — Specific perform- 
ance — Time limited for production of title — 
Notice to produce — Deficiency of area — An- 
nulment of contract— Land Act 1901 (No. 
1749), sees. 35, 49 (6), 56 (6) ]— By a contract 
of sale of seven specified Crown allotments 
of land described therein as containing 2,131 
acres or thereabouts, the titles to which 
were Crown leases of grazing areas granted 
under the Land Art 1901, the vendors agreed 
that they would apply to select two of the 
allotments as agricultural allotments and » 
third as a grazing allotment, and to have 
issued to them a lease under section 49 (6) of 
the Act in respect of such two allotments, and 
a, lease under sec. 56 (6) in respect of such 
third allotment. It was also agreed that 
" the two last-mentioned leases " and the 
leases of the other grazing areas should be 
produced " to the purchaser or his solicitor 
within eight months from the day of sale 
and a, copy thereof may be made by the 
purchaser or his solicitor on application in 
that behalf to the vendors or their solicitor," 
and that in the event of non-production of 
the leases it shall be lawful for either the 
vendors or the purchaser to annul the sale. 
It was further provided that if any mistake 
should be made in the description or area of 
the property or any other error should appear 
in the particulars, such mistake or error 



should not annul the sale, but compensation 
should be fixed by referees. It was finally 
provided that time should be of the essence 
of the contract in all respects. The two 
allotments agreed to be selected as agricul- 
tural allotments were comprised in a single 
Crown lease and together contained more 
land by about 30 acres than could under the 
Act be so selected, and the allotment agreed 
to be selected as » grazing allotment con- 
tained more land by about 3 acres than could 
under the Act be so selected, and the leases 
issued in respect of such selections were of 
correspondingly smaller areas. The price 
was at the rate of 5s. per acre for the land 
agreed to be selected as agricultural allot- 
ments, and 10s. per acre for the rest. Held, 
that in order to enable the vendors to rely 
on the non-production of the leases within 
the specified period, they must before the 
expiration of that period have asked for pro- 
duction. Held, also, that the deficiency 
in the area of the land selected was not a 
ground for resisting specific performance 
of the contract, but was » matter for com- 
pensation under the contract. Cox v. Hoban 
(1911) 12 C.L.R., 256; 17 A.L.R., 195. 
H.C., Griffith, C.J., O'Connor and Isaacs, 
JJ. 

Vendor and purchaser — Agreement to give 
possession on a certain day — Condition that 
vendor may annul sale if unable or unwilling 
to comply with requisition — Inability or un- 
willingness, what is — Knowledge by vendor of 
his inability to comply with term of contract — 
Specific performance so far as possible, with 
compensation— Whether purchaser entitled to 
—Transfer of Land Act 1890 (No. 1149), 
Schedule XXV., Table A., Condition 4.]— The 
vendor under a contract for the sale of land 
made in April, 1909, agreed to give possession 
to the purchaser on May 17th, 1910. The con- 
tract contained the following condition : — In 
ease the purchaser shall . . . make any 
objection to or requisition on the title or 
otherwise which the vendor shall be unable 
or unwilling to remove or comply with and 
such objection or requisition be insisted on 
it shall be lawful for the vendor (whether he 
shall have attempted to remove such objec- 



211 



CONTRACT OR AGREEMENT. 



212 



tion or to comply with such requisition or 
not) at any time by notice in writing to annul 
the sale, and within one week after giving 
such notice to repay to the purchaser the 
amount of the purchase money or so much 
thereof as shall have been paid in full satis- 
faction of all claims and demands whatsoever 
by the purchaser, and also to return all un- 
paid acceptances given by the purchaser, 
but without any interest, costs, or damages 
of any description." At the time the con- 
tract was made a tenant was in possession 
of the premises under a lease expiring on 
May 13th, 1910, with an option of renewal 
for a term of eleven years. The purchaser 
at the time of entering into the contract was 
unaware of this option, and the vendor who 
never made any real effort to procure posses- 
sion had been refused vacant possession by 
the lessee at the end of her then current 
term. The lessee exercised her option 
and obtained a renewal of her lease for a term 
of eleven years from May 13th, 1910. The 
purchaser made requisitions on title including 
a demand for vacant possession on May 17th, 
1910. This demand was refused by the 
vendor, and the purchaser persisting in it 
the vendor gave formal notice that he annuled 
the sale purporting to act under the condition 
above set forth. In an action by the pur- 
chaser against the vendor claiming specific 
performance or specific performance so far 
as possible with damages, Held, that the 
vendor's inability or unwillingness to give 
possession was not covered by the condition 
above set out and that he was not entitled to 
annul the sale ; and that the purchaser 
was entitled to specific performance, so far 
as possible, with compensation for loss of 
possession. McGavin v. Gerraty, 32 A.L.T., 
151 ; 17 A.L.R., 85. Madden, G.J. (1911). 

Companies Act 1890 (No. 1074), sees. 24, 
39, 71 — Liquidation — List of contributories — 
Contract to take shares with condition that 
something is to be done after membership com- 
pleted — Contract that there shall be no 
membership nnless condition performed — 
Waiver.] — A person who has entered into a 
contract in praesenti to take shares, with 
an agreement that something is to be done 



after membership has been completed, is 
liable to be settled upon the list of contribu- 
tories in a, winding-up, even though such 
agreement has not been performed ; so also 
is a person whose application to take shares 
is subject to the condition that it is not to be 
perfected until something has been done, 
if by his subsequent conduct he shows his 
intention to waive any right he had to insist 
on the condition, and he makes a new agree- 
ment to take and hold shares without any 
condition. In re Australian Producers and 
Traders' Ltd., (1906) V.L.R., 511 ; 28 A.L.T., 
80 ; 12 A.L.R., 445. Gussen, J. 

(c) Alteration of Instrument in Writing. 

Promissory note — Material alteration, what 
is — Place of payment, what is — Instruments 
Act 1890 (No. 1103), sec. 65 (2).]— A promis- 
sory note, when made, contained nothing 
indicating the place of payment other than 
the printed words " Payable at ' followed 
by a blank. After delivery and without the 
authority or assent of the maker, the blank 
was filled in with the words and figures "15 
Queen's Bridge Street, Melbourne." In pro- 
ceedings against the maker for money due 
on the note. Held, that it had been materi- 
ally altered, and was accordingly avoided 
as against the maker. Semble, that it was an 
alteration of the " place of payment " within 
the meaning of sec. 65 (2) of the Instruments 
Act 1890. Sims v. Anderson, (1908) V.L.R., 
348 ; 29 A.L.T., 241 ; 14 A.L.R., 210. 
Gussen, J. 

Negotiable instrument — Material alteration, 
nature of — Instruments Act 1890 (No. 1103), 
sec. 65 — Enumeration of material alterations, 
whether exhaustive.] — The enumeration of 
material alterations in sec. 65 of the Instru- 
ments Act 1890 is not exhaustive. An 
alteration is a material alteration if it 
makes the instrument operate differently. 
Sims v. Anderson, (1908) V.L.R., 348; 29 
A.L.T., 241 ; 14 A.L.R., 210. Gussen, J. 
(1908). 

(d) Lapse of Time. 

Statute of Limitations — Simple contract 
debt — Acknowledgment — Letter from debtor's 
solicitors expressing debtor's inability to pay — 



213 



CONTRACT OR AGREEMENT. 



214 



Promise as to payment by debtor's wife.] — 
On an application for judgment in an action 
for the recovery of a simple contract debt 
which the defendant opposed on the ground 
that the debt was barred by the Statute of 
Limitations, the plaintiff relied upon two 
letters which, according to him,, were written 
by the defendant's solicitors. In the first 
letter, after stating that the defendant had no 
means whatever, the writers expressed their 
opinion that if the plaintiff delayed the matter 
for a few weeks they might be able to persuade 
the defendant's wife to pay the plaintiff's 
account and in the second letter, after 
explaining why the defendant's wife had been 
unable to settle the account as promised, 
they stated that if the plaintiff would wait 
for a certain further time, within which the 
wife would be likely to receive the balance 
of her usual quarter's income the whole 
amount of the income would be paid, and they 
asked plaintiff to send them the exact amount 
of the account as it had been mislaid. Held, 
that such letters did not constitute such an 
acknowledgment of the debt that » promise 
by or on behalf of the defendant to pay it 
should be inferred therefrom, and that 
therefore, the Statute, of Limitations was not 
prevented from running. Quaere, whether 
a. mere general statement that solicitors 
are acting for a client in connection with a 
certain claim, and nothing more, is sufficient 
evidence that such solicitors are agents 
of the debtor to make an acknowledgment. 
Holden v. Lawes-Wittewronge, (1912) V.L.R., 
82 ; 33 A.L.T., 153 ; 18 A.L.R., 28^ Cussen 
J. 

IX. — Interpretation ; Incidents or Con- 
tracts Relating to Various Subjects. 

(a) Principal and Aijent. 

Agent — Disclosed principal — Liability of 
agent — Question of fact.] — An agent who 
contracts personally though on behalf of his 
principal is personally liable, and may be sued 
in his own name on the contract, whether 
the principal is named therein or is known 
to the other contracting party or not. 
Whether an agent who discloses his principal 
contracts personally is a question of intention 
to be decided on the facts, where there is 



nothing in the language employed in making 
the contract which expressly declares the 
intention. Cooper v. Fisken, 33 A.L.T., 
231 ; 18 A.L.R., 155. a' Beckett, J. (1912). 

Principal and agent — Agent for foreign 
shipping company— Sale of passenger's ticket 
— Failure of principal to carry passenger on 
terms mentioned in ticket — Liability of agent. 
— No undertaking by agent that passenger 
should be SO carried.] — In an action for breach 
of contract the Court found on the evidence 
that the plaintiff approached the defendant's 
firm as a medium through which to obtain 
contracts for the carriage of passengers 
by the N.D.L., a shipping company, incor- 
porated and having its head office in Germany, 
the contracts to be represented by tickets to 
be used in the ordinary way ; that the 
defendant's firm agreed to provide the con- 
tracts and did so as to certain tickets actually 
issued ; that the defendant's firm never 
undertook that the passengers should be 
carried by the route or on the terms mentioned 
in the tickets ; and that the plaintiff looked 
to the N.D.L. as alone bound to provide 
the passages. Held, that the defendant was 
not liable to the plaintiff for the failure of the 
N.D.L. to carry the passengers. Cheong v. 
Lohmann, (1907) V.L.R., 571 ; 28 A.L.T., 
252 ; 13 A.L.R., 269. a' Beckett, J. 

Principal and agent — Agent contracting on 
behalf of disclosed foreign principal — Whether 
agent personally liable on contract.] — In 

determining whether an agent contracting 
on behalf of a disclosed foreign principal is 
personally liable on the contract, the Court 
will take into consideration the character of 
the transaction in which the parties are 
engaged, and the subject of the contract 
resulting from their negotiations. Cheong v. 
Lohmann, (1907) V.L.R., 571 ; 28 A.L.T., 
252; 13 A.L.R., 269. a' Beckett, J. (1907). 

Principal and agent — Breach of warranty of 
authority, nature of action for — Breach of duty 
as agent.] — An action for breach of warranty 
of authority lies only where a person having 
in fact no authority purports to bring his 
supposed principal into legal relations with 
the plaintiff. If an agent alleges that he 



215 



CONTRACT OR AGREEMENT. 



216 



has concluded a contract on behalf of his 
principal with a third party, and he has not 
in fact done so, the principal's cause of action 
is for breach of duty by the agent, and not for 
breach of warranty of authority. Oosman v. 
Ockerby, (1908) V.L.R., 298; 29 A.L.T., 
266 ; 14 A.L.R., 186. Cussen, J. 

Master and servant — Business — Attempted 
sale of as a going concern — Servant assisting — 
Lease of premises procured by servant for him- 
self — Fiduciary relation — Whether servant a 
trustee of lease for master — Transfer of lease, 
whether master entitled to.] — See Trusts and 
Trustees. Prebble v. Beeves, (1910) V.L.R., 
88; 31 A.L.T., 114; 15 A.L.R., 631. 

Book debt — Money to become payable by 
agent to principal on sale of goods — " On 
account of or in connection with . . . 
business "—Book Debts Act 1896 (No. 1424), 
sees. 2, 3.1 — See Principal and Agent. 
Shackell v. Howe, Thornton & Palmer, (1909) 8 
C.L.R., 170 ; 15 A.L.R., 176. 

Principal and agent — Landlord and Tenant 
Act 1890 (No. 1108), sec. 93— Eighth Schedule 
— Notice of intention to apply to justices to 
recover possession — Signature of notice, suffi- 
ciency of — Application by corporation — Name 
of corporation signed by agent authorised so 
to do.] — See Principal and Agent. Equity 
Trustees Executors and Agency Co. Ltd. v. 
Harston, (1908) V.L.R., 23 ; 29 A.L.T., 131 ; 
13 A.L.R., 686. 

Agent — Liability of candidate for acts of.] — 
See Commonwealth Electoral Acts, col. 
112. Grouch v. Ozanne, (1910) 12 C.L.R., 
539. 

Husband and wife — Agency — Destitute wife 
— Sale of husband's goods for purchase of 
necessaries — Authority of wife.] — See Hus- 
band and Wife. Moreno v. Slinn, (1910) 
V.L.R., 457 ; 32 A.L.T., 66 ; 16 A.L.R., 503. 

Insolvency Act 1890 (No. 1102). sec. 37— 
Compulsory sequestration — Petitioning credi- 
tor — Power of attorney — Authority of attorney 
to present petition.l — See Insolvency. In 
re Anderson, (1909) V.L.R., 465 ; 31 A.L.T., 
72 ; 15 A.L.R., 518. 



Statute of Limitations — Acknowledgment- 
Solicitor acting in connection with claim — 
Whether debtor's agent to make an acknow- 
ledgment.] — See Principal and Agpnt. 
Holden v. Lawes-Wittewronoe, (1912) V.L.R., 
82 ; 33 A.L.T., 153 ; 18 A.L.R., 28. 

Supreme Court Act 1890 (No. 1142), sec. 85 
— Where cause of action arises — Agent outside 
jurisdiction — Goods improperly sold by agent 
— Action by principal for money had and 
received — Place of payment — Rule that debtor 

must seek out creditor.] — If an agent abroad 
acting for a principal within the jurisdiction 
deals with goods in a manner not authorised 
by the principal and receives the proceeds 
thereof and the principal, waiving the tort, 
sues for money had and received, the cause 
of action does not arise within the jurisdiction. 
The rule that the debtor must seek out his 
creditor particularly applies to cases where 
the question depends upon an excuse alleged 
for non-payment of money within a juris- 
diction. Oosman v. Ockerby, (1908) V.L.R., 
298; 20 A.L.T., 266; 14 A.L.R., 186. 
Cussen, J. 

Principal and agent — Contract of agency- 
Agent to procure purchaser — Right to com- 
mission — Statement by vendor that he is ready 
to sell for a certain sum "net."] — The 
respondents who were cork and general 
merchants, and as such had had previous 
dealings with the appellant, a brewer, wrote 
to ' the appellant as follows : — " The writer 
is under the impression that he heard some- 
where that you were inclined to sell your 
business. If such is the case we should be 
glad to hear from you stating what amount 
you require for same and any particulars that 
are likely to help us to make a sale. We have 
an inquiry for a small brewery and shall be 
glad to hear from you on the subject.'' The 
appellant wrote in reply : — " In reference to 
sale of brewery, I want £2,500 net for the 
business. If I can't get that I don't sell. 
The only reason for selling I am getting too 
old, if I was 20 years younger I would not 
think of selling. Any further particulars 
you can have by applying.'' The respondents 
brought the business under the notice of S. 
who subsequently purchased it directly from 



217 



CONTRACT OR AGREEMENT. 



218 



the appellant for £2,500. Held, that the 
letters did not establish a contract between 
the appellant and respondents that the 
appellant would employ the respondents as 
his agents to introduce a purchaser on a 
promise by the appellant that, if the respond- 
ents did so, he would pay them commission ; 
and, therefore, that the respondents were not 
entitled to recover commission on the sale. 
Dolphin v. Harrison, San Miguel Proprietary 
Ltd., (1911) 13 C.L.R., 271 ; 17 A.L.R., 
444. H.C., Griffith, C.J., Barton and. O'Con- 
nor, J.J 

Contract — Agency — Order to supply goods — 
Condition for cancellation — Authority of 
agent,] — The plaintiff employed an agent 
to obtain signed orders on a printed form 
for certain machines. On the form was 
printed in special black type immediately 
above the place for the signatures the follow- 
ing statement : — " No conditions, representa- 
tions or promises are authorized and shall 
not be binding except such as are printed or 
written hereon." Another provision was 
that the order was not to be binding on the 
plaintiff until ratified by him. The defendant 
signed an order and at the same time the 
plaintiff's agent signed and handed to the 
defendant a document stating that the 
defendant might cancel the order before a 
certain date if he did not have a fair average 
crop to his satisfaction. The plaintiff, with- 
out knowing of the arrangement for cancella- 
tion, ratified the order. The Full Court 
of the State decided that the defendant might 
nevertheless cancel the order before the date 
mentioned. The amount claimed was £23 10s. 
Held, that the case was not one for special 
leave to appeal. House v. Whitelock, (1911) 
13 C.L.R., 334. H.C., Griffith, C.J., Barton 
and O'Connor, J J. 

Principal and agent — Estate agent — Con- 
tract to "introduce a buyer "—" Effect a 
sale."] — The defendant by writing authorised 
the plaintiffs, who were estate agents, to 
sell a property for " £550 or offer," and also 
to accept a deposit and sign contracts of sale 
on his behalf, and agreed "to pay then- 
usual commission if they effect a sale or intro- 
duce a buyer." The plaintiffs obtained an 



offer of £450 from P. and communicated it 
to the defendant, without disclosing who 
made it. The offer was declined, and whilst 
the plaintiffs were endeavouring to induce 
P. to offer £500, he bought the property for 
that amount through another agent. Held 
{per Hodges and Hood, J J., Madden, C.J., 
doubting), that the plaintiffs had not " intro- 
duced a buyer " within the meaning of the 
contract. Semble (per Hodges, J.), that in 
such contract the words " effect a sale " 
meant " sign a, valid contract." Looker & 
Sons v. Doveton, (1911) V.L.R., 23 ; 32 
A.L.T., 95; 16 A.L.R., 592. F.C., 

Vendor and purchaser — Contract for sale of 
land — Deposit to be paid to G. " as agent for 
vendor " — Deposit to be paid over to vendor 
on acceptance of title — Contract rescinded 
by mutual consent — Title not accepted — 
Whether vendor liable to repay deposit to 
purchaser — Money had and received — Stake- 
holder.] — One of the conditions of a contract 
in writing for the sale of certain land and 
stock provided that the purchasers should 
on the signing of the contract pay " a deposit 
of £500 " to G. " as agent for the vendor." 
Another condition provided that as soon as 
the purchasers accepted the title " the deposit 
shall be paid over to the vendor." There was 
another condition enabling the vendor in 
certain circumstances to annul the sale and 
prescribing that he should " repay " the 
purchase money already paid. The £500 
deposit was paid by the purchasers to G. but 
was not paid by him to the vendor. Sub- 
sequently the purchasers and the vendor 
by agreement in writing rescinded the eon- 
tract, title never having been accepted. In 
an action by the purchasers against the 
vendor to recover the £500 deposit as money 
had and received, Held (by Griffith, C.J., 
O'Connor and Higgins, J J. (Isaacs, J., dis- 
senting) that G. was the agent of the vendor 
and not a stakeholder, and that the pur- 
chasers were entitled to recover the £500 
from the vendor. Christie v. Robinson, 4 
C.L.R., Pt. II., 1338 ; 13 A.L.R., 288 (1907). 

Vendor and purchaser — Principal and agent 
— Sale of land — Deposit payable to agent on 
named day— Authority of agent to receive 



219 



CONTRACT OR AGREEMENT. 



220 



deposit after due date — Payment to agent by 
way of promissory note — Payment to agent 
by way of set-off — Cancellation of contract 
by principal after receipt of deposit by agent — 
Commission, right of agent to — " Total 
amount realised " — Right of agent to deduct 
commission from moneys coming to his 
hands.] — See Principal and Agent. Walder 
v. Gutts, (1909) V.L.R., 261 ; 31 A.L.T., 19 ; 
15 A.L.R., 352. 

Principal and agent — Commission — Sale of 
property — Property for sale at fixed price in 
hands of two agents — Offer by one of agents 
to a probable purchaser at price fixed refused — 
No communication as to such negotiation by 
agent to principal — Sale of property to same 
person subsequently by other agent for less 
sum after conferring with principal^- Whether 
first agent may claim commission.] — See 
Principal and Aqent. Overton v. Phillips, 
(1912) V.L.R., 143 ; 33 A.L.T., 188 ; 18 
A.L.R., 95. 

Landlord and Tenant Act 1890 (No. 1108), 
sees. 81, 83 — Distress for rent — Proceeds of 
sale — Overplus in hands of landlord's agent — 
Claim by tenant against landlord — Money had 
and received — Jurisdiction of Court of Petty 
Sessions.] — See Landlord and Tenant. 
Rhodes v. Parrott, (1912) V.L.R. 333; 34 
A.L.T., 90 ; 18 A.L.R., 353. 

Conveyancing Act 1904 (No. 1953), sec. 75 — 
Equitable charge upon land, how created — 
Investment of trust money by agent in purchase 
of land — Parol evidence.] — See Trusts and 
Trustees. In re Smith ; Smith v. Smith, 
(1909) V.L.R., 91 ; 30 A.L.T., 214 ; 15 
A.L.R., 25. 

County Court Rules 1891, r. 230 — Action for 
commission — Claim of third party — Inter- 
pleader by defendant — Claims arising out of 
same subject matter — Whether claims for 
one and the same debt.] — See County Court. 
Looker v. Mercer, 28 A.L.T. (Supplement), 15 ; 
13 A.L.R. (C.N.), 13. 

Larceny — Fraudulent conversion by agent — 
Secretary of Friendly Society — Trustees — No 
relation of Agency — Crimes Act 1890 Amend- 



ment Act 1896 (No. 1478), sec. 2].— -See 
Criminal Law. Rex v. BucMe, 31 A.L.T., 
43 ; 15 A.L.R., 372. 

Secret Commissions Prohibition Act 1905 
(No. 1974), sec. 2 — Giving of valuable con- 
sideration to agent — Tendency to influence 
agent to show favour.] — <See Criminal Law. 
Rex v. Scott, (1907) V.L.R., 471 ; 29 A.L.T., 
60 ; 13 A.L.R., 143. 

Secret Commissions Prohibition Act 1905 
(No. 1974), sec. 2 — Corruptly giving valuable 
consideration to agent — Secret giving, pre- 
sumption as to corruptness arising from.] — 

iSee Criminal Law. Rex v. Scott, (1907) 
V.L.R., 471 ; 29 A.L.T., 60 ; 13 A.L.R., 

143. 

Secret Commissions Prohibition Act 1905 
(No. 1974), sees. 2, 14 — Giving money to 
agent without principals' knowledge — Burden 
of proof.] — »See Criminal Law. Rex v. 
Stevenson, (1907) V.L.R., 475 ; 29 A.L.T., 62 ; 
13 A.L.R., 383. 

Secret Commissions Prohibition Act 1905 
(No. 1974), sec. 2 — " Corruptly," meaning 
of.] — See Criminal Law. Rex v. Stevenson, 
(1907) V.L.R., 475; 29 A.L.T., 62; 13 
A.L.R., 383. 

Factories and Shops Act 1905 (No. 1975), 
sec. 119 (1) — Employing person at lower rate 
than rate determined by Special Board — Mens 
rea. whether a necessary element of offence — 
Employer, liability of, for act of agent.] — See 
Factories and Shops Acts. Billingham v. 
Oaten, (1911) V.L.R., 44; 32 A.L.T., 170; 
17 A.L.R., 36. 

Insolvency Act 1890 (No. 1102), sec. 141 
(xii.) — Trustee, agent or broker — Unlawful 
appropriation of property held as agent — 
Principal's goods sold by agent on commission 
— Relationship of debtor and creditor — Insol- 
vency of agent — Whether agent liable for 
offence.] — See Insolvency. In re James, 
32 A.L.T. (Supplement), 12 ; 17 A.L.R. 
(C.N,), 5. 

(6) Vendor and Purchaser. 
See also; preceding sub-headings. 
Vendor and purchaser — Contract of sale — 
Provision for apportionment of Federal land 



221 



CONTRACT OR AGREEMENT. 



222 



tax — Validity — Interpretation — Land Tax As- 
sessment Act 1910 (No. 32 of 1910), sees. 37, 
63.] — The owner of certain land sold it shortly 
before the coining into operation of the Land 
Tax Assessment Act 1910, and the purchaser 
entered into possession shortly after that date. 
One of the conditions of the contract of sale 
provided that the purchaser should be liable 
for " all rates and taxes and insurance 
premiums accruing or falling due from or 
after the date of possession " but that " all 
annual outgoings and insurance premiums 
in respect of the property sold " should be 
" apportioned between the vendor and pur- 
chaser up to such date." The vendor, who 
also owned other land, having paid the Federal 
land tax in respect of the whole of his land, 
including the land so sold for the year during 
which the purchaser went into possession. 
Held, that the Federal land tax was an out- 
going within the meaning of the condition ; 
that the agreement that the laud tax for that 
year should be apportioned was not affected 
by sec. 63 of the Act ; aiid therefore that the 
vendor was entitled to recover from the 
purchaser a sum which would represent a 
portion of the Federal laud tax payable in 
respect of land whose unimproved value was 
equivalent to that of the land sold propor- 
tionate to the period of the year during which 
the purchaser had been in possession. Held, 
further, that the purchaser was not liable 
to pay at the higher rate at which the vendor 
was liable to pay because of his owning other 
land. Patterson v. Farrell, (1912) 14 C.L.R., 
348 ; 18 A.L.R., 237. Griffith. O.J., Barton 
and Isaacs, J J. 

Vendor and purchaser — Conditions of sale — 
Production of certificate of title — Place of 
production.] — One of the conditions in a 
contract for the sale of land situated in the 
neighbourhood of Kerang provided that 
" the certificate of title to the property sold 
shall be produced and a copy thereof may be 
made by the purchaser or his solicitor on 
application in that behalf to the vendor 
or his solicitor." No place for the production 
of the certificate of title was specified. The 
vendor lived near Kerang, and it was a condi- 
tion of the contract that the vendor's solicitor 



was M. O. of Kerang. Held, that the certi- 
ficate of title should be produced at some 
place reasonably convenient to Kerang, 
it might be the land itself or the place of 
residence or business of the vendor or his 
solicitor, and that the production of the 
certificate of title at Melbourne was not a 
compliance with the condition. Morrison v. 
Hicbardson, (1907) V.L.R., 218; 28 A.L.T., 
166 ; 13 A.L.R., 94. Hodges, J. 

Contract of sale — Construction — Sale of 
land under name by which it is known — 
Words stating measurements, whether words 
of estimate or of warranty.] — In a contract 
of sale of land the particulars described the 
property sold as being " that property known 
as Nos. 420 and 422 Church Street, Richmond, 
Victoria, and having a frontage of about 40 
feet by a depth of 130 feet to a right of way 
on which are erected two shops." Semble, 
what was sold by the contract was the pro- 
perty known as Nos. 420 and 422 Church 
Street, Richmond, and the words " about 
40 feet " were words of estimate and not of 
warranty. In re Cook and Preece's Contract, 
(1310) V.L.R., 328; 32 A.L.T., 17; 16A.L.R., 
324. {Hodyes, J. (1910). 

Vendor and purchaser — Sale of part of a 
parcel of land — Retention by vendor of balance 
— Implied grant of easement.]— See Vend ok 
and Purchaser. Nelson v. Walker, 10 
C.L.R., 560 ; 16 A.L.R., 285. 

Quasi-easement — Severance of unity of 
possession and title — Implied grant — Deroga- 
tion from grant.] — See Vendor and Pur- 
chaser. Nelson v. Walker, 10 C.L.R., 560 ; 

16 A.L.R., 285. 

Vendor and purchaser — Title — Executor or 
administrator — Conveyance by — Devolution of 
estate — Administration and Probate Act 1890 
(No. 1060), sec. 6.] — See Vendor and Pur- 
chaser. In re Thomas and McKenzie's 
Contract, (1912) V.L.R., 1; 33 A.L.T., 141; 

17 A.L.R., 451. 

Vendor and purchaser— Deposit paid to 
agent of vendor — Rescission of contract — 
Recovery of deposit from vendor— Stake- 
holder—Money had and received.]— By the 



223 



CONTRACT OR AGREEMENT. 



224 



conditions of a contract in writing for the 
sale of land and stock it was provided that a 
deposit of £500 should bo paid by the pur- 
chasers to A. " as agent for the vendor." 
By another condition it was provided that as 
soon as the purchasers had accepted title " the 
deposit should be paid over to the vendor." 
The £500 was paid by the purchasers to A., 
and was never paid by him to the vendor. 
Subsequently in writing the contract was — 
" cancelled by mutual consent " of the 
vendor and purchasers, title never having 
been accepted. Held (per Griffith, C.J., 
O'Connor and Higgins, J J., Isaacs, J., 
dissenting), that the pvirchasers were entitled 
to recover the £500 from the vendor. Christie 
v. Robinson, (1907) 4 C.L.R., 1338; 13 
A.L.R., 288. • 

(c) Bills o\ hading. 

Ship — Bill of lading — Exceptions, con- 
struction of — Heat of holds — Neglect of mas- 
ter, mariners or others in service of owners — 
Fruit damaged by negligent omission to admit 
air to hold,] — Fruit was shipped at Naples 
in good order and condition fit for travelling 
and properly packed to be delivered under 
the bill of lading at Melbourne " in like good 
order and condition," but arrived in a dam- 
aged condition owing to the negligence of the 
servants of the shipowners in not admitting 
sufficient air to the hold in which the fruit 
was carried. The bill of lading exempted 
the shipowners from any liability for any loss 
or damage from certain causes or perils, in- 
cluding inter alia " effects of climate," " heat 
of holds " and " neglect, default, or error 
in judgment of the master, mariners, engineers 
or others in the service of the owners." In 
an action by the shippers against the ship- 
owners, Held, that on the true construction 
of the bill of lading the " neglect " should 
not be limited to subject matters other than 
those previously specified and that the ship- 
owners were exempted from liability for any 
neglect or default of any of their servants 
in the discharge of any of their duties con- 
nected with bringing the ship and its cargo 
from port to port. Henty v. Orient Steam 
Navigation Co. Ltd., 29 A.L.T., 48 ; 13 
A.L.R., 516. Hodges, J. (1907). 



Agreement to sell goods — Goods to be ship- 
ped from Glasgow and delivered at a certain 
place at Melbourne — Price payable in London 
on receipt of proper bill of lading — Place of 
delivery in bill of lading different from place 
provided by agreement — Place of completion 
of contract — Delivery of shipping documents 
in accordance with agreement — Whether a 
condition precedent — Bight of recession.] — 
C. in Glasgow agreed to sell to H. in Melbourne 
superphosphates on (inter alia) the following 
terms : — Shipment at Glasgow, price 70s. 
per ton c.i.f., destination Sydney and/or 
Melbourne railway wharves, buyer's option^ 
to be declared by buyer before sailing ; terms 
cash against documents in London against 
letter of credit provided by buyer in London. 
H. forwarded to C. a letter of credit on a bank 
in London payable on C. delivering to the - 
bank shipping documents in accordance with 
the contract. 0. shipped the goods, but the 
bills of lading merely provided for delivery 
at wharves in Melbourne and not nt railway 
wharves in Melbourne. On C. presenting the 
letter of credit together with the shipping 
documents, the bank refused to pay under the 
letter of credit. The documents, together 
with the draft on H., were forwarded to him 
in Melbourne. He refused to accept the same. 
Held, that the contract was to have been 
completed in London by C. delivering to the 
bank proper shipping documents (i.e., docu- 
ments in accordance with the contract) and 
the bank paying the price therefor. Held, 
further, that the delivery of shipping docu- 
ments in strict accordance with the contract 
was a, condition precedent, and that as the 
bill of lading did not provide for the contract- 
ual destination of the goods, the defendant 
was entitled to rescind the contract. Alex- 
ander Cross & Sons Ltd. v. HaseU, (1908) 
V.L.R., 194 ; 29 A.L.T., 179; 14 A.L.R., 44. 
Cussen, J. 

Sale of goods to be shipped from one port to 
another — Price payable at certain place on 
delivery of shipping documents — Bill of lading 
stating goods shipped by vendor and deliver- 
able to his order or assigns — Property in goods, 
passing of— Delivery, when effected.] — In a 
c.i.f. contract for the shipment of goods from 



225 



CONTRACT OR AGREEMENT. 



226 



one port to another, where payment is to be 
made at a certain place on the surrender of 
the shipping documents, and the seller takes 
a bill of lading which states that the goods 
are shipped by him and deliverable to his 
order or assigns, there is no sale or delivery 
of the goods or the symbol of the goods Until 
the indorsement and delivery of the bill of 
lading to the buyer or his agents. Alexander 
Gross <fc Sons Ltd. v. Hasell, (1908) V.L.R., 
194 ; 29 A.L.T., 179 ; 4 A.L.R., 44. Cussen, 
J. 



Stipulations as to place of delivery— Whether 
conditions precedent or warranties — Sym- 
bolical delivery elsewhere than place of actual 
delivery.] — In the absence of express agree- 
ment, stipulations as to place of delivery or as 
to place of consignment, where there is to be 
symbolical delivery elsewhere, are conditions 
precedent. Alexander Gross <fc Sons Ltd. v. 
Hasell, (1908) V.L.R., 194; 29 A.L.T., 179; 
14 A.L.R., 44. Cussen, J. 

Contract — Sale of goods to be shipped 
abroad—" C.i.f.e." contract— Place of deliv- 
ery—County Court Practice — Jurisdiction — 
Part of cause of action arising out of jurisdic- 
tion.] — A contract for the sale of timber was 
made in Melbourne between the plaintiffs, 
a, Melbourne firm, and the defendants, who 
were described as of " Melbourne," but who 
had their principal place of business in New 
York, with a branch house in Melbourne. 
The contract provided that the price should 
be £18 15s. per 1,000 feet super., c.i.f.e. 
Melbourne ; that the terms should be 
" sellers' New York house on shipment to 
draw on buyers at 90 days' sight " ; that 
shipment should be " at New York by sailing 
vessel — May shipment " ; and that " sellers 
reserve the right to insure against war risk, 
the cost of which to be paid for by buyers 
in addition to the price above-named." 
Held, that the place of delivery under the 
contract was New York, and that, therefore, 
as the whole cause of action did not arise 
in Victoria, the County Court had no juris- 
diction in an action for non-delivery of the 
timber in accordance with the contract. 
Boicden v. Little, (1907) 4 C.L.R., 1364 ; 13 
A.L.R., 689, followed. Crooke v. Smith, 



(1878) 4 V.L.R. (L.), 95, and Brooks, 
Robinson & Co. v. Smith, (1890) 16 T.L.R., 
245; 11 A.L.T., 168, applied. H. Beecham 
<fc Co. v. R. W. Cameron <fc Co., (1910) 
V.L.R., 19 ; 31 A.L.T., 100 ; 15 A.L.R., 598. 
F.C., Madden, C.J., Hood and Cussen, J J. 

Place of performance— Variation thereof— 
Course of dealing.] — The place of performance 
of a contract may be varied by a course of 
dealing between the parties thereto. Kelsey 
v. Caselbe.rg, (1909) V.L.R., 317 ; 31 A.L.T., 
31 ; 15 A.L.R., 362. Madden, C.J. 



Sale of goods— Divisibility of contract — 
Delivery " spread "—Right of vendor to 
deliver in more than one instalment — Duty of 
purchaser to pay for each instalment as 
delivered.] — On 8th December, 1910, the 
plaintiffs and the defendants agreed that the 
plaintiffs should sell and the defendants 
should buy, 2,000 bags of maize at 2s. 7d. 
per bushel, delivered f.o.b. Melbourne, ship- 
ment spread over January and February, 
1,000 bags each month, terms net cash against 
documents. On 12th January, 1911, before 
any shipments were made, the defendants sug- 
gested to the plaintiffs that the plaintiffs 
should ship 500 bags in January, and delay 
the second 500 bags till early in February. 
Plaintiffs agreed to this course. On 28th 
January the plaintiffs shipped 296 bags at 
Melbourne, but was prevented from shipping 
more by reason of a strike of wharf labourers. 
Plaintiffs forwarded the shipping documents 
to the defendants. No more maize was ship- 
ped during January. Defendants refused to 
accept or to pay for the 296 bags. Held, 
that the word " spread " still applied to the 
contract as altered ; that, having regard to it, 
the plaintiffs were at liberty to deliver in 
more than one instalment ; that the contract 
was divisible, and that the defendants were 
bound to pay against the documents for each 
instalment as delivered, and were not entitled 
to reject the 290 bags. Brand v. Laurence, 
1 Q.B.D., 344, followed ; Renter Hul eland 
dk Co. v. Sala cfc Co., 4 C.P.D., 239, dis- 
tinguished. L. Osborn & Co. Ltd. v. David- 
son Bros., (1911) V.L.R.,416; 33 A.L.T., 66; 
17 A.L.R., 448. Hodges, J. (1911). 

8 



227 



CONTRACT OR AGREEMENT. 



228 



(d) Arbitration. 

Arbitration— Agreement to submit to — 
Intention to make, how to be ascertained.] — 

No special words are essential to create a 
stipulation for a formal arbitration, provided 
the intention can be gathered from the words 
in fact used, or is reasonably to be intended 
from them, or from the nature and purpose of 
the stipulation. Briscoe <Ss Co. Ltd. v. 
The Victorian Railways Commissioners, 
(1907) V.L.R., 523; 29 A.L.T., 17; 13 
A.L.R., 308. Madden, C.J. 

Sale of goods — -Goods to be in every respect 
to the satisfaction of the purchaser's store- 
keeper — Condition that all disputes arising 
under contract shall be determined by store- 
keeper — Goods rejected by storekeeper — Goods 
sold and delivered — Goods bargained and sold 
— Non-acceptance of goods — Arbitration so- 
called and arbitration proper — Whether vendor 
entitled to have dispute dealt with by store- 
keeper as arbitrator.] — The plaintiff by con- 
tract under seal covenanted to supply the 
defendant with stores, of the kind specified 
in a schedule, to the order in writing of the 
defendant's storekeeper under agreed condi- 
tions and in strict accordance with the pre- 
scribed samples (if any). Condition 10 pro- 
vided that in the case of any item in the 
schedule in which no particular brand of 
stores is specified the contractor may at his 
option supply the stores of any brand, 
provided that the whole of the stores supplied 
under the contract be in the judgment of the 
storekeeper of the very best quality and 
strictly in accordance with the prescribed 
sample if any and in every respect to the 
satisfaction of the storekeeper. Condition 
12 provided that notwithstanding that any 
of the stores supplied may have been pro- 
visionally signed for or accepted by the 
receiving officer, or that they may have been 
paid for, the storekeeper shall have full power 
to reject any of such stores which in his judg- 
ment are not in every respect in accordance 
with this contract and such rejection may take 
place at any time until the storekeeper shall 
have expressly certified in writing that the 
whole of such stores so supplied under the 
particular order have been found, after 



complete examination and testing, to be in 
every respect in accordance with this con- 
tract. The condition also provided that 
notice of rejection should be given to the 
contractor in writing by the storekeeper, and 
that the contractor should remove the 
rejected stores within a certain time and re- 
place them with stores in every respect in 
accordance with the contract, failing which 
the storekeeper might purchase stores which 
in his opinion were suitable at the contractor's 
risk. Condition 13 provided that payments 
should be made on the certificate in writing 
of the storekeeper. Condition 19 was in the 
following terms : — AH questions and disputes 
relating to the construction of this contract, 
or otherwise arising thereunder, shall be 
determined by the storekeeper, and his de- 
cision shall be final and binding on the cor- 
poration {i.e., the defendant) and the con- 
tractor respectively. Stores were supplied 
by the plaintiff which were not in the opinion 
of the storekeeper within the meaning of 
condition 10 of the very best quality, nor 
strictly in accordance with the order and the 
sample, and were not in every respect to the 
satisfaction of the storekeeper, and they were 
in consequence rejected by him under condi- 
tion 12, and no certificate in writing under 
conditions 12 or 13 was given by him. Held, 
that the plaintiff could not recover the price 
of the goods in an action for goods sold and 
delivered or for goods bargained and sold, 
and was precluded from recovering damages 
against the defendant for not accepting 
the stores supplied. Held, further, that the 
plaintiff was not entitled under condition 19 
to insist on an inquiry in the nature of an 
arbitration by the storekeeper in respect of 
a matter which he had already considered 
and dealt with under condition 12. Laidlaw 
v. Hastings Pier Co. (referred to in Hudson 
on Building Contracts) ; Scott v. Corporation 
of Liverpool, 3 DeG. & J., at p. 363 ; Goodyear 
v. Mayor, doc, of Weymouth, 35 L.J. N.S. 
C.P., 12 ; and Wadsworth v. Smith, L.R. 6 
Q.B., 332, discussed and applied. Robins v. 
Goddard, (1905) 1 K.B., 294, and Re Hohen- 
zollem, disc, and the City of London Corpora- 
tion, 54 L.T. N.S., 596, distinguished. Bris- 
coe <fc Co. Ltd. v. The Victorian Railways 



229 



CONTRACT OR AGREEMENT. 



230 



Commissioner*, (1907) V.L.E., 523 ; 29 
A.L.T., 17; 13 A.L.R., 308. Madden, 
C.J. 

Arbitration — Building contract — Extension 
of time fixed for completion — Determination 
of contract by employer during currency of 
further time allowed for completion — Arbitra- 
tion provision, whether applicable — Supreme 
Court Act 1890 (No. 1142), see. 152.]— One of 
the conditions of a, contract between a 
shire council and a contractor for building a 
bridge provided that the contractor should 
complete the whole of the works on a certain 
day. Another condition provided that if the 
contractor should, in the opinion of the 
engineer, fail to make such progress with 
the works as the engineer should deem 
sufficient to ensure their completion within 
the specified time, and should fail or neglect 
to rectify such cause of complaint for seven 
days after being thereunto required in writing 
by the engineer, it should be lawful for the 
council to determine the contract. A third 
condition provided should " any doubt dis- 
pute or difference arise or happen touching 
or concerning the said works ... or in 
relation to the exercise of any of the powers 
of the council or the engineer under this 
contract or any claim made by the contractor 
in consequence thereof or in any way arising 
therefrom or in relation to any impediment 
prevention or obstruction to or in the carrying 
on of the works of this contract or any part 
thereof (or any extras additions enlargements 
deviations or alterations thereon or thereof) 
by the council or the engineer ... or 
any claim made by the contractor in conse- 
quence thereof or in any way arising therefrom 
or touching or concerning the meaning or 
intention of this contract or of the specifica- 
tions or conditions or any other part thereof 
. . . or respecting any other matter or 
thing not hereinbefore left to the decision or 
determination of the engineer " every such 
doubt, dispute and difference should from 
time to time be referred to and settled and 
decided by the engineer. Subsequently the 
council agreed to extend the time for comple- 
tion, and, by an indenture between the 
parties, the condition for completion on a 



certain day was rescinded, and a new condi- 
tion was substituted identical in terms except 
that a new date for completion was inserted. 
The council, after the original date for com- 
pletion and before the new date, purported 
to determine the contract in pursuance of 
the conditions in that behalf. An action 
having been brought by the contractor 
claiming (inter alia) damages for breach of 
contract, for wrongful prevention of due and 
complete performance, and for wrongful 
determination of the contract, and upon a 
quantum meruit for work and labour done, 
Held, that the matters in dispute were refer- 
able to the arbitration of the engineer, not- 
withstanding that the original time for 
completion had passed when the contract 
was determined, and, therefore, that the 
action should be stayed under sec. 152 of the 
Supreme Court Act 1890. Burton v. Bairns- 
dale, President, &c, of Shire of, (1908) 7 
C.L.R., 70; 14 A.L.R., 529. H.C., Barton, 
0' Connor, Isaacs and Higyins, J J. 

County Court — Action on insurance policy — 
Arbitration a condition precedent to right of 
action — Stay of proceedings — Adjournment — 
Jurisdiction — County Court Act 1890 (No. 
1078), sec. 71.] — See County Court. Borrett 
v. Norwich and London &c. Association, 29 
A.L.T. (Supplement) 1 ; 13 A.L.R. (C.N.), 
22. 

Arbitration — Submission — Revocation — 
Incorporation of laws of Victoria — Bank- 
ruptcy of one of the parties to the agreement 
for reference — Leave to revoke submission — 
Supreme Court Act 1890 (No. 1142), sees. 141, 
160.] — A contract in writing provided that 
all differences arising between the contracting 
parties should be referred to two arbitrators, 
one to be appointed by each party. The 
contract did not expressly provide that the 
submission should be made a rule of Court, 
but provided (inter alia) that the arbitration 
should take place in Melbourne and should be 
" subject to the provisions of the law in that 
behalf for the time being in force in Vic- 
toria," or failing Melbourne, in such other 
place as the principal business should then be 
carried on. After differences had arisen 
between the parties, and one of them had 



231 



CONTRACT OK AGREEMENT. 



232 



been adjudged bankrupt, he appointed an 
arbitrator, whereupon the other party ap- 
plied to the Court for leave to revoke the 
appointment, power and authority of the 
arbitrator appointed. Held, that the pro- 
vision in the contract that the arbitration 
should be subject to the laws of Victoria 
amounted to an agreement that the submis- 
sion should be made a rule of Court, and that 
under sec. 141 of the Supreme Court Act 1890 
the arbitrator's authority was not revocable 
without the leave of the Court. In re 
Mitchell and Izard and the Governor of Ceylon, 
21 Q.B.D., 408, followed. Held, further, that 
in view of the bankruptcy of the party 
appointing, such leave should be given. Re 
Freeman and Kempster, (1909) V.L.R., 394; 
31 A.L.T., 42; 15 A.L.R., 444. a' Beckett, J. 
(But see Arbitration Act 1910 (No. 2265).] 

(e) Patent Rights. 

Patents Act 1903 (No. 21 of 1903), sec. 62— 
Sales o! patented articles to jobbers and 
dealers — Infringement by dealer of patentee's 
rights — Bights of patentee — Condition imposed 
upon dealer.] — The appellants held patents 
under the Commonv;ealth Patents Act 1903 
for improvements in phonographs, sound 
records or blanks, and in the production of the 
two latter articles, and under sec. 62 were 
entitled, by way of monopoly by themselves, 
their agents and licensees " to make, use, 
exercise and vend the invention ... in 
such manner as to him seems meet." It ap- 
peared that their course of business was to 
sell their patented articles to jobbers, who in 
turn sold to dealers, the dealers' contracts 
being made with the appellants. The main 
object of those contracts was to prevent the 
undercutting of trade prices and also the 
introduction of rival goods by way of exchange 
The respondent held various dealers' con- 
tracts made in April and May, 1906, and was 
entered on the appellant's dealers' list under 
a dealers' contract, which rendered him liable 
to be withdrawn therefrom on violating any 
of the conditions of sale therein expressed or 
any other reasonable conditions which might 
from time to time be imposed. If so with- 
drawn he undertook that he would in no way 
" handle sell or deal in or use, either directly 



or indirectly " the patented articles unless 
authorised to do so in writing by the appel- 
lants. In an action to restrain the respondent 
whom the appellants had removed from their 
dealers' list from (1) acting in breach of con- 
tract ; (2) infringing their patent rights, their 
Lordships approved the finding by the High 
Court that no violation by the respondent 
of his contract had been established. Held, 
therefore, that he was free from those con- 
tractual obligations to the appellants, result- 
ing from the withdrawal of his name from 
the dealers' list, which imposed upon him a 
comprehensive restraint on his conduct as a 
trader. But, held, also, that the appellants 
were entitled under the Statute to impose 
conditions in transactions of making, using, 
and vending their patented articles ; that 
knowledge of those conditions was brought 
home to the respondent by the said contract ; 
and that he could not deal therewith as ordin- 
ary articles of commerce free from the condi- 
tions so imposed. National Phonograph Co. 
of Australia Ltd. v. MencJc, (1911) A.C., 336; 
17A.L.R.94. P.C. 

(/) Insurance. 

Insurance — Re-insurance — Construction of 
policy — Statements basis of contract — Settle- 
ment of claim by re-insured — Liability of re- 
insurers.] — By a policy dated 2nd January, 
1908, the respondents insured the life of M. 
for £5,000 with profits, the policy providing 
that certain written statements made by M. 
as to his health, should be the basi= of the 
contract, and that the policy would be void 
if they were untrue. By a proposal form of 
the same date the respondents applied to the 
appellants to re-insure M's life for £5,000. 
This proposal contained » provision that in 
accepting the risk the appellants did so on the 
same terms and conditions as those on which 
the policy had been granted by the respond- 
ents " by whom, in the event of claim, the 
settlement will be made." The appellants 
on 28th January, 1908, issued a policy of 
ro-insurance for £5,000, but limited to the 
amount which the respondents should pay 
irrespective of any bonus. The policy recited 
that the written statement of M. was the basis 
of the contract, also that the appellants had 



233 



CONTRACT OR AGREEMENT. 



234 



agreed to accept the respondents' proposal. 
M. died in May, 1909, and a claim wa3 made 
against the respondents by his executrix. 
The appellants informed the respondents 
that they had reason to believe that some of 
the statements made by M. were untrue, and 
■warned them thet they would not acquiesce 
in a settlement. The respondents, however, 
paid £5,000 in settlement of the claim, and 
sued the appellants upon the policy of re- 
insurance. The jury found that certain 
of M.'s statements were untrue, and that 
he had been guilty of concealment and mis- 
representation, but that the respondents, 
iu settling the claim, had acted reasonably 
and bona fide. Held, that, assuming that the 
provision in the proposal form that a settle- 
ment should be affected by the respondents 
was incorporated in the policy of re-insurance, 
that provision could not alter the express 
terms of the policy, which warranted the 
truth of M.'s statements, and that, the jury 
having found those statements to be false, 
the appellants were not liable. Australian 
Widows' Fund Life Assurance Society Ltd. 
v. National Mutual Life Association of 
Australasia Ltd., (1914) A.C., 634. P.C. 

County Court— Action on insurance policy — 
Arbitration a condition precedent to right of 
action — Stay of proceedings — Adjournment — 
Jurisdiction — County Court Act 1890 (No. 
1078), sec. 71.] — See County Court. Bar- 
rett v. Norwich and London Accident Insur- 
ance Association, 29 A.L.T. (Supplement), 1 ; 
13 A.L.R. (C.N.), 22. 

Contract — Life assurance — Statements by 
party proposing to insure to be basis of con- 
tract — Whether a warranty.] — See, ante, VI. 
Misrepresentation ; Non-disclosure. Dal- 
gety <Sb Co. Ltd. v. Australian Mutual Provi- 
vident Society, (1908) V.L.R., 481 ; 30 A.L.T., 
4 ; 14 A.L.R., 299. 

Contract — Insurance — Innocent non-dis- 
closure of material fact discovered before 
completion of contract.] — See, ante, VI. Mis- 
representation ; Non-disclosure. Dal- 
gety dk Co. Ltd. v. Australian Mutual Provi- 
dent Society, (1908) V.L.R., 481 ; 30 A.L.T., 
4 ; 14 A.L.R., 299. 



Contract of life assurance — Parties — Policy 
for benefit of assured only —Refusal of execu- 
tors of will of assured to sue on policy — Action 
by beneficiaries under will of assured — Cause of 
action.] — See Insurance. Miller v. National 
Mutual Life Assurance Association of Aus- 
tralasia Ltd., (1909) V.L.R., 193 ; 30 A.L.T., 
193 ; 15 A.L.R., 141. 

(g) Building Contract. 

Building contract — Provision for appoint- 
ment of architect to certify for payments to 
contractor — No architect appointed — Waiver 
— Payment of whole of contract price — Subse- 
quent discovery of defects — Architect's certi- 
ficate, effect of.] — A contract to build a 
house provided that the work should be 
carried out to the full intent and meaning 
of the drawings and specifications and 
to the satisfaction of such architect as should 
be appointed by the proprietor to give cer- 
tificates for payments to the contractor, and 
that no payments should be made except 
on the certificate of the architect. It also 
provided that the whole was to be completed 
in a workmanlike and thorough manner, and 
to the satisfaction of the proprietor. No 
architect was in fact appointed, and after 
the house had been built and the whole of the 
contract price paid, the proprietor discovered 
that in certain particulars the specifications 
had not been complied with. He accordingly 
brought an action for breach of contract 
against the contractor. Held, (1) that the 
parties had by their conduct waived the 
right to have an architect appointed ; (2) 
that the fact of the payment of the whole of 
the purchase money was not conclusive 
proof that the work had been done to the 
proprietor's satisfaction. Semble, the pro- 
vision for the appointment of an architect 
was for the benefit of the proprietor in the 
first instance, and not for the advantage or 
protection of the contractor. Semble, the 
architect's certificate, if given, would not have 
been conclusive against the proprietor. 
Hopper v. Meyer, (1906) V.L.R., 235; 27 
A.L.T., 185; 12 A.L.R., 146. F.C., Hol- 
royd, A.-C.J., a' Beckett and Hodges, J J. 
(1906). 



235 



CONTRACT OR AGREEMENT. 



236 



(h) Contract of Employment. 

See also Employer and Employee, Factor- 
ies and Shops Acts, Public Service 
and Railways. 

Indentures of apprenticeship, what are — 
Writing not under seal.] — The term indentures 
of apprenticeship has no specific legal signi- 
ficance, and will include a writing not under 
seal. Kines v. Phillips, (1900) V.L.R., 417 ; 
28 A.L.T., 1; 12 A.L.R., 249. a' Beckett, 
A.- C.J. (1906). 

Factories and Shops Act 1903 (No. 1857), 
sec. 7 — Factories and Shops Act 1900 (No. 
1654), sees. 4, 15, 22 — Indentures of appren- 
ticeship binding employer to instruct, what 
are. — Agreement to employ an " apprentice " 
in connection with employer's business — No 
clause binding employer to instruct — Nature 
of business not described.] — See Factories 
and Shops Acts. Hines v. Phillips, (1906) 
V.L.R., 417; 28 A.L.T., 1; 12 A.L.R., 249. 

Action, cause of — Inducing employer to 
discharge employee from his employment — 
Interference — Lawful justification or excuse 
— Intention to injure — Malice — Self-interest — 
Trades union — Secretary.] — See Employer 
and Employee. Bond v. Morris, (1912) 
V.L.R., 351 ; 34 A.L.T., 52 ; 18 A.L.R., 348. 

(i) Trustees and Executors. 

Trusts Act 1896 (No. 1421), sec. 11— 
Trustee — Power to compromise — Agreement 
between trustee and tenant for life — Com- 
promise as to future liability of tenant for 
life for repairs — Disadvantage of the estate — 
Mistake of law, effect of.] — See Trusts and 
Trustees. In re Tong ; Tong v. Trustees, 
dkc, Co. Ltd., (1910) V.L.R. 110; 31 A.L.T., 
169; 16 A.L.R., 87. 

Executor — Commission — Probate in Scot- 
land and Victoria — Victorian executors also 
attorneys of trustees of will in Scotland — 
Agreement as to commission — Costs of execu- 
tors passing accounts — Administration and 
Probate Act 1890 (No. 1060), sec. 26.]— See 
Executors and Administrators. Cattan- 
ach v. Macpherson, (1908) V.L.R., 390 ; 29 
A.L.T., 259 ; 14 A.L.R., 214. 



(j) Deeds of Separation. 

Judicial separation — Suit for — Deed of 
separation — Covenants — Dum casta clause — 
Maintenance clause — Duration of allowance 
to wife.] — See Husband and Wins. Woods 
v. Woods, (1913) V.L.R., 39; 34 A.L.T., 104; 
18 A.L.R., 460. 

Divorce — Alimony pendente lite — Deed of 
separation containing covenant by wife not to 
require payment for her maintenance and 
support — Petition by wife for dissolution of 
marriage.] — See Husband and Wipe. 
Brooher v. Brooker, (1910) V.L.R., 488; 
32 A.L.T. 108 ; 16 A.L.R., 580. 

(k) Banker and Customer. 

Banker and customer — Cheques drawn with 
spaces afterwards fraudulently filled up — 
Liability of bank — Duty of customer — Negli- 
gence.] — See Banker and Customer, col. 70. 
Colonial Bank oj Australasia v. Marshall, 
(1906) A.C., 559. 

Deposit receipt, security by way of — Con- 
tract to supply goods to Crown — Security for 
due performance of contract — Deposit receipt 
in name of servant of Crown procured by 
contractor and delivered to such servant — Con- 
tractor's account with bank overdrawn — 
Contract duly performed — Whether amount 
of deposit receipt a debt due by Crown to 
contractor — Money had and received — Set-off 
of bank's claim against contractor, whether 
justifiable.] — See Banker and Customer, 
cols. 70, 71, 72. The King v. Broun, 14 
C.L.R., 17; 18 A.L.R., 111. 

Savings Bank — Lost pass-book — Payment 
by bank on forged order to person other than 
depositor before notice of loss given —Whether 
bank liable — Rules, General Order No. 26, rr. 

45, 48.] — See Banker and Customer, col. 
72. Levy v. Commissioners oj Savings Banks, 
(1906) V.L.R., 299; 27 A.L.T., 171; 12 
A.L.R., 140. 

" The Manager " of a bank, meaning of.] — 
See Banker and Customer, col. 72. Union 
Bank of Australia v. Whitelaw, (1906) V.L.R., 
711; 28A.L.T., 17; 12 A.L.R., 393. 



237 



CONTRACT OR AGREEMENT. 



238 



(l) Other Contracts. 

Particular contract — Interpretation — 
" Theatre," meaning of,] — The registered 
proprietor of the performing rights in a play 
gave to X. " the exclusive licence to perform 
the said play in any theatre in any part of 
Australia." Held, that the word " theatre " 
was not restricted in meaning to licensed 
theatres, but meant the places where the 
play was performed. Meynell v. Pearce, 
(1906) V.L.R., 447 ; 27 A.I..T., 226 ; 12 
A.L.R., 282. Cussen, J. (1906). 

Partnership agreement — Construction — 
Share payable on death of partner — Whether 
at his absolute disposal or in trust for widow 
and children.] — See Partners and Partner- 
ship. England v. Bayles, (1906) V.L.R., 
94 ; 27 A.L.T., 181 ; 12 A.L.R., 122. 

Contract — Transmission of cablegrams by 
company — Agreement between company and 
Government — Powers of Government to reduce 
rates — Abolition of rates — Rights of company 
— Post and Telegraph Rates Act 1902 (No. 
13 of 1902) — Tasmanian Cable Rates Act 
1906 (No. 10 of 1906).]— By various agree- 
ments made between a telegraph company, 
which had laid a telegraph cable between 
Tasmania and Victoria and the Tasmanian 
Government, to whose rights and liabilities 
under the agreements the Commonwealth 
succeeded, the company was given a monopoly 
of submarine telegraph communications bet- 
tween Tasmania and Victoria for a fixed 
period, a scale of charges for the transmis- 
sion of telegrams was fixed, and it was pro- 
vided that the Government should pay » 
subsidy of £4,200 a year. It was further 
provided that the Government should have 
" full power at any time to reduce " the scale 
of charges for telegrams, that in each year 
the company should be entitled to take " the 
whole of the proportion of the moneys 
collected and receivable by them from all 
sources in respect of such telegrams," called 
" message receipts," and, that " if, after 
such reduction in the scale of charges, the 
message receipts shall not in any year . . . 
by reason of such reduction or otherwise 
amount to the sum of £5,600, the Tasmanian 
Government shall guarantee and pay to the 



Telegraph Company, and their assigns, the 
difference between the message receipts and 
the said sum of £5,600." Held, (per 
Griffith, O.J., Barton and O'Connor, J J., 
Higgins, J., dissenting), that the power to 
reduce the rates did not authorize the Com- 
monwealth to abolish them. The Common- 
wealth, after a previous reduction, purported 
to abolish the rates altogether, and thereupon 
the Company protested, and for some time 
after there business was carried on uninter- 
ruptedly so far as the carrying of telegrams 
was concerned. Held, that the Company was 
entitled in respect of telegrams carried after 
the date of the attempted abolition to be 
paid as if no such abolition had been attempted 
Higgins, J. concurring on the ground that 
the defendant, by agreeing to the special 
case in its existing form, had precluded 
themselves from contending to the contrary. 
Held, further, that the Post and Telegraph 
Rates Act 1902 as amended by the Tasmania 
Cable Rates Act 1906, did not affect the rights 
of the parties under the agreements. Eastern 
Extension Australasia <fcc. Co. v. The 
Commonwealth, (1908) 6 C.L.R., 647; 14 
A.L.R., 542. 

X. — Damages. 

Damages — Sale of specific chattel — Special 
measure of damages prescribed by warranty 
— Whether special measure of damages applies 
where the specific chattel is not delivereed 
Loss of profits — Purpose for which chattel 
purchased disclosed to vendor.]— Where in a 
warranty, part of a written contract for the 
sale of a specific chattel, a special measure of 
damages is provided, that special measure 
of damages does not apply if the specific 
chattel purchased under the contract is not 
delivered. Damages may be recovered for 
loss of profits occasioned by the non-delivery, 
the purpose for which the specific chattel 
was purchased being known to the seller. 
Bruton v. Farm and Dairy Machine Co. 
Proprietary Ltd., (1910) V.L.R., 196; 31 
A.L.T., 200; 10 A.L.R., 241. F.C., Madden, 
C.J., a' Beckett and Hood, J J. 

Contract — Breach — Cause of action — quan- 
tum of damages, whether part of.] — The 
quantum of damages is no part of the cause 



23a 



CONTRACT OR AGREEMENT. 



240 



of action. Railtonv. Fleming, (1912) V.L.R., 
113; 33 A.L.T., 180 ; 18 A.L.R., 24. a' Bec- 
kett, Hodges and Oussen, J J. F C. 

XI. — Money Had and Received ; Money 
Paid. 

Rates — Payment without protest after due 
notice and demand — Rates not lawfully de- 
mandable — Money had and received.] — Money 
paid, without protest and after due notice 
and demand, for municipal rates not lawfully 
demandable is not recoverable as money 
had and received. Geelong Mechanics' In- 
stitute Incorporated v. Geelong, Mayor, &c. 
of, (1907) V.L.R., 580; 29 A.L.T., 33; 13 
A.L.R., 377. a'Beckett, J. (1907). 

Vendor and purchaser — Contract for sale 
of land — Deposit to be paid to G. " as agent 
for vendor " — Deposit to be paid over to 
vendor on acceptance of title — Contract re- 
scinded by mutual consent — Title not accepted 
— Whether vendor liable to pay deposit to 
purchaser — Money had and received — Stake- 
holder.] — See ante, ix. (a). Christie v. Robin- 
sort, 4 C.L.R., Pt. II., 1338 ; 13 A.L.R., 288. 

Supreme Court Act 1890 (No. 1142), sec. 85 
—Where cause of action arises — Agent out- 
side jurisdiction — Goods improperly sold by 
agent — Action by principal for money had 
and received — Place of payment — Rule that 
debtor must seek creditor.] — See ante, ix. (a) 
Gosman v. Onkerby, (1908) V.L.R., 298; 29 
A.L.T., 206 ; 14 A.L.R., ISO. 

Deposit receipt, security by way of — Con- 
tract to supply goods to Crown — Security for 
due performance of contract — Deposit re- 
ceipt in name of servant of the Crown pro- 
cured by contractor and delivered to such 
servant — Contractor's account with bank 
over-drawn — Contract duly performed — 
Whether amount of deposit receipt a debt due 
by Crown to contractor — Money had and 
received — Set-off of bank's claim against 
contractor, whether justifiable.] — See Banker 
and Customer. The King v. Brown, 
(1912) 14 C.L.R., 17; IS A.L.R., 111. 

Customs Act 1901 (No. 6), sec. 167 — Cus- 
toms Tariff 1908 (No. 7), sec. 7— Duties col- 
lected under proposed tariff — Proposed tariff 



different from tariff enacted — Payment with- 
out protest — Recovery back of money paid- 
Money exacted colore officii — Deposit of 
amount demanded under section 167 of the 
Customs Act 1901 — Whether the only remedy 
— " Dispute," what is.] — See Customs. Sar- 
good Bros. v. The Commonwealth, (1910) 11 
C.L.R., 258 ; 16 A.L.R., 483. 

Landlord and Tenant Act 1890 (No. 1108), 
sees. 81, 83 — Distress for rent— Proceeds of 
sale — Overplus in hands of landlord's agent — 
Claim by tenant against landlord — Money had 
and received — Jurisdiction of Court of Petty 
Sessions.] — See Landlord and Tenant. 
Rhodes v. Parrott, (1912) V.L.R., 333 ; 34 
A.L.T., 90 ; 18 A.L.R., 353. 

Mistake — Money paid under mistake of 
fact — Effect of payer's neglect or misconduct 
—Conditions precedent to right to recover 
such money.] — See Money Paid to Use of 
Another. Morton & Son v. Smith, 34 
A.L.T., 79; 18 A.L.R., 322. 

XII. — Legal Proceedings ; Jurisdiction. 

Supreme Court Act 1890 (No. 1142), sec. 
85 — Foreign procedure — Contract made in 
Queensland — Part performance by plaintiff in 
Victoria — Breach by defendant in Queens- 
land.] — See Practice and Pleading. J. E. 
Lindley <fc Co. v. Pratt, (1911) V.L.R., 444; 
33 A.L.T., 50 ; 17 A.L.R., 404. 

Supreme Court Act 1890 (No. 1142), sec. 
85 — Writ for service outside jurisdiction — 
Breach outside jurisdiction — Substantial per- 
formance within jurisdiction — " A cause of 
action which arose within the jurisdiction."] 
— See Practice and Pleading. Kelsey 
v. Caselberg, (1909) V.L.R., 347 ; 31 A.L.T., 
31 ; 15 A.L.R., 362. 

Supreme Court Act 1890 (No. 1142), sec. 
85 — Where cause of action arises — Agent out- 
side jurisdiction — Goods improperly sold by 
agent— Action by principal for money had 
and received — Place of payment — Rule that 
debtor must seek creditor.]— See ante, ix. (a). 
Gosman v. Ockerby, (1908) V.L.R., 298 ; 29 
A.L.T., 266 ; 14 A.L.R., 186. 

Contract for sale of goods — Breach in Vic- 
toria — Cause of action — County Court— -Juris- 



241 



CONVEYANCING ACT. 



242 



diction.] — See County Court. Rail/on v. 
Fleming, (1912) V.L.R., 113; 33 A.L.T., 
180 ; 18 A.L.R., 21. 

Contract — Sale of goods to be shipped 
abroad — C.i.i. contract — Place of delivery — 
County Court practice — Jurisdiction — Part of 
cause of action arising out of jurisdiction.] — 
See County Couut. H. Beecham v. R. W. 
Cameron cfc Co., (1910) V.L.R., 19; 31 
A.L.T., 100 ; 15 A.L.R., 598. 



CONTRIBUTORY. 

See COMPANY. 



CONTRIBUTORY NEGLIGENCE. 

See NEGLIGENCE. 



CONVERSION. 

Conversion — Sale of stolen goods — Recovery 
of value of goods from purchaser — Payment 
"by cheque — Proceeds afterwards coming to 
hands of owner of goods — Obligation to elect 
to affirm or disaffirm sale.] — See Sale op 
Goods. Creak v. James Moore & Sons Pro- 
prietary Ltd., (1912) 15 C.L.R., 426 ; 18 
A.L.R., 542. 



CONVEYANCING ACT. 

Conveyancing Act 1904 (No. 1953), sees. 
1, 3, 4 (6), (9) — Vendor and purchaser — 
Perusal fees, legality of contract for payment 
of by purchaser — Land under Transfer of 
Land Act — Transfer.] — Sub-section 6 of sec. 
tion 4 of the Conveyancing Act 1904 is effec- 
tive, notwithstanding sub-section 9, and it 
applies to all land sold by auction whether 
under the Transfer oj Land Act or under the 
general law. Re Stewart and Park's Con- 
tract, (1907) V.L.R., 31 ; 28 A.L.T., 133 ; 12 
A.L.R., 553. Hood, J. (1906). 



Conveyancing Act 1904 (No. 1953), sec. 4 
(6) — Whether applicable to land under Trans- 
fer of Land Act — " Conveyance," " transfer " 
— Contract of sale by auction — Stipulation 
that purchaser shall pay vendor's costs of 
perusal of conveyance.] — Section 4 (6) of the 
Conveyancing Act 1904 applies to sales by 
auction of land under the Transfer of Land 
Act 1890. Re Stewart and Park's Contract, 
(1907)V.L.R.,31; 28 A.L.T., 133 ; 12A.L.R., 
553, followed. Re Rogers and Rodd's Con- 
tract, (1907) V.L.R., 511; 29 A.L.T., 13 ; 13 
A.L.R., 312. Madden, C.J. 

Conveyancing Act 1904 (No. 1953), sec. 
4 (6), (9) — Interpretation — Repugnant clauses 
— Insertion of words to give effect to clear 
intention of Statute.] — Sub-section 9 of sec- 
tion 4 of the Conveyancing Act 1904 should 
be read as though it contained some words 
excluding sub-section 6 from its operation. 
Re Stewart and Park's Contract, (1907) 
V.L.R., 31 ; 28 A.L.T., 133 ; 12 A.L.R., 553. 
Hood, J. (1906). 

Conveyancing Act 1904 (No. 1953), sec. 4 
(6)— Auction Sales Act 1890 (No. 1065), sees. 
3, 29— Sale of land by Sheriff under fi. fa — 
Whether a "sale by auction" — Sheriff's 
costs of perusal of conveyance — Stipulation 
in contract of sale for payment by purchaser, 
legality of.] — A sale of land by auction con- 
ducted by the Sheriff under a writ of fi. fa. 
is, notwithstanding the provisions of the 
Auction Sales Act 1890 excusing the Sheriff 
from the responsibilities imposed by that Act, 
a " sale by auction " within the meaning of 
sec. 4 (6) of the Conveyancing Act 1904, and 
a clause in the contract of sale charging the 
purchaser with the payment of the Sheriff's 
costs of perusal of the conveyance is accord- 
ingly illegal. Re Rogers and Rodd's Con- 
tract, (1907) V.L.R., 511 ; 29 A.L.T., 13 ; 13 
A.L.R., 312. Madden, C.J. (1907). 

Conveyancing Act 1904 (No. 1953), sees. 
4 (6), (9), 10— Auction— Sale of land— Con- 
tract of sale — Costs of perusal and of obtaining 
execution of conveyance — Stipulation for pay- 
ment by purchaser — Waiver by signing con- 
tract — Procedure for declaration of illegality 
of stipulation — Existence of Contract.] — A 
clause in a contract of sale of land by auction 



243 



CONVICTION. 



244 



stating that section 4 (6) of the Conveyancing 
Act 1904 did not apply to the contract and 
stipulating for the payment by the purchaser 
to the vendor or his solicitor of the costs 
of perusal of the conveyance or of obtaining 
the execution thereof is illegal, and the pur- 
chaser does not waive the benefit of the 
provision in that section of the Act by signing 
a contract containing such a clause. Where 
a purchaser has signed a contract containing 
such a clause he may apply on summons 
under sec. 10 of the Conveyancing Act 1904 
for » declaration that the clause is illegal 
and void, as the illegal stipulation may be 
disregarded and the contract still subsists. 
In re Stewart and Park' 8 Contract, (1907) 
V.L.R., 31 ; 28 A.L.T., 133 ; 12 A.L.R., 553, 
and In re Rogers and Rodd's Contract, (1907) 
V.L.R., 511 ; 29 A.L.T., 13 ; 13 A.L.R., 312, 
followed. In re Crook's Contract, (1909) 
V.L.R., 12 ; 30 A.L.T., 10* ; 14 A.L.R., 698. 
a' Beckett, 3. (1908). 

Conveyancing Act 1904 (No. 1953), sec. 4 
(6) — Contract for sale of land — Sale by 
auction — Costs — Exclusive of perusal and 
obtaining execution of transfer — Purchaser 
to pay — Validity of condition.] — See Con- 
tract or Agreement. Col. 199. In re 
Sutton and the Federal Building Society's 
Contract, (1909) V.L.R., 473 ; 31 A.L.T., 75 ; 
15 A.L.R., 560. 

Conveyancing Act 1904 (No. 1953), sec. 6 — 
Transfer of Land Act 1890 (No. 1149), sec. 89 
—Vendor and Purchaser — Former unity of 
title and possession — Implied grant — Quasi — 
Easement — Rainwater flowing over surface — 
Adjoining owners — Natural servitude — Altera- 
tion of surface.] — Upon transfer by A. to B. 
of one of two allotments owned by A. sub- 
ject to the Transfer of Land Act and so 
situated that rainwater flowed from the 
allotment sold to B. upon the allotment 
retained by A., there being no grant expressed 
in the transfer or implied from the circum- 
stances attending the transfer of a servitude 
ne facias or a negative easement restraining 
A. from preventing the rainwater from flowing 
on to the allotment retained by him. Held, 
that such a servitude or easement was not 
passed by virtue of the general words in sec. 



6 of the Conveyancing Act 1904, and sec. 
89 of the Transfer of Land Act 1890. Nelson 
v. Walker, (1909) 10 C.L.R., 560 ; 16 A.L.R., 
285. H.C., Griffith, C.J., O'Connor, Isaacs 
and Higgins, 33. 

Statute of Frauds — Conveyancing Act 1904 
(No. 1593), sec. 75 — Charge — Parol declara- 
tion.] — See Statttte of Frauds. In the Will 
of Smith; Smith v. Smith, (1909) V.L.R., 
91 ; 30 A.L.T., 214 ; 15 A.L.R., 25. 



CONVICTION. 

Police Offences Act 1890 (No. 1126), sees. 
49, 51, 89 — Fine in default imprisonment— No 
time fixed for payment of fine.] — Where jus- 
tices do not in their order name a time for 
payment of a fine, the fine is to be treated 
as having been ordered to be paid imme- 
diately. Rogerson v. Phillips dk O' Hagan, 
(1906) V.L.R., 272; 27 A.L.T., 166; 12 
A.L.R., 147. a' Beckett, 3. (1906). 

Factories and Shops Act 1905 (No. 1975), 
sec. 162 (c), (d) — Factories and Shops Act 
1905 (No. 2), (No. 2008), sec. 9.]— Conviction 
against firm in firm name — Rules under the 
Justices Act 1890, rr. 18, 20 — Information, 
form of.] — In proceedings against a firm for 
an offence under the Act No. 1975, the 
conviction ought to be against the individual 
members of the firm, and a conviction in the 
firm name is bad. Quaere, whether in such 
proceedings the information should be 
against the individuals, and not against the 
firm. Bishop v. Chung Brothers, 4 C.L.R., 
1262 ; 13 A.L.R., 412. H.C., Griffith, C.J., 
Barton and Isaacs, 33., Higgins, 3., dissent- 
ing (1907). (See Act No. 2137, sec. 39]. 

Justices— Court of Petty Sessions— Convic- 
tion — Sentence — Remand for sentence after 
determination of guilt of accused — Justices 
Act 1890 (No. 1105), sec. 18.]— Where Jus- 
tices sitting in Petty Sessions are satisfied 
that the person charged before them is guilty 
of the alleged offence, but, in the absence 
of evidence as to prior convictions, are unable 
at once to fix the quantum of punishment, 
they may remand the prisoner, and at a 
future date, after hearing evidence as to 



245 



CORPORATION. 



246 



prior convictions, formally record the con- 
viction and pass sentence. Quaere, whether 
a Court of Petty Sessions has any jurisdiction 
to adjourn a case after pronouncing judg- 
ment. Mc Innes v. King ; De La Rue v. 
Everett-, (1909) V.L.R., 368 ; 31 A.L.T., 27 ; 
15 A.L.R., 356. Hodges, J. 

Informations heard together — Same defend- 
ant — Conviction, validity of.] — See Justices 
of the Peace. Joske v. Lubrano, (1906) 
V.L.R., 407; 28 A.L.T. 40. ; 12 A.L.R., 311. 

Marriage Act 1890 (No. 1166), sec. 43— 
Maintenance order — Direction to pay to Clerk 
of Petty Sessions at particular place — Whether 
clerk is a " person."] — See Maintenance and 
Maintenance Orders. Cohen v. Mac- 
Donough (or O'Donough), (1906) V.L.R., 
521 ; 28 A.L.T., 97 ; 12 A.L.R., 447. 

" Second offence," what is — Pure Pood Act 
1905 (No. 2010), sec. 36.] — See Criminal Law. 
O'Connor v. Bini, (1908) V.L.R., 567; 30 
A.L.T., 74 : 14 A.L.R., 537. 

Court of Petty Sessions — Jurisdiction — Dis- 
cretion as to sentence — Evidence of character 
— Prior convictions.] — See Justices of the 
Peace. O'Donnell v. Perkins ; Tognini v. 
Hargreaves, (1907) V.L.R., 537; 30 A.L.T., 
45 ; 14 A.L.R., 435. 

Appeal from Court of Petty Sessions — 
Conviction — General Sessions, powers of - 
amendment of— Justices Act 1890 (No. 1105). 
sees. 133, 185.] — See General Sessions. 
Li Wan Quai v. Christie, (1906) 3 C.L.R., 
1125 ; 12 A.L.R., 429. 

General Sessions — Appeal against convic- 
tion — Information — Whether Court may 
amend— Justices Act 1890 (No. 1105), sees. 
73 (4), 128 (7), 133.]— See Information. 
Delaney v. Napthine, 32 A.L.T. (Supplement) 
10; 16 A.L.R. (C.N.), 19. 

Justices Act 1890 (No. 1105), sec. 141— 
Information disclosing no offence — Convic- 
tion thereon — Amendment on return of order 
to review — Powers of Court — Defendant never 
charged with an offence.] — See Justices of 
the Peace. Knox v. Thomas Bible ; Knox 
v. J. L. Bible, (1907) V.L.R., 485 , 29 A.L.T., 
23 ; 13 A.L.R., 352. 



Justices Act 1890 (No. 1105), sec. 141— 
Return of order to review conviction — 
Amendment of information and conviction — 
Altering the offence charged in information 
to different offence.] — See Justices of the 
Peace. Knox v. Thomas Bible ; Knox v. 
J. L. Bible, (1907) V.L.R., 485; 29 A.L.T., 
23 ; 13 A.L.R., 352. 

Amendment — Order to review — Conviction 
under Police Offences Act 1890 (No. 1126), sec. 
40 (vi.) — No substantial disadvantage to 
defendant — Justices Act 1890 (No. 1105), sec. 
147.] — See Justices of the Peace. Hick- 
ling v. Skerritt, (1912) V.L.R., 322; 34 
A.L.T., 72 ; 18 A.L.R., 329. 



COPYRIGHT. 

Title to a play — Proprietary rights in — 
Injunction restraining infringement — Per- 
forming rights, assignment of — " Theatre," 
meaning of.] — See Trade Marks and Trade 
Names. Meynell v. Pearce, (1906) V.L.R., 
447 ; 27 A.L.T., 226 ; 12 A.L.R., 282. 



CO-RESPONDENT. 

See HUSBAND AND WIFE. 



CORPORATION. 

See also, Company. 

Corporation — Liability for criminal offences 
— Mens rea — Liability to presentment on 
charge of conspiracy — Capacity to conspire.] — 

A corporation cannot conspire nor (semble) 
can it be conspired with. It cannot, there- 
fore, be presented on » charge of conspiracy 
to defraud, nor (semble) can an individual 
be presented on a charge of conspiracy with 
a corporation to defraud. Semble, the 
criminal liability of a corporation for the 
criminal acts of its servants -does not at 
common law extend beyond cases in which 
the criminal acts (a) create a public nuisance 
or (6) constitute a criminal libel. B. v. Kel- 
low, (1912) V.L.R., 162; 33 A.L.T., 203; 
18 A.L.R., 170. Cussen, J 



247 



COSTS. 



248 



Commonwealth of Australia Constitution 
<63 & 64 Viet. c. 12), sec. 51 (xx.)— Power to 
make laws with respect to " foreign corpora- 
tions and trading and financial corporations 
formed within the limits of the Common- 
wealth " — Limits of power.] — See Common- 
wealth of Australia Constitution. Hud- 
dart Parker & Co. Proprietary Ltd. v. Moore- 
head ; Appleton v. Moorehead, (1909) 8 
C.L.R., 330 ; 15 A.L.R., 241. 

Commonwealth of Australia Constitution 
(63 & 64 Vict. c. 12), sec. 51 (1) (xx.)— Inter- 
ference with internal trade and commerce — 
Power to make laws with respect to " foreign 
corporations and trading and financial cor- 
porations formed within the limits of the 
Commonwealth " — Limits of power — Con- 
trol of corporations, their status, capacity and 
contracts.] — See Commonwealth op Aus- 
tralia Constitution. Huddart Parker & 
Go. Proprietary Ltd. v. Moorehead ; Appleton 
v. Moorehead, (1909) 8 C.L.R., 330; 15 
A.L.R., 241. 

Administration cum testamento annexo — 
Bight of corporation aggregate, a beneficiary 
to administer — Grant to Syndic of corporation 
aggregate.] — See Will. In the Will oj 
Basse, (1909) V.L.R., 313; 31 A.L.T., 17; 
15 A.L.R., 302. Madden, C.J. 



CORPUS. 

See TENANT FOR LIFE AND REMAIN- 
DERMAN ; TRUSTS AND TRUS- 
TEES ; WILL. 



CORROBORATION. 

See EVIDENCE. 



COSTS. 

COL. 

I. Jurisdiction . . . . . . 249 

(a) Of High Court and of Supreme 

Court 249 

(1) To Hear Appeals as to Costs 249 

(2) To Award Costs . . . . 250 

(b) Of Inferior Courts .. . . 251 
II. — Divorce . . . . . . . . 254 



COL. 

(a) Generally . . ■ • ■ • 254 
(6) Under Section 111 of the Mar- 
riage Act 1890 255 

III. — Discretion of Court, How 

Exercised . . . . . . 258 

(a) Public Officers 258 

(6) Where Trial with Jury . . .. 258 

(e) Defendants in Same Interest or 

Joining in Defence . . . . 259 

(d) Set-off 260 

(e) Special Scales of Costs .. .. 260 
(/) Omission to Deal with Costs at 

Hearing . . . . . . . . 262 

(g) Applications for Final Judgment 262 

..263 



In- 



264 
266 
266 
267 
267 
268 



(h) Contested Wills . . 
(i) Administration of Estates 
terpretation of Wills, &c. 
(/) Conveyancing 
(k) In Patent Matters 
(I) Other Cases 
IV. — Bills op Costs 
V. Taxation 

(a) HIGH COURT AND SUPREME COURT 268 

(1) Review of Taxation .. 268 

(2) Costs of Order to Review 

Heard by High Court . . 269 

(3) Costs of Appeal from County 

Court 269 

(4) Instructions for Brief . . 270 

(5) Drawing Documents . . 270 

(6) Copies 270 

(7) Attendances ; Consultations 272 

(8) Counsel's Fees .. . . 273 

(9) Witnesses 274 

(10) Procuring Evidence; Cause 
■not Brought on for Trial ; 
No Evidence Given as to 
Particular Defence . . 275 

(11) Unusual Expenses .. 277 

(12) Costs Increased by Miscon- 
duct or Negligence 

(13) Conveyancing 

(14) Term Fee . . 

(15) Court Fees . . 

(6) INFERIOR COURTS 

(1) County Court 

(a) Scale of Costs 

(i. ) Where Scale in the 

Rules Applicable 281 
(ii.) In Other Cases . . 282 



279 
279 
280 
280 
281 
281 
281 



249 



COSTS. 



250 



(6) Instructions to Sue &o. 283 

(c) Perusing ; Attendance 

on Client . . . . 284 

(d) Attending Court . . 285 
(c) Counsel's Fees Draw- 
ing Brief, &c. . . 285 

(/) Costs of Warrants . . 286 

(g) Witnesses' Expenses . . 287 
(2) Court of Insolvency . . 287 

(a) Authority of Taxing 

Officer . . . . 287 

(6) Proceedings Relating to 
Deeds of Assignment : 
Scale of Costs . . 287 

(c) Trustee ; Costs of In- 

structing Solicitor . . 288 

(d) Partnership Matters . . 289 

(e) Drawing ; Engrossing. . 289 
(/) Auctioneer's Charges . . 290 

VI. Security for Costs . . . . 291 

vii. agreements for remuneration 

of Solicitors . . . . 292 

VIII. Recovery of Costs . . . . 293 

(a) Attachment oj the Person . . 293 

(6) Solicitor's Lien . . . . . . 293 

(r) Payment of Costs a Condition . . 293 

(d) Priority of Payment . . . . 294 

(e) Indemnity . . . . . . 295 

(/) Other Points 296 

I. — Juris diction. 

(a) Of High Court and of Su/ireme Court. 

See, also, Divorce, Sub-heading II. 

(1) To Hear Appeals as to Costs. 

Appeal — Costs — Order directing trustee to 
pay costs— Supreme Court Act 1890 (No. 1142), 
sec. 60.] — An appeal lies from an order 
directing a trustee to pay costs in an action 
for administration, because it is » settled 
rule that such an order cannot be made unless 
the occasion of the suit has arisen from 
something in the nature of the trustee's own 
misconduct. It is also settled that the ques- 
tion, whether a trustee has been guilty of 
such misconduct as to justify the Court in 
ordering him to pay costs, is appealable. 
Amos v. Fraser, 4 C.L.R., Pt. I., 78; 12 
A.L.R., 481. H.C., Griffith, C.J., Barton 
and O'Connor, JJ. (1906). 



Trade Mark— Practice— Costs— Award of 
costs by Law Officer— Discretion— Appeal to 
High Court— Trade Marks Act 1905 (No. 20 
Of 1905), sees. 95, 96.]— The High Court has 
jurisdiction to entertain an appeal as to the 
costs awarded by the Law Officer on an appeal 
to him from the Registrar of Trade Marks. 
But on such an appeal the Court will not 
over-rule his order unless there has been a 
disregard of principle or a misapprehension 
of facts. In re Gilbert ; Gilbert v. Hudle- 
slone, 28 Ch. D., 549, applied. Alexander 
Ferguson & Co. v. Daniel Crawford <fr Co., 
(1909) 10 C.L.R., 207. H.C., Griffith, C.J., 
O'Connor and Isaacs, J J. 

Appeal — Exercise of discretion as to costs 
— Whether High Court will interfere where 
there is no other foundation for appeal.] — 
It would require a case of very extreme 
circumstances to justify the High Court in 
reviewing the discretion of the Supreme Court 
on a question of costs, where there is no 
other foundation for the appeal. Jenkins v. 
Lanfranchi, 10 C.L.R., 595 ; 16 A.L.R., 275. 
H.C., Griffith, C.J., O'Connor, Isaacs and 
Higgins, JJ. (1910). 

Appeal — County Court — Action struck out 
for want of jurisdiction — Jurisdiction to deal 
with defendant's application for costs declined 
by Judge — Whether appeal lies — County Court 
Act 1890 (No. 1078), sec. 133.]— An action 
having been brought in a County Court 
which the Court had no jurisdiction to try 
the Judge ordered the case to be struck out 
and refused to consider the defendant's 
application for costs on the ground that he 
had no jurisdiction to do so. Held, that an . 
appeal lay from such refusal. The King v. 
Beecham ; Ex parte Cameron, (1910) V.L.R., 
204 ; 31 A.L.T., 183 ; 16 A.L.R., 173. F.C., 
Madden, C.J. and a' Beckett, J. (Cussen, J., 
doubting). 

(2) To Award Costs. 

Service and Execution of Process Act 1901 
(No. 11 of 1901), sec. 18 — Execution of war- 
rant issued in another State — Order of Justice 
of Peace directing return of accused — Review 
of order by Judge— Costs, jurisdiction to 
award.] — Upon review of the decision of a 
justice of the peace ordering an accused 



251 



COSTS. 



252 



person to be returned to the State in which 
the warrant for his apprehension was issued 
a Judge has no j nrisdiction to award costs. 
In re Georye, (1909) V.L.R., 15; 30 A.L.T., 
141 ; 15 A.L.R., 27. a' Beckett, J. 

Costs — Probate — Will — Caveat — With- 
drawal before motion — Costs against caveator.] 
— Where a caveat against a grant of probate 
has been withdrawn prior to the motion for 
probate occasioned by the lodging of such 
caveat, the Court has no power to award 
costs against the caveator. In re Downey, 

5 V.L.R. (I.P. & M.), 72, distinguished. In 
the Will of Johnson, (1909) V.L.R., 324; 31 
A.L.T., 2 ; 15 A.L.R., 304. Madden, C.J. 

(b) Of Inferior Courts. 

County Court Act 1890 (No. 1078), sees. 
48, 94 — No jurisdiction to try action — Costs, 
whether Court may award.] — The power 
conferred by sec. 94 of the County Court Act 
1890 to order a case to be struck out for 
want of jurisdiction, and to award costs 
extends to all cases in which the Court has 
no jurisdiction, and is not limited to those 
cases in which, under sec. 48 the want of 
jurisdiction might be cured by consent of 
parties. Harrison, San Miguel & Co. v. 
Maddern, (1905) V.L.R., 400; 26 A.L.T., 
215 ; 11 A.L.R., 178, over-ruled. The King v. 
Beecham ; Ex parte Cameron, (1910) V.L.R., 
204 ; 31 A.L.T., 183 ; 16 A.L.R., 173. 
F.C., Madden, C.J., a' Beckett and Cussen, 
JJ. 

County Court Act 1890 (No. 1078), sec. 45— 
Costs — Amount recovered not exceeding ten 
. pounds — Injunction a material part of the 
action — Professional costs.] — Scmble, the pro- 
vision in sec. 45 of the County Court Act 1890 
as to professional costs where the amount 
recovered does not exceed £10, does not apply 
to cases where an injunction is a material 
part of the relief sought. Harrison San 
Miguel Proprietary Ltd. v. Alfred Lawrence 

6 Co., 1912) V.L.R., 367 j 34 A.L.T., 88 ; 
18 A.L.R., 394. Madden, C. J. (1912). 

County Court Act 1890 (No. 1078), sees. 
45, 64 — Costs — Proposed action — Claims not 
not exceeding £10— Certificate for costs — 
Plaintiff's costs of employing an attorney — 



Time for making application.] — An applica- 
tion for a certificate that a person who intends 
to issue a special summons under sec. 64 of 
the County Court Act 1890 shall be allowed 
the costs of employing an attorney in the 
proposed action cannot be made ' under sec- 
tion 45 of that Act. Semble, when the plain- 
tiff in an action commenced by a, special 
summons under sec. 64 is about to sign final 
judgment in default of notice to defend 
for an amount not exceeding £10 he should 
apply to the Judge sitting in Chambers 
to be allowed costs under Scale A. and for a 
direction that the Registrar so fix them. 
Clarazite Manufacturing Co. Ltd. v. Armitage 
(No. 1), 30 A.L.T. (Supplement), 21; 15 
A.L.R. (C.N.), 6. Judge Eagleson (1909). 



County Court Act 1890 (No. 1078), sees. 45, 
62, 64— County Court Rules 1891, r. 200— 
Costs — Action — Claim not exceeding £10 — 
Payment into Court by Dependant of debt and 
costs — Plaintiff's costs of employing attorney 
— Time for making application.] — Where the 
defendant in an action commenced by 
special summons under sec. 64 of the County 
Court Act 1890 duly pays into Court the 
amount of the debt and costs indorsed on 
the summons, and such debt does not exceed 
£10, a Judge of the County Court has no 
jurisdiction to allow the plaintiff the costs 
of employing an attorney — such costs not 
being mentioned in the summons. The 
plaintiff to be entitled to the costs of employ- 
ing an attorney should have endorsed them 
on the summons at the time of issuing and 
before service. Clarazite Manufacturing Co 
Ltd. v. Armitage ( No. 1), 30 A.L.T. (Supple 
ment), 21 ; 15 A.L.R. (C.N.), 6, disapproved 
Clarazite Manufacturing Co. Ltd. v. Armi 
tage (No. 2), 30 A.L.T. (Supplement), 22 
15 A.L.R. (C.N.), 6. Judge Chomley (1909) 

County Court Act 1890 (No. 1078), sees. 45, 
64 — Costs — Proposed action — Claim not 
exceeding £10 — Plaintiff's costs of employing 
attorney — -Time for making application that 
costs be allowed.] — An order may be made 
under sec. 45 of the County Court Act 1890 
prior to the issue of a special summons 
under sec. 64 that the Registrar on issuing 
such summons shall indorse thereon the 



253 



COSTS. 



254 



plaintiff's costs of employing an attorney. 
Clarazite Manufacturing Co. Ltd. v. Armi- 
tage (No. 1), 30 A.L.T. (Supplement), 21 ; 

15 A.L.R. (C.N.), 6, not followed. Lee v. 
Cunningham, 32 A.L.T. (Supplement), 4 ; 

16 A.L.R. (C.N.), 1. Judge Box (1910). 

Comity Court Act 1890 (No. 1078), sec. 62— 
Payment into Court — Costs fixed by Registrar 
— Whether plaintiff may be allowed addi- 
tional costs.] — The fixation of costs by the 
Registrar under sec. 62 of the County Court 
Act 1890 is final and conclusive for all 
purposes, and there is no power to allow 
the plaintiff any costs beyond the amount 
so fixed. Armstrong v. Cuming Smith & 
Go. Proprietary Ltd., 29 A.L.T. (Supplement), 

17 ; 13 A.L.R. (C.N.), 34. Judge Chomley 
(1907). 

Imprisonment of Fraudulent Debtors Act 
1890 (No. 1100), sec. 15 — County Court, 
Rules of 1891, interpretation clause, r. 354 — 
Schedule of Scale of Costs, Item 2 — Judgment 
summons — Judgment under £10 — Practi- 
tioners' costs — Attending at hearing — In- 
structions.] — On granting leave to withdraw 
a judgment summons issued on a judgment 
for less than £10, a Judge of the County 
Court may order payment by the judgment 
creditor of the judgment debtor's practi- 
tioner's costs for instructions from his client ; 
but he may not allow the costs of the practi- 
tioner for attending on such summons. 
Coppel v. Anderson, 28 A.L.T. (Supple- 
ment), 8 : 12 A.L.R. (C.N.), 22. Judge Box 
(1906). • 

County Court Act 1890 (No. 1078), sees. 
68, 70, 71 — Discontinuance of action — Costs 
not paid — Subsequent action for same cause 
of action — Stay of proceedings until costs 
paid — Jurisdiction.] — A Judge of a County 
Court has power to stay an action until pay- 
ment by the plaintiff of the costs ordered 
to be paid by him in a prior action for the 
same cause of action against the same 
defendant. Leeder v. Ballarat East, Mayor, 
due, of, 29 A.L.T. (Supplement), 6; 13 
A.L.R. (C.N.), 25. Judge Eagleson (1907). 

County Court Act 1890 (No. 1078), sec. 47— 
Costs of chamber application — Jurisdiction of 



Judge to fix.] — A Judge of a County Court 
has jurisdiction under sec. 47 of the County 
Court Act 1890 to fix the amount of the 
costs of an application before him in Cham- 
bers. Leeder v. Ballarat East, Mayor, <fcc, 
of, 29 A.L.T. (Supplement), ; 13 A.L.R. 
(C.N.), 25. Judge Eagleson (1907). 

Notice of intention to present a petition for 
the winding up of a mining company — Service 
of notice — Petition not presented — Power of 
Court to award costs — Companies Act 1890 
(No. 1074), sec. 252— Mines Act 1890 (No. 
1120), sec. 179.]— Courts of Mines have 
jurisdiction to award costs where notice 
of intention to present a petition on a certain 
day for the winding up of a mining company 
has been given, although no such petition is 
presented. Re The Mount Lyell Consols 
Mining Corporation, No Liability (No. 1), 
30 A.L.T. (Supplement), 13 ; 14 A.L.R. 
(C.N.), 40. Judge Emileson (1908). 

II. — Divorce. 

(a) Generally. 

Marriage Act 1890 (No. 1166), sec. Ill- 
Divorce — Petition by husband — No substance 
in wife's case — Counter-charges without 
reasonable basis — Wife's costs, how to be 
borne.] — In a suit for dissolution of marriage 
a wife will not be allowed her costs unless 
her case has substance and the costs have been 
reasonably incurred ; and if charges are 
presented which have no reasonable basis, 
the costs are treated as costs which are in- 
curred at the risk of those who have incurred 
them Kay v. Kay, (1904) P., 382, at p. 
397, followed and applied. Garrick v. Gar- 
rick ; Sutton, co-respondent, (1908) V.L.R., 
420 ; 30 A.L.T., 21 ; 14 A.L.R., 312. 
Hood, J. 

Marriage Act 1890 (No. 1166), sec. Ill- 
Wife's costs, how to be borne — Petition by 
husband on ground of adultery — Wife's 
denial withdrawn — Unfounded counter- 
charges against husband.] — In answer to 
a husband's petition for dissolution of mar- 
riage on the ground of his wife's adultery, 
the wife pleaded a denial of the adultery 
and set up counter-charges of cruelty, con- 
nivance, and misconduct. The denial of the 



255 



COSTS. 



256 



adultery was withdrawn shortly before 
the hearing of the petition, and at the hearing 
the Court found that in the face of the facts 
the counter-charges ought never to have been 
made, and certainly ought never to have 
been carried into Court. Held, that the wife's 
costs be not allowed, and that the £20 paid 
into Court by the petitioner under sec. Ill 
of the Marriage Act 1890 be returned to 
him or hit proctor. Garrick v. Qarrick ; 
Sutton, co-respondent, (1909) V.L.R., 420; 
30 A.L.T., 21 ; 14 A.L.R., 312. Hood, J. 
(1908). 

(6) Under Section 111 of the Marriage Act 
1890. 

Marriage Act 1890 (No. 1166), sec. Ill— 
Divorce — Money for investigation of Wife's 
case — ■ Merits of her case — • Demerits of 
Husband's Case.] — A wife who is respondent 
in a, suit for dissolution of marriage on the 
ground of adultery, is not entitled under 
sec. Ill of the Marriage Act 1890 to an order 
for the payment into Court by her husband, 
the petitioner, of a sum of money merely for 
the purpose of enabling her to have investi- 
gated by her proctor a countercharge of 
adultery which she intends to make against 
him in the suit. Rackham v. Rackham ; 
Stokes {co-respondent), (1913) V.L.R., 120; 
34 A.L.T., 141 ; 18 A.L.R., 581. Hodges, J. 
(1912). 

Divorce — Practice — Application for investi- 
gation money — Time for making — Answer 
already filed by wife respondent — Marriage 
Act 1890 (No. 1166), sec. 111.]— An order, 
that the husband, petitioner, shall pay into 
Court a sum of money for the investigation 
of the respondent's case, may be made after 
the respondent has filed her answer ; but the 
application should be made promptly and 
before any further steps are taken. Good- 
man v. Goodman, (1906) V.L.R., 671; 28 
A.L.T., 122 ; 12 A.L.R., 548. Hodges, J. 

Marriage Act 1890 (No. 1166), sec. Ill— 
Costs of preliminary investigation — Applica- 
tion after investigation made— Whether too 
late.] — An application by the respondent 
for the costs of having the merits of her case 
investigated is too late if made after the 
work of investigation has been done. Wilson 



v. Wilson, 17 A.L.T., 154, and Vogt v. 
Vogt, 25 V.L.R., 283; 21 A.L.T,, 109; 5 
A.L.R. (C.N.), 77, followed. Kidd v. Kidd, 
(1908) V.L.R., 409; 30 A.L.T., 29; 14 
A.L.R., 274. Hood, J. 

Marriage Act 1890 (No. 1166), s. Ill— 
Costs of investigating case of wife — Time for 
making application — Petition by wife — Re- 
spondent's answer filed — Case already investi- 
gated.] — An application, in a suit in which 
the wife is petitioner, for an order under sec. 
Ill of the Marriage Act 1890 for payment 
into Court of a sum of money sufficient to 
enable her to have the merits of her case 
investigated is not too late, although made 
after the respondent has filed his answer. 
But no order will be made if, prior to such 
application, an investigation of the merits 
of the petitioner's case has been made by her 
proctor. Ruddell v. RuddeU, (1911) V.L.R., 
277; 33 A.L.T., 10; 17 A.L.R., 276. 
Gussen, J. 

Marriage Act 1890 (No. 1166), sec. Ill- 
Wife's costs — Sum Used by Taxing Master 
on proctor's certificate — Order to pay sum so 
fixed into Court — Jurisdiction — No prelimin- 
ary order as to investigation of merits of case.] 
— Where the wife's proctor, no order having 
being obtained with reference to having the 
merits of her case investigated, filed a certifi- 
cate that she had a good cause of action on 
the merits, and the Taxing Master thereupon 
fixed the sum which was to be paid into 
Court, an order was made that the husband 
should forthwith pay such sum into Court. 
Zanoni v. Zanoni, 24 V.L.R., 940 ; 5 A.L.R., 
206, and Rickerby v. Rickerby, 25 A.L.T., 
95 ; 10 A.L.R., 30, followed. Farrer v. 
Fnrrer, (1907) V.L.R., 382 ; 28 A.L.T., 221 ; 
13 A.L.R., 236. Cussen, J. 

Marriage Act 1890 (No. 1166), sees. Ill, 
118 — Divorce — Wife's costs — No preliminary 
order as to investigation — Suit by husband 
in forma pauperis — Payment into Court 
of Wife's costs — Jurisdiction to order.] — Un- 
der sec. Ill of the Marriage Act 1890 an 
order may be made for payment into Court 
by a husband of the sum fixed by the Taxing 
Master as the amount of the wife's costs, 



257 



COSTS. 



258 



although no order has been obtained for 
payment by him of money to enable her to 
have her case investigated. Under that 
section a husband who has been granted leave 
under sec. 118 to sue in jorma pauperis may 
be ordered to pay into Court the sum so fixed. 
Howard v. Howard, (1913) V.L.R., 47; 
34 A.L.T., 116 ; 18 A.L.R., 528. a' Beckett, J. 

Marriage Act 1890 (No. 1166), sec. Ill- 
Wife respondent not appearing at trial — Order 
that £20 paid into Court be paid out to wife's 
proctor. 1 — Where under sec. Ill of the Mar- 
riage Act 1890 the sum of £20 had been paid 
into Court, but the wife respondent did not 
appear at the trial, the money was ordered 
to be paid out to the wife's proctor on account 
of his costs for preparing her defence. Mont- 
gomery vT Montgomery and Andrews, 12 
A.L.R. (C.N.), 1. Madden, O.J. (1906). 

Marriage Act 1890 (No. 1166), sec. Ill— 
Order for payment into Court of wife's costs — 
Failure to obey order — Stay of proceedings — 
Jurisdiction.] — Whether an order will be made 
staying all proceedings in a, suit for dissolu- 
tion of marriage until the husband who is 
petitioner therein shall have paid into Court 
the sum so fixed for the wife's costs is a matter 
of discretion. Where proceedings in a, suit 
by a husband against his wife for dissolution 
of marriage had been stayed until payment 
into Court of the respondent's costs under see. 
Ill, and the petitioner subsequently in- 
stituted in jorma pauperis another suit on 
the same ground, the petitioner was ordered 
in the latter suit to pay into Court the sum of 
£20 for the respondent's costs, but, in view 
of the circumstances of the case, the hearing 
of this suit was not to be stayed pending 
payment into Court under this order or by 
reason of the order made in the previous suit. 
Howard v. Howard, (1913) V.L.R., 47 ; 34 
A.L.T., 116 ; 18 A.L.R., 528. a' Beckett, J. 
(1912). 

No appearance by respondent — Service of 
summons by filing — Divorce Rules 1907, rr. 
36, 38, 39, 59— Marriage Act 1890 (No. 1166), 
sec. 111.] — Where the husband respondent 
has not appeared in the suit, a summons to 
obtain an order that he pay into Court the 
sum fixed by the taxing officer for his 



wife's oosts may be served by filing with the 
Prothonotary. Farrer v. Farrer, (1907) 
V.L.R., 382; 28 A.L.T., 221 ; 13 A.L.R., 
236. Cussen, J. (1907). 

HI- DISCRETION OF COURT, HOW EXER- 
CISED. 

(a) Public Officers. 

Licences Reduction Board — Procedure on 
deprivation of victualler's licences — Mistaken 
refusal to hear owners and occupiers of other 
licensed premises who are interested — Erron- 
eous belief in absence of jurisdiction to hear 
them — Prohibition — Costs.] — Nothwithstand - 
ing the existence of a fund under the control 
of the Licences Reduction Board out of which 
the costs of all parties in The King v. Licences 
Reduction Board ; Ex parte Martin and God- 
frey, (1908) V.L.R., 721 ; 30 A.L.T., 133 ; 
14 A.L.R., 675, had been ordered to be paid, 
where the error of the Board was in holding 
that they had no power to permit the relator 
to intervene, the order nisi for a writ of pro- 
hibition was made absolute, without costs. 
The King v. Licences Reduction Board ; 
Ex parte Miller, (1909) V.L.R., 327 ; 30 
A.L.T., 223 ; 15 A.L.R., 282. F.C., Hodges, 
and Hood, J J. (a' Beckett, J., dissenting). 

Patent — Appeal from Commissioner — Right 
of Commissioner when unsuccessful to his 
costs— Patents Act 1903 (No. 21 of 1903), sec. 
111.] — Where the Commissioner of Patents 
is represented upon the hearing of an appeal 
from his decision and the appeal succeeds, the 
costs of the Commissioner are in the discre- 
tion of the Court, and ordinarily the successful 
appellant will not be ordered to pay them. 
Re McKay's Application, (1909) V.L.R., 
423 ; ^1 A.L.T., 63 ; 15 A.L.R., 445. 
a' Beckett, Hodges and Hood, J J. 

Trustee in insolvency — Certificate of dis- 
charge — Compulsory application — Power of 
trustee — Costs.] — See Insolvency. In re 
McConnell, 29 A.L.T. (Supplement), 26 ; 
14 A.L.R. (C.N.), 19. Judge Moule (1908). 

(6) Where Trial with Jury. 

Order LXV., r. 1— Costs— Trial by a jury- 
Wrongful dismissal— One farthing damages— 
" Good cause."] — In an action for wrongful 

9 



259 



COSTS. 



260 



dismissal, the jury awarded the plaintiff 
a farthing damages. The Judge was of 
opinion that the verdict was attributable 
to disapproval ofjthe plaintiff's conduct and 
disbelief of his denials on the part of some at 
least of the jury, and His Honor also dis- 
approved of such conduct, and disbelieved 
such denials. Held, that there was " good 
cause " for depriving the plaintiff of his 
costs. Galsworthy v. Reid, 32 A.L.T., 189 j 
17 A.L.R., 144. a'Beekett, J. (1911). 

Order LXV., r. 1 (Rules of 1906)— Costs- 
Trial by jury — " Event," meaning of — 
Several causes of action — Taxation.] — Where 
in an action for several causes of action tried 
before a jury the plaintiff succeeds on some 
causes of action, and fails on others, the 
result of each cause of action is an " event " 
within the meaning of Order LXV., r. 1, and, 
unless there is good cause shown, judgment 
should be given for the plaintiff for the 
amount recovered by him with costs on the 
causes of action on which he succeeded, and 
for the defendant for the costs of the causes 
of action on which he has succeeded, and 
the costs of each cause of action should be 
taxed as if it were a separate action. O'/SwZ- 
livan v. Morton, (1911) V.L.R., 249 ; 32 A.L.T., 
196 ; 17 A.L.R., 201. F.C., Madden, C.J., 
Hodges and Hood, J J. (1911). [Leave to 
appeal refused], (1911) 12 C.L.R., 390.] 

Order XXHI., r. 5a— Order XXXVL, r. 7 (c) 
— Jury fees — Action — Trial with a jury — 
Memorandum of close of pleadings — State- 
ment therein of number of jurors — Payment 
of jury fees on entering case for trial.] — See 
Practice and Pleading. Moss v. Donnelly, 
(1909) V.L.R., 443 ; 31 A.L.T., 49 ; 15 
A.L.R., 516. 

(c) Defendants in Same Interest or Joining 
in Defence. 

Order LXV. — Costs of two parties appearing 
in same interest.] — For observations on the 
allowance of costs to two parties appearing 
in the same interest, see In re Ilobson ; 
Hobson v. Sharp, (1907) V.L.R., 724 ; 29 
A.L.T., 125 ; 13 A.L.R., 703. Gussen, J. 

Costs — Two defendants joining in one 
defence — One succeeding, the other failing — 



Order that each abide bis own costs.] — See 
Crout v. Beissel, (1909) V.L.R., 207; 30 
A.L.T., 185 ; 15 A.L.R., 143. a'Beekett, J. 

(d) Set-off. 

Order LXV., r. 14 (Rules of 1906)— Several 
causes of action — Set-off of costs recovered 
by defendant against damages and costs recov- 
ered by plaintiff — Complication of evidence 
and argument on several causes of action.] — 
Where in an action for several causes of 
action which crossed one another in evidence 
and argument, the plaintiff obtained judg- 
ment for damages on one cause of action 
with the costs thereof, and the defendant 
obtained judgment for costs on the other 
causes of action, Held, that the costs of the 
defendant in respect of the causes* of action 
on which he succeeded should be set off 
against the damages and costs in respect of 
the cause of action on which the plaintiff 
succeeded. O'S'Mivan v. Morton, (1911) 
V.L.R., 249 ; 32 A.L.T., 19S ; 17 A.L.R., 201. 
F.C., Madden, G.J., Hodges and Hood, J J. 
(1911). [Leave to appeal refused, (1911) 
12C.L.R., 390]. 

(e) Special Scales of Costs. 

Patents Act 1903 (No. 21 of 1903) (Com- 
monwealth), ss. 14,58, 111 — Appeal against 
decision of Commissioner of Patents — Costs 
of opposition to grant of patent before Com- 
missioner.] — The costs of a successful appel- 
lant's opposition before the Commissioner 
were allowed on the lower Supreme Court 
scale. Moore v. Phillips, 4 C.L.R., 1411 
13 A.L.R., 424. H.C., Griffith, C.J., Barton, 
Isaacs and Higgins J J. (1907). 

Taxation — Scale of costs — Action fot re- 
covery of land — No monetary claim — Order 
LXV., r. 29 (a), Appendix N. (Rules of 1904), 
whether applicable.] — Order LXV., r. 29 (a) 
(Rules of 1904) applies only to cases where a 
plaintiff is seeking to recover a sum of money, 
which sum does not exceed £500, and does 
not apply to an action for the recovery of 
land. GHffm v. MiUane, (1907) V.L.R., 46; 
28 A.L.T., 97 ; 12 A.L.R., 494. Hood, J. 
(1906). 



261 



COSTS. 



262 



Order LXV., r. 29 (a) (Rules of 1906)— 
Special scale of costs in Appendix N. — Appli- 
cation that costs be taxed on ordinary scale — 
When application to be made — Discretion of 
Judge. — An application by a, successful party 
that his costs may be allowed on the ordinary 
scale, notwithstanding that the notice under 
Order LXV., i. 29 (a) has been given, should 
be made at the conclusion of the trial to the 
Judge who has tried the action. Such an 
application will not be granted unless definite 
special reasons are shown why the scale of 
costs in Appendix N. should be departed 
from. Bloomficld v. Dunlop Tyre Co. Ltd., 
28 V.L.R., 72 ; 23 A.L.T., 227 ; 8 A.L.R., 
103, followed. Chomley v. Watson, (1907) 
V.L.R., 502; 29 A.L.T., 46; 13 A.L.R., 
S80. Madden, C.J. (1907). 

Order LXV., r. 29 (a)— Costs— Special 
scale in Appendix N. — Notice of intention to 
proceed under, given by defendant on entry 
of appearance — Judgment for plaintiff — Ap- 
plication by plaintiff that the Judge should 
" otherwise order " as to scale of costs — 
When such application should be made.] — 
When either party to an action has given 
notice under Order LXV. r. 29 (a) that he 
intends to proceed under the special scale of 
costs in Appendix N., an application by the 
other party for an order that the costs of 
the action shall not be taxed under that 
scale must be made at the trial and before 
judgment. Leviston v. Douglas, (1912) V.L.R., 
318; 34 A.L.T., 15; 18 A.L.R., 309. 
Hodges, J. 

Order LXV., r. 12— Costs— Action of tort 
— Judgment for damages under £50 and in- 
junction — Supreme Court costs — " Sum re- 
covered " — Impossibility of valuing injunc- 
tion.] — Order LXV, rule 12, of the Rules of 
the Supreme Court 1906 does not apply to 
an action where the plaintiff, in addition to 
damages, obtains judgment for an injunction 
which is a substantial part of his action. 
The principle determined in Doherty v. 
Thompson, 94 L.T., 626, and Keates v. Wood- 
ward, (1902) 1 K.B., 532, followed. An in- 
junction is not, nor can its value be estimated 
so as to make it a " sum recovered." Har- 
rison San Miguel Proprietary Ltd. v. Alfred 



Lawrence & Co., (1912) V.L.R., 367; 34 
A.L.T., 88; 18 A.L.R., 394. Madden, C.J. 

(/) Omission to Deal with Costs at Hearing. 

Order XXXI., r. 3* (Rules of 1900)— Inter- 
rogatories — Costs — No application as to at 
trial — Application for after trial.] — Where a 
party had omitted to apply at the trial for 
the costs of interrogatories, an order was made 
allowing such costs after the lapse of two years 
from the trial, no special circumstances being 
shown why the order should not be made. 
General Finance &c. Co. v. National Trus- 
tees &c. Co., 12 A.L.R. (C.N.), 1. a' Beekett, 
J. (1906). 

Commission to examine witnesses — Costs 
reserved until trial — Judgment for general 
costs of action — No mention at hearing of 
costs of commission — Jurisdiction to amend 
—Order XXVni., r. 11—" Accidental slip 
or omission " in judgment, correction of 
after appeal — Special circumstances — Compli- 
cated issues and lengthy trial.] — See Pbaotice 
and Pleading, Order XXVIII. Melbourne 
Harbour Trust Commissioners v. Cuming 
Smith & Co. Proprietary Ltd., (1906) V.L.R. 
192; 27 A.L.T., 186 ; 12 A.L.R., 142. 

County Court — Costs — Taxation — Con- 
ference with counsel — No application made at 
hearing — Discretion of Registrar — County 
Court Rules 1891, Schedule of Scale of Costs, 
Item 13.] — Where no application has been 
made at the hearing of an action to be allowed 
for a, conference with counsel under Item 13 
of the Schedule of Scale of Costs, the allow- 
ance of such a charge is » matter for the 
discretion of the Registrar. Hopkins v. 
Forster, 32 A.L.T. (Supplement), 5 ; 16 
A.L.R. (C.N.), 6; Judge Chomley (1910). 

(g) Application for Final Judgment. 

Order XIV., r. 8 (Rules of 1900)— Costs- 
Application for liberty to enter final judgment 
dismissed — Order made as on summons for 
directions.] — No general rule will be laid down 
as to the costs of an application for liberty 
to enter final judgment where the application 
is dismissed, and the matter is treated as a 
summons for directions. International Har- 



263 



COSTS. 



264 



vester Go. of America Ltd. v. Muttavey, (1906) 
V.L.R., 659 ; 28 A.L.T., 51 ; 12 A.L.R., 380. 
Hodges, J. 

Order XIV., rr. 1, 8 — Dismissal of summons 
for final judgment — Directions given after 
dismissal — Costs.] — See Practice and Plead- 
ing. Colonial Bank of Australasia Ltd. v. 
Martin, (1912) V.L.R., 383 ; 34 A.L.T., 47 ; 
18 A.L.R., 325. 

(h) Contested Wills. 

Will — Probate — Caveat — Costs — Adminis- 
tration and Probate Act 1890 (No. 1060), 
sec. 21.] — In cases of contested wills, costs 
should follow the event unless there are 
adequate reasons for an order of a different 
character. Where the testator by his con- 
duct, habits or mode of life has given the 
opponent of the will reasonable grounds for 
questioning his testamentary capacity, the 
costs of the opponent, although he is un- 
successful, should be paid out of the estate. 
Where that is not so, bat the opponent after 
due inquiry entertains a bona fide belief 
in the existence of a state of things, which, 
if it did exist, would justify the litigation, 
the unsuccessful party must bear his own 
costs. In re Millar, (1908) V.L.R., 682 ; 
30 A.L.T., 106 ; 14 A.L.R., 564. Hood, J. 

Will — Probate — Practice — Costs — 
Order nisi to revoke probate — Costs of un- 
successful propounder of will — Reasonable 
belief in validity of will.] — An executor who 
has obtained probate of an instrument which 
he reasonably and bona fides believes to be a 
valid will, but which is afterwards revoked 
on the ground of want of testamentary 
capacity, should be allowed out of the estate 
his costs as between solicitor and client, both 
of propounding the will and of opposing the 
application for revocation of probate. Twist 
v. Tye, (1902) P., 92, considered. In re 
Keane, (1909) V.L.R., 231 ; 30 A.L.T., 216 ; 
15 A.L.R., 198. Hodges, J. 

Will — Party supporting invalid revocation — 

Cos.ts.] — Semble, the costs of a party support- 
ing an apparently valid but really invalid 
revocation of a will by destruction, are gov- 
erned by the same considerations as govern 
the costs of an executor propounding an 



apparently valid but really invalid will. 
In re Richards, (1911) V.L.R., 284; 33 
A.L.T., 38. a' Beckett, J. 

(i) Administration of Estates ; Interpretation 
of Wills, doc. 

Costs — Originating summons — Litigation 
arising out of plaintiff's mistake as executor.] 

— Plaintiff, executor of a will, ordered to bear 
his own costs of an originating summons, the 
main purpose of which was to adjust a differ- 
ence between the plaintiff and a beneficiary 
arising out of a mistake made by the plaintiff 
as executor. Perpetual Executors and Trus- 
tees Association v. Simpson, 27 A.L.T., 179 ; 
12 A.L.R., 95. a' Beckett, J. (1905). 

Will — Construction — Validity of Trusts — 
Originating summons — Costs.] — " The cases 
to which counsel referred on the question of 
costs show that at all events since 1908 
it has been the practice in cases like the pre- 
sent to grant costs out of the estate as 
between solicitor and client to all parties, and 
as there are here no circumstances to justify 
a departure from that practice I accordingly 
make that order. The costs are to be paid 
one half out of the accumulation within the 
twenty-one years and the other half out of 
the accumulations since." In re Stevens ; 
The Trustees Executors dbc. Co. Ltd. v. 
Teague, (1912) V.L.R., 194; 33 A.L.T., 
233 ; 18 A.L.R., 195. Hood, J. 

Costs — Trustees — Unsuccessful Appeal.]— 

The costs of trustees, unsuccessful appellants, 
were in the speciaJ circumstances allowed out 
of the estate. In re Rosenthal ; Rosenthal v. 
Rosenthal, (1910) 11 C.L.R., 87 ; 16 A.L.R., 
455. H.C., Griffith, C.J. and Isaacs, J. 
(Higgins, J., dissenting). 

Costs — Originating — summons — • Bang's 
Counsel appearing with junior — Certificate for 
counsel.] — On an originating summons in 
which King's Counsel appeared with a junior, 
the Judge, upon an application that he should 
certify for one counsel only, left the matter 
to the discretion of the Taxing Officer. In re 
Jamieson ; Christensen v. Jamieson, (1907) 
V.L.R., 103 ; 28 A.L.T., 138 ; 12 A.L.R., 
570. Gussen, J. 



265 



COSTS. 



266 



Costs — Trustees — Passing accounts and al- 
lowance of commission — Order for in action — 
Trustees' costs of obtaining commission — 
Whether chargeable against estate — Adminis- 
tration and Probate Act 1890 (No. 1060), sec. 
26.] — Where, under an order in an action, 
trustees are authorised to pass their accounts 
and apply for commission, they are entitled to 
charge the estate with the costs incurred 
by them in relation to commission, as well 
as in regard to passing their accounts. Abbott 
v. Morris, 24 A.L.T., 228; 9 A.L.R., 96, not 
followed on this point. Macartney v. Kester- 
son, (1907) V.L.R., 226; 28 A.L.T., 170; 
13 A.L.R., 14. Hodges, J. 

Trustees — Passing Accounts and Allowance 
of Commission — Costs of trustee — Summons 
for sole purpose of obtaining leave to pass 
accounts and commission.] — Trustees seeking 
leave by originating summons to pass their 
accounts and obtain commission out of the 
testator's estate on passing accounts, may 
be allowed their costs out of the estate, even 
though no other questions are asked by the 
summons. In re Foulkes ; Ford v. Foulkes, 
30 A.L.T., 108 ; 14 A.L.R., 729. Madden, 
C.J. (1908). 

Executor or trustee passing accounts — 
Costs — Whether payable out of estate.] — Al- 
though ordinarily an executor or trustee is 
entitled to have his costs of passing his 
accounts and obtaining his discharge paid 
out of the estate, yet, if in so doing he seeks 
to cast an unnecessary burden on the estate, 
he must abide those costs himself. Cattenach 
v. Macpherson, (1908) V.L.R., 390; 29 
A.L.T., 259; 14 A.L.R., 214. Madden, 
C.J. 

Administration and Probate Act 1890 (No. 
1060), sec. 26 — Practice — Executors and Trus- 
tees — Passing Accounts before Chief Clerk — 
Costs of executors and trustees — Objection to 
allowance thereof — Time to take.] — Where 
beneficiaries desire to object that executors 
and trustees should not be allowed their 
costs of the proceedings before the Chief Clerk 
for the passing of accounts and allowance of 
commission, they should ask the Chief Clerk 
to certify specially upon the matter, and then 
raise the question upon further consideration 



before the Judge on the certificate. In re 
Dingwall ; Ross v. Ross, 34 A.L.T., 137 ; 18 
A.L.R., 584. a' Beckett, J. (1912). 

Trustees — Corpus and income interested — 
Mathematical adjustment of the burden of 
costs impossible — Burden divided equally.] — 

See Macartney v. Macartney, (1909) V.L.R., 
183 ; 30 A.L.T., 172 ; 15 A.L.R., 139. 
Hodges, J. 

Practice — Originating summons — Payment 
of costs out of estate — Order for sale of settled 
properties.] — An originating summons was 
taken out asking for certain directions 
affecting several properties settled by the will 
of the testator and seeking the sale of such 
properties. The sale was refused on the 
ground on which it was asked for, but there 
being no part of the testator's estate other 
than the properties in question out of which 
the costs of the summons could properly be 
taken the Court in the circumstances directed 
a sale of the whole of the properties for the 
payment of the costs, though the sale of 
some only of such properties would have been 
sufficient for the purpose. In re Lees ; 
Lees v. National Trustees Co., (1908) V.L.R., 
211; 30 A.L.T., 26; 14 A.L.R., 147. 
a' Beckett, J. 

(j) Conveyancing. 

Vendor and purchaser — Apparent flaw on 
title — Costs of proving existence of facts 
negativing existence of flaw.] — The costs of 
proving facts negativing the existence of 
what, on the face of the documents, appeared 
to be a flaw in the title, were ordered to be 
paid by the vendor. In re Kenna and 
Ritchie's Contract, (1907) V.L.R., 386; 28 
A.L.T., 218; 13 A.L.R., 191. a'Beckett,J. 

(k) In Patent Matters. 

Patents Act 1890 (No. 1123), sec. 50— Costs 
— Defendant's particulars of objections — 
Certificate of reasonableness.] — For a case 
in which, for the purposes of taxation of 
costs under the special circumstances of the 
case, a certificate was granted that the par- 
ticulars of the defendant under sec. 50 of the 
Patents Act 1890 were reasonable, see Potter 



267 



COSTS. 



268 



v. Broken Hill Proprietary Co. Ltd., 13 
A.L.R. (C.N.), 3. a' Beckett, J. (1907). 

Patent — Practice — Application to Court for 
indulgence — Attendance of Commissioner of 
Patents — Costs.] — Where an applicant for a 
patent applies to the High Court for an 
indulgence on notice to the Commissioner 
of Patents it is the duty of the Commissioner 
to attend the hearing and the applicant, 
whether he is successful or not, must pay the 
costs of the Commissioner. In re Stanley's 
Application, (1908) 5 C.L.R., 508 ; 14 A.L.R., 
238. Isaacs, J. 

(I) Other Gases. 

Appeal — Dismissal on the ground that it 
is incompetent — No notice of objection before 
hearing. — Costs] — Where an appeal is dis- 
missed on the ground that it is incompetent, 
the respondent, if he has not given the 
appellant notice of such ground before the 
hearing, may not be allowed costs. Jenkins 
v. Lanfranchi, (1910) 10 C.L.R., 595; 16 
A.L.R., 275. H.C., Griffith, C.J., O'Connor, 
Isaacs and Higgins, J J. 

Costs — Attorney-General necessary party — 
Attorney-General not joined until after pro- 
ceedings instituted — Special order as to costs.] 

— The Attorney-General having been held 
to be a necessary party, and having accord- 
ingly been joined as a party to proceedings 
after they had been instituted against 
a municipal council, a special order was made 
as to costs. Attorney ■ General (ex rel. Dodd) 
v. Ararat, Mayor, &c, of Borough of, (1911) 
V.L.R., 489 ; 33 A.L.T., 99 ; 17 A.L.R., 
474. Madden, C.J. 

TV. Bills of Costs. 

Supreme Court Act 1890 (No. 1143), sec. 
209 — Solicitor — Client — Bill of costs — Order 
for delivery — Discretion of Court.] — Under 
sec. 209 of the Supreme Court Act 1890 the 
Court has discretion to refuse to order the 
delivery of a bill of costs. Bear v. Waxman, 
(1912) V.L.R., 292; 34 A.L.T., 6; 18 
A.L.R., 269. F.C., Madden, C.J., Hood and 
Cussen, J J. 

Taxation — Solicitor and client — Bill of costs, 
what is — Moneys paid to solicitors in England 



in respect of appeal to Privy Council — Account 
of balance of lump sum so paid attached to 
bill of costs — " Moderation " of charges — 
Whether amount paid to English solicitors 
" moderated " or " taxed " — Jurisdiction to 
review decision of Taxing Master.] — Attached 
to B. and H.'s bill of costs, which was signed 
and dated, was a cash account in which the 
balance of a lump sum was charged as pay- 
ment to solicitors in England acting in con- 
nection with an application for leave to appeal 
to the Privy Council from the decision in the 
action in which the costs set out in the bill 
were incurred. The order of the Court 
directing taxation did not expressly provide 
for liberty to charge all sums paid by the 
solicitors to or on account of the client. 
The Taxing Master during the taxation in 
fact dealt with the payment made to the 
English solicitors, and, to enable him to do 
so, B. and H. gave him details of the charges 
of those solicitors. The client had provided 
the moneys to pay the costs of the English 
solicitors. Held, that the balance charged 
as payment to the English solicitors did not 
form part of the bill of costs. Held, also, 
that, under the circumstances, the Taxing 
Master had not taxed the English solicitor's 
charges as part of the bill, but had *' moder- 
ated " them as if they had been charges 
made by a commission agent. Semble, the 
Court had no jurisdiction to review the 
Taxing Master's decision. In re Lamroch, 
Brown and Hall's Costs, (1908) V.L.R., 238; 
29 A.L.T., 214 ; 14 A.L.R., 81. Cussen, J. 

V. Taxation. 
(a) High Court and Supreme Court. 
(1) Review of Taxation. 
Order LXV., r. 27 (38a) (Rules of 1906)— 
Taxation — Costs increased by misconduct or 
negligence of solicitor — Report of Taxing 
officer — Duty of Judge, nature of.] — On a 
report by the Taxing Officer under Order 
LXV., r. 27 (38a) the jurisdiction of the Judge 
is not disciplinary, but in the nature of a 
review of taxation. Woolf v. Willis, (1911) 
13 C.L.R., 23 ; 17 A.L.R., 454. H.C., 
Griffith, C.J., Barton and O'Connor, J J. 

Order LXV., r. 28 (Rules of 1906)— Whether 
applicable to probate matters — Appeal from 



269 



COSTS. 



270 



Taxing Officer's decision on item " Instruc- 
tions for brief " — Discretion of Judge.] — 

Quaere, whether Order LXV., r. 28, applies 
to probate matters, or to any proceedings 
other than actions Re Duke's Will, (1907) 
V.L.R., 632 ; 29 A.L.T., 50 ; 13 A.L.R., 
477. Cussen, J. (1907). 

Taxation — Solicitor and client — Bill of costs, 
what is — Money paid to solicitors in England 
in respect of appeal to Privy Council — Ac- 
count of balance of lump sum so paid attached 
to bill of costs — " Moderation " of charges — 
Whether amount paid to English solicitors 
" moderated " or " taxed." — Jurisdiction to 
review decision of Taxing Master.] — See, ante, 
Sub-heading, Bill op Costs. In re Lam- 
rock, Brown and Hall's Costs, (1908) V.L.R., 
238; 29A.L.T., 214; 14 A.L.R., 81. 

(2) Costs of Order to Review Heard by High 
Court. 
Costs — Taxation — Appeal from Court of 
Petty Sessions to High Court — Order to review 
— Limitation of amount of costs — Justices Act 
1890 (No. 1105), sec. 148— Rules of the High 
Court 1903, Part I., Order XL VI., r. 14; 
Part H., Sec. IV., r. 1 ; Rules of the High 
Court of 12th October, 1903, r. 3.]— Order 
XLVI., r. 14 of Part I., of the Rules of the 
High Court 1903 which prescribes the scale 
for taxation of costs does not refer to any 
maximum amount of costs to be allowed, 
and, therefore, the provision in sec. 148 
of the Justices Act 1890, which limits the 
total amount of costs that can be allowed 
in the Supreme Court upon an order to review 
a decision of a Court of Petty Sessions to 
£20, does not apply to the costs of an appeal 
by way of order to review from a Court of 
Petty Sessions exercising federal jurisdiction 
to the High Court. Lyons v. Smart, (1908) 
6 C.L.R., 285 ; 14 A.L.R., 619. H.C., 
Griffith, G.J., Barton, O'Connor, Isaacs and 
Higgins, JJ. 

(3) Costs of Appeal from County Court. 

Practice — Costs — Taxation — Appeal from 
County Court — Order dismissing appeal with 
costs to be taxed by Taxing Master.]— Where 
the Full Court has made an order that an 
appeal from the County Court be dismissed 



with Costs, such costs to be taxed by the 
Taxing Master of the Supreme Court, the 
Taxing Master has power to tax only the 
costs of the appeal, and has no power to tax 
the costs incurred in the County Court prior 
to the institution of the appeal. Marks v. 
Pelt, 10 V.L.R. (L.), 342, commented on. 
Ambler & Co. Proprietary Ltd. v. Clayton, 
(1909) V.L.R., 56; 30 A.L.T., 113; 14 
A.L.R., 730. a' Beckett, J. 

(4) Instructions for Brief. 

Instructions for brief — Total amount al- 
lowed by Taxing Officer not excessive — Item 
in such amount not properly chargeable — Re- 
duction of total amount.] — Where the total 
amount allowed for " Instructions for brief " 
appears to the Court to be reasonable, having 
regard to the nature of the case, but the 
taxing officer has shown how he makes up 
the amount and the Court disagrees with 
the allowance of an item, the total amount 
will be reduced by the amount of that item. 
Re Duke's Will, (1907) V.L.R., 632 ; 29 
A.L.T., 50 ; 13 A.L.R., 477. Cussen, J. 

"Instructions for Brief" — What included 
therein — Typing notes of evidence.] — Quaere, 
whether the charge for typing notes of evidence 
for the use of counsel is properly included 
under " Instructions for Brief." In re 
Duke's Will, (1907) V.L.R., 632 ; 29 A.L.T., 
50 ; 13 A.L.R., 477. Cussen, J. 

(5) Drawing Documents. 

Taxation — Appendix N. — Drawing pleadings 
and other documents — Accounts, statements, 
&c. for Judges' Chambers — Statement for 
duty.] — A statement for duty is not included 
under the item in Appendix N. " Accounts, 
statements and other documents for the 
Judge's Chambers, when required, and fair 
copy to leave." In re Duke's Will, (1907) 
V.L.R., 632 ; 29 A.L.T., 50 ; 13 A.L.R., 
477. Cussen, J. 

(6) Copies. 

High Court — Appeal Rules, Section IV., r. 
16 — Printing evidence for purpose of appeal 
— " Printing," whether it includes type- 
writing.] — Type-writing is not " printing " 



271 



COSTS. 



272 



within the meaning of section IV., r. 16 of 
the Appeal Rules under the High Court Pro- 
cedure Act. Peacock v. Osborne db Co., 

13 A.L.B., 254. Barton, J. (1907). 

Order XLVL, r. 13 (High Court)— Costs- 
Proceedings of an unnecessarily expensive 
character — " Taking proceedings," meaning 
of — Printing or type-writing documents and 
evidence.] — Preparing type-written or printed 
copies of documents or evidence for an ap- 
peal is not taking a proceeding within the 
meaning of Order XL VI., r. 13. Peacock v. 
Osborne & Co., 13 A.L.R., 254. Barton, J. 
(1907). 

Order LXV., r. 31 — Taxation — Solicitor and 
client — Copies of documents brought from 
opposite party — Costs of.] — Order LXV., r. 
31 does not apply where copies of documents 
are bought from the other side. In re Lam- 
rock Brown & Hall's Costs, (1908) V.L.R., 
238 ; 29 A.L.T., 214 ; 14 A.L.R., 81. Cus- 
sen, J. 

Taxation — Solicitor and Client — Firm of 
solicitors carrying on business in Melbourne 
and country town — Correspondence between 
Melbourne and country office — Close copies 
for country office — Whether costs may be 
allowed.] — Where two solicitors in partner- 
ship practise both at Melbourne and at » 
country town, one partner having the entire 
management of the Melbourne business and 
the other of the country business, charges 
for correspondence between the two offices 
and of close copies for the use of the country 
office are not allowable on taxation. The 
New Kohinoor Co. v. Williams, 13 V.L.R., 
435 ; 8 A.L.T., 169 ; and Connors v. 
McCarthy, 17 A.L.T., 187; 2 A.L.R., 10; 
discussed. In re Lamrock, Brown & Hall's 
Costs, (1908) V.L.R., 238; 29 A.L.T., 214; 

14 A.L.R., 81. Cussen, J. 

Taxation — Solicitor and client — Copy of 
notes of proceedings at hearing for use in 
Appeal Court.] — A charge for a copy of the 
notes of the proceedings at the hearing for 
use of counsel on appeal was allowed. Semble, 
such a charge is not affected by the decision : 
In re Duke's Will, (1907) V.L.R., 632 ; 29 



A.L.T., 50 ; 13 A.L.R., 477. In re Lam- 
rock Brown <Sa Hall's Costs, (1908) V.L.R., 
238 ; 29 A.L.T., 214 ; 14 A.L.R., 81. Cus- 
sen, J. 

Costs — Taxation — Party and party — Copy of 
Judge's notes — No agreement that costs be 
costs in the cause — No order of Court.] — 

Costs of obtaining a copy of the Judge's 
notes are not allowed in a taxation between 
party and party in the absence of any agree- 
ment that they shall be costs in the cause or 
an order of the Court. Semble, such an agree- 
ment should be embodied in an order of the 
Court. National Trustees &c. Co. v. Has- 
sett, (1908) V.L.R., 282; 29 A.L.T., 229; 
14 A.L.R., 154. Cussen, J. 

Taxation — Notes of evidence — Duty of coun- 
sel.] — Where one counsel alone is conducting 
a complicated and technical case, neither he 
nor the clerk in attendance can bo expected 
to take full notes of the evidence given. 
National Trustees t&c. Co. v. Hassett, (1908) 
V.L.R., 282 ; 29 A.L.T., 229 ; 14 A.L.R., 
154. Cussen, J. 

(7) Attendances ; Consultations. 

Taxation — Attendance on Registrar of Pro- 
bates — What should be allowed for.] — Quaere, 
whether an allowance of 10s. for attendance 
on the Registrar of Probates should not have 
been 6s. 8d. In re Duke?s Will, (1907) 
V.L.R., 632 ; 29 A.L.T., 50 ; 13 A.L.R., 477. 
Cussen, J. 

Order LXV., r. 31 (Rules of 1906)— Attend- 
ance to deliver documents — What included in 
such item — Attendances on counsel with 
brief, &C] — Order LXV., r. 31 does not apply 
to attendances on counsel with brief, to 
appoint consultations, or to mark refreshers. 
In re Duke's Will, (1907) V.L.R., 632; 29 
A.L.T., 50; 13 A.L.R., 477. Cussen, J. 

Taxation — Scale N. — Necessary attendance 
where no other provision made — Consultation 
with solicitor for purpose of getting advice.] 

— The item in Scale N. " For any other neces- 
sary attendance where no other provision is 
made, per hour 6s. 8d." does not apply to 
attendances in the nature of consultations 
by the client with the solicitor for the pur- 



273 



COSTS. 



274 



pose of getting legal advice in connection 
■with the management of an estate of which 
the client is executrix. In re Duke's Will, 
(1907) V.L.R., 632; 29 A.L.T., 50; 13 
A.L.R., 477. Cussen, J. 

Taxation — Solicitor and client — Country 
solicitor — Attendance at trial at Melbourne — 
Costs of, when allowed.] — The expenses of 
the attendance of a country solicitor at the 
trial of an action in Melbourne are allowed in 
exceptional cases only. In re Lamrock 
Brown <fc HalVs Costs, (1908) V.L.R., 238 ; 
29 A.L.T., 214 ; 14 A.L.R., 81. Cussen, J. 

Taxation — Solicitor and client — " Attend- 
ance ' ' — Client interviewing solicitor — No 
specific information as to advice given — Dis- 
cretion of Taxing Master to disallow costs.] — 
Though prima facie where a, client calls and 
takes up the time of a solicitor about the 
client's business, an attendance should be 
allowed for, yet, if the solicitor can say 
nothing more than that there were a number 
of attendances in the course of preparing 
for the hearing of an action, and can give no 
specific information as to the advice given, 
the Taxing Officer may properly disallow 
charges for such attendances. In re, Lam- 
rock Brown <So HalVs Costs, (1908) V.L.R., 
238; 29 A.L.T., 214 ; 14 A.L.R., 81. Cus- 
sen, J. 

Taxation — Solicitor and client — " Attend- 
ance " where letter would have been sufficient 
— Discretion of Taxing Master to allow for 
costs of letter only.] — Where there are two 
courses open to a solicitor and he chooses 
the less economical one, the Taxing Officer 
has power to allow for the more economical 
course only. Accordingly, charge for letter 
allowed, and not for attendance. In re 
Lamrock Broum & HalVs Costs, (1908) 
V.L.R., 238 ; 29 A.L.T., 214 ; 14 A.L.R., 81. 
Cussen, J. 

(8) Counsel's Fees. 

Taxation — Refreshers — Refresher claimed 
for each day instead of for each period of five 
hours — Claim remodelled by Taxing Master.] 
— Where the refreshers to counsel were 
marked at the beginning of each day and 
some days exceeded five hours and some of 



the refreshers were, accordingly, for periods 
of more than five hours, the Taxing Master 
was justified in remodelling the claim so 
that in the total the party was allowed the 
amount he was entitled to under the rules, 
which was less than he actually claimed, 
but more than it would have been had the 
number of refreshers been calculated accord- 
ing to the number of days for which refreshers 
were marked and not according to the 
number of periods of five hours each, during 
which counsel was engaged. National Trus- 
tees die. Co. v. Hassett, (1908) V.L.R., 282; 
29 A.L.T., 229 ; 14 A.L.R., 154. Cussen, J. 

Order LXV., r. 27 (48), (Rules of 1884 and 
1906)— Taxation— " Leading counsel "—Ab- 
sence of senior counsel.] — " Leading counsel " 
in Order LXV., r. 27 (48) means the counsel 
who was on the record as conducting the case. 
The second counsel while conducting the 
case from time to time in the absence of 
the senior counsel is not " leading counsel." 
National Trustees &c. Co. v. Hassett, (1908) 
V.L.R., 282; 29 A.L.T., 229; 14 A.L.R., 
154. Cussen, J. 

Rules of Supreme Court 1884, Order LXV., 
r. 27 — Fee on brief marked after hearing 
concluded — Discretion.] — The Taxing Master 
may allow counsel's fee on brief although not 
marked before the conclusion of the hearing 
if satisfied that the omission to mark was 
accidental and that the solicitor had bound 
himself to pay the fee. Re " Maizo " and 
" Maizena " Trade Marks ; Robert Harper 
& Co. v. National Starch Co., (1906) V.L.R., 
262 ; 27 A.L.T., 173 ; 12 A.L.R., 166. 
a' Beckett, J. 

(9) Witnesses. 

Costs — Witness — Permanent residence at 
place of trial — Temporary residence at another 
place — Scale applicable — Allowance for attend- 
ance at trial — Time occupied in travelling — 
Travelling expenses.] — Under Schedule 
XXXVIII. of the Common Law Procedure 
Act 1865 a witness whose permanent resi- 
dence is at the place of trial or in the neigh- 
bourhood is entitled to fees on the lower 
scale only, although he happens to be tem- 
porarily resident at another place. In such 



275 



COSTS. 



276 



a case he is entitled to his expenses of travel- 
ling from and back to the place of his 
temporary residence, and to the scale allow- 
ance for the time occupied in travelling in 
addition to the time he is actually engaged 
at the trial. Jarrett v. Strempel, (1911) 
V.L.R., 179; 32 A.L.T., 160; 17 A.L.R., 
141. Hodges, J. 

Taxation — Service of subpoena — Discretion 
of Taxing Master to disallow costs of.] — 
Where he comes to the conclusion that a 
witness would have attended as well without 
as with a subpoena, and that the party making 
a charge for service of the subpoena upon 
such witness could not have been under any 
other belief on the subject, the Taxing Master 
is justified in disallowing such charge ; but 
if there is any doubt the charge should be 
allowed. National Trustees <kc. Go. v. 
Hai>sett, (1908) V.L.R., 282 ; 29 A.L.T., 229 ; 
14 A.L.R., 154. Cussen, J. 

(10) Procuring Evidence ; Cause not Brought 
on for Trial ; No Evidence Given as to 
Particular Defence. 

Taxation — Procuring Evidence before case 
set down for trial — Whether any special 
obligation to justify.] — There is no general 
rule that the procuring of evidence should 
not take place until after the action is set 
down for trial, and that a party who procures 
evidence at an earlier stage must satisfy the 
Taxing Master as to the necessity for so 
doing. Etheridge v. President, &c. of the 
Shire of Berwick, (1906) V.L.R., 746; 28 
A.L.T., 77 ; 12 A.L.R., 442. Cussen, J. 

Action not brought to trial — Whether costs 
prematurely incurred — Facts to be considered 
■ — Evidence procured before case set down for 
trial — Action for flooding land — Contour sur- 
vey — Parties at issue — Summons for directions 
Order LXV., r. 27 (9), (49), (Rules of 1884).] 
— An action, in which the plaintiff claimed 
damages for the flooding of his land and an 
injunction, never came to trial but was put 
an end to by an order awarding the plaintiff 
his costs of the action to the date of the order 
and giving him liberty to take out of Court 
in satisfaction of his claim money which had 
been paid in with » denial of liability. The 



defence, which was the only pleading ordered 
on the summons for directions, the endorse- 
ment on the writ being accepted as a state- 
ment of claim, denied the allegations in the 
indorsement. Immediately after the de- 
livery of the defence, and before the action 
was set down for trial, the plaintiff caused a 
contour map of the land to be made. On 
the question whether the costs of the map 
should be disallowed on the ground that 
they were incurred prematurely. Held, that 
the Taxing Master should have regard to 
all the circumstances of the case at the time 
the costs were incurred, including the facts 
that it was an action for flooding, that the 
surveyor's report and evidence would have 
to be considered by the plaintiff's advisers 
as » source of information possibly affecting 
the future conduct of the case, that a plan 
would have to be prepared, that there had 
been a, summons for directions, that on the 
delivery of the defence the parties were at 
issue, and that the action might be heard 
in a month. Etheridge v. President &c. 
of the Shire of Berwick, (1906) V.L.R., 746 ; 
28 A.L.T., 77 ; 12 A.L.R., 442. Cussen, J. 

Order LXV., r. 27 (9), (49), (Rules of 1884) 
— "Procuring evidence " — "Preparation and 
delivery of briefs ' ' — Appendix N., Instructions 
for brief.] — Quaere, whether the costs incurred 
in " procuring evidence " within the meaning 
of sub-rule 9 of Order LXV., r. 27 are costs 
" of and consequent on the preparation and 
delivery of briefs " within the meaning of 
sub-rule 49. Etheridge v. The President, 
<Ssc. of the Shire of Berwick, (1906) V.L.R., 
746 ; 28 A.L.T., 77 ; 12 A.L.R., 442. 
Cussen, J. 

Order LXV., r. 2 (Rules of 1884)— Costs of 
issues — Judgment for defendant with costs, 
effect of— "Follow the event "—" Other- 
wise ordered " — Several defences — No evi- 
dence called as to one defence.] — The defen- 
dant pleaded three different defences but 
called evidence as to two only. Judgment 
was given for the defendant with costs. 
Held, that the defendant was entitled to the 
costs of preparing for the defence as to which 
no evidence was called, the form of the judg- 
ment amounting to an order " otherwise," 



277 



COSTS. 



278 



so as to exclude the operation of Order LXV., 
r. 2. McLean Bros. <fc Rigg Ltd. v. Grice, 
(1907) V.L.R., 28; 28 A.L.T., 120; 12 
A.L.R., 474. F.C., a' Beckett, A.-C.J., Hodges 
and Chomley, J J. 

(11) Unusual Expenses. 

Taxation — Order giving party his costs of 
action — Taxing Master, jurisdiction of to dis- 
allow.] — Although an order gives a party his 
costs of an action the Taxing Master is not 
thereby deprived of his jurisdiction to dis- 
allow costs not properly or reasonably 
incurred. Elheridge v. President &c. of the 
Shire of Berwick, (1906) V.L.R., 746 ; 28 
A.L.T., 77; 12 A.L.R., 442. Cussen, J. 

Taxation — Discretionary items — Duty of 
Taxing Master— Order LXV., r. 27 (9), (29), 
(38), (49), (Rules of 1884).]— Where there are 
costs which may possibly be allowed, the 
Taxing Master has to decide whether such 
costs in fact incurred are necessary or proper 
for the attainment of justice or defending the 
rights of the party, or whether they have been 
incurred through over-caution, negligence or 
mistake, or merely at the desire of the party. 
In deciding this question he is to take into 
consideration, inter alia, the nature of the 
cause or matter, the general conduct of the 
proceedings, and all other circumstances, 
including other fees and allowances made. 
Etheridge v. The President' &c. of the Shire 
of Berwick, (1906) V.L.R., 746; 28 A.L.T., 
77 ; 12 A.L.R., 442. Cussen, J. 

Taxation — Solicitor and client — Unusual 
charges, payment of by solicitor — Client's 
knowledge of unusual character of charges — 
Knowledge not obtained from solicitor.] — 

Where an amount above the ordinary or 
scale fees is paid by a solicitor on behalf and 
with the sanction of his client, who knows 
that the amount is unusual and may not or 
will not be allowed on taxation between 
party and party, such payment may be pro- 
perly chargeable by the solicitor against the 
client although the client's knowledge was 
not based on the information of the solicitor. 
Re Duke's Will, (1907) V.L.R., 632 ; 29 
A.L.T., 50; 13 A.L.R., 477. Cussen, J. 



Taxation — Solicitor and client — Country 
solicitor — Attendance at trial at Melbourne — 
Costs of, when an unusual expense — Know- 
ledge of client that they may not be allowed 
as between party and party — Necessity of 
proving.] — B. and H. were a firm of solicitors' 
carrying on business at Melbourne and 
Benalla. H. resided in Melbourne and did 
the firm's business there and B. did the 
firm's business at Benalla. H. attended at 
the trial of an action in Melbourne and the 
scale fee for such attendance was claimed 
in the bill of costs and allowed. B., also, 
attended at the trial. Held, that the costs 
of B.'s attendance and travelling expenses were 
an unusual expense and that such costs 
should not be allowed unless the solicitor 
proved that before they were incurred the 
client knew that they would not or might 
not be allowed as between solicitor and client. 
In re Lamrock Brown & HalVs Costs, 
(1908) V.L.R., 238; 29 A.L.T., 214; 14 
A.L.R., 81. Cussen, J. 

Taxation — Unusual work — Making copy of 
witness's evidence for his use — Request of 
client — Charge for unusual work — When 
client protected against.] — A charge for 

making a, copy, at the client's request, of a 
statement made by a very old and important 
witness for the use of such witness, is not the 
kind of charge against which the client needs 
protection as being for unusual work. That 
kind of charge usually relates to some matter 
suggested by the solicitor, and which the 
client may regard as so much part of the con- 
troversial proceedings that success will 
usually mean an order for payment by the 
other side. In re Duke's Will, (1907) V.L.R., 
632 ; 29 A.L.T., 50 ; 13 A.L.R., 477. 
Cussen, J. 

Notes of evidence — Duty of junior counsel 
to take — Typing notes — Unusual expense.] — 

Where junior counsel's fees are allowable on 
taxation, it is his duty and that of the clerk 
in attendance to take sufficient notes of the 
evidence given at the hearing. A sum paid 
for typing notes is, accordingly, an unusual 
expense. Re Duke's Will, (1907) V.L.R., 
632 ; 29 A.L.T., 50 ; 13 A.L.R., 477. 
Cussen, J. 



279 



COSTS. 



280 



(12) Costs Increased by Misconduct or 
Negligence. 

Order LXV., r. 27 (38a), (Rules of 1906)— 
Taxation — Costs increased by misconduct or 
negligence of solicitor — Burden of proof.] — 

Where it is alleged under Order LXV., r. 
27 (38a) that costs have been increased by 
the misconduct or negligence of the solicitor 
the onus is upon the client to establish that 
he has been damnified and to what extent. 
Woolf v. Willis, (1911) 13 C.L.R., 23; 17 
A.L.R., 454. H.C., Griffith, C.J., Barton and 
O'Connor, J J. 

(13) Conveyancing. 

Conveyancing Act 1904 (No. 1953), s. 4 (6) 
— Auction Sales Act 1890 (No. 1065), ss. 3, 
29— Sale of land by Sheriff under H. fa — 
Whether a "sale by auction" — Sheriff's 
costs of perusul of conveyance — Stipulation 
in contract of sale for payment by purchaser, 
legality of.] — A sale of land by auction con- 
ducted by the Sheriff under a, writ of fi. fa. 
is, notwithstanding the provisions of the 
Auction Sales Act 1890 excusing the Sheriff 
from the responsibilities imposed by that Act, 
a sale by auction within the meaning of sec- 
tion 4 (6) of the Conveyancing Act 1904, and 
a clause in the contract of sale charging the 
purchaser with the Sheriff's costs of perusal 
of the conveyance is accordingly illegal. Re 
Rogers' and Rodd's Contract, (1907) V.L.R., 
511 ; 29 A.L.T., 13 ; 13 A.L.R., 312., 
Madden, C.J. 

Conveyancing Act 1904 (No. 1593), s. 4 (6) 
— Contract for sale of land — Sale by auction 
— Costs — Exclusive of perusal and obtaining 
execution of transfer — Purchaser to pay — 
Validity of condition.] — A provision in a 
contract made at the sale of land by auction 
that the purchasers shall pay the vendors' 
costs and expenses of and incidental to 
obtaining the execution of the transfer is not 
void under section 4 (6) of the Conveyancing 
Act 1904. The expression " costs of perusal 
of the conveyance or of obtaining the execu- 
tion thereof " in section 4 (6) of the Convey- 
ancing Act 1904, does not include the costs 
of all matters connected with the transfer 
of the land sold. " Perusal " means reading 



the conveyance to see if it expresses what it 
is intended to express. In re Sutton and the 
Federal Building Society's Contract, (1909) 
V.L.R., 473 ; 31 A.L.T., 75 ; 15 A.L.R., 560. 

Conveyancing Act 1904 (No. 1953), s. 4 (6) 
— Whether applicable to land under Transfer 
of Land Act — "Conveyance,'' "transfer" 
— Contract of sale by auction — Stipulation 
that purchaser shall pay vendor's costs of 
perusal of conveyance.] — See Vendor and 
Purchaser. Re Rogers and Rodd's Con- 
tract, (1907) V.L.R., 511 ; 29 A.L.T., 13 ; 13 
A.L.R., 312. 

(14) Term Fee. 

" Term fee " — Letters necessary in interest 
of client.] — On a taxation between solicitor 
and client charges for letters necessary in 
the interests of the client as executrix under 
a will are not covered by the allowance of a 
term fee. In re Duke's Will, (1907) V.L.R., 
632 ; 29 A.L.T., 50 ; 13 A.L.R., 477. Cus- 
sen, J. 

(15) Court Fees. 

Appendix 0* Rules of Supreme Court 1884 — 
Trustees — Passing accounts — Accounts agreed 
upon between parties — Fees chargeable.] — 

Where trustees are ordered by the Court to 
pass their accounts before the Chief Clerk the 
fees prescribed for " taking accounts " by 
Appendix O* to the Rules of the Supreme 
Court 1884 are chargeable although the 
parties agree amongst themselves not to 
dispute the accounts presented by the trus- 
tees and the Chief Clerk accordingly accepts 
them as proper accounts. There is also 
chargeable 10s. per hour for each hour oocu- 
pied by the Chief Clerk in inquiring as to the 
commission to be allowed the trustees. Re 
Hutchinson, 32 W.R., 392, approved and ap- 
lied ; In re Winter ; Winter- Irving v. Winter, 
(1908) V.L.R., 74; 29 A.L.T., 144; 13 
A.L.R., 701. F.C., Madden, C.J., a' Beckett 
and Cussen, J J. 

Rules of the Supreme Court 1884, Order 
LXXm. — Appendix — Court fees and per- 
centages — Attendance of officer on produc- 
tion of document.] — The fee of £1 provided 
by Appendix O must be paid whenever, at 



281 



COSTS. 



282 



the request of the solicitor, a document from 
the Prothonotary's Office is produced in 
Court by an officer. Daniel v. McNamara, 
17 A.L.R. (C.N,), 9. Madden, C.J. (1911). 

(6) INFERIOR COURTS. 

(1) County Court. 

(a) Scale of Costs. 

(i.) Where Scale in the Rules Applicable. 

County Court — Scale of Costs — Rule 446 
(Rules of 1891)—" Value of property in litiga- 
tion " — Judgment for Is. damages and in- 
junction restraining defendant from breaking 
his covenant with the plaintiff not to carry on 
business within a certain area — Scale of costs 
regulated, not by the amount of damages, but 
by the value of the plaintiff's right preserved 
from infringement by the injunction.] — 
Moylan v. Nolan, 27 A.L.T. (Supplement), 
16 ; 12 A.L.R. (C.N.), 13. Judge Box (1906). 

County Court — Action to enforce charge 
upon land for rates — Scale of costs, how 
determined — Value of land.] — In actions to 
enforce by sale a charge for municipal rates 
over land, the value of the land and not the 
amount of the charge fixes the scale upon 
which costs should be taxed. Mayor, dec. 
of Malvern v. Johnson, 28 A.L.T. (Supplement) 
7 ; 12 A.L.R. (C.N.), 28. Judge Box (1906). 

County Court — Scale of Costs — Review of 
taxation—" The value of the property in 
litigation "—County Court Rules 1891, Rules 
446, 450.] — The true test of " the value of the 
property in litigation " in Rule 446 of County 
Court Rules 1891 is the value of the right in 
the property claimed by the plaintiff and 
not the value of the whole property in which 
the right is claimed. Wilson v. Anderson, 
26 A.L.T. (Supplement), 5; 11 A.L.R., 
(C.N.), 35, explained. Moylan v. Nolan, 27 
A.L.T. (Supplement), 16 ; 12 A.L.R. (C.N.), 
13, appfcved. Townsing v. Egan, 29 A.L.T. 
(Supplement), 29; 14 A.L.R. (C.N.), 18. 
Judge Moule (1908). 

County Court — Costs of issues — Rule 446 
(Rules of 1891).] — Where a plaintiff recovers 
judgment for » smaller amount than he 
claimed with costs on certain of the issues, 



his costs as between party and party are 
regulated by the scale of costs applying to 
the amount for which he has obtained judg- 
ment ; but the costs of the defendant, who 
obtains judgment with costs on the other 
issues, are regulated by the amount sought 
to be recovered in the action. Lynch v. 
Tognini, 28 A.L.T. (Supplement), 1 ; 12 
A.L.R. (C.N.), 14. Judge Box (1906). 

County Court — Costs — Plaintiff successful 
on both claim and counter-claim — Scale upon 
which costs to be taxed — County Court Rules 
1891, Schedule of Scale of Costs.] — Where an 
item under the Schedule of Scale of Costs 
applies both to the claim and counter-claim, 
and is not divisible, and where the plaintiff 
is successful on both claim and counterclaim, 
the higher scale of costs relating to such item 
should be allowed. Wilson v. Scott, 3 A.L.R. 
(C.N.), 87, explained. Hopkins v. Forster, 
32 A.L.T. (Supplement), 5 ; 16 A.L.R. (C.N.), 
6. Judge Chomley (1910). 

County Court — Application for new trial — 
Scale of costs applicable-] — For the scale of 
costs adopted in fixing the costs of an appli- 
cation for a new trial, see Levey v. Parker, 28 
A.L.T. (.Supplement), 6 ; 12 A.L.R. (C.N.), 21. 
Judge Box (1906). 

(ii.) In Other Cases. 

Costs — Taxation — Solicitor and Client — 
County Court — Proposed action which is 
never commenced — Action commenced but 
proceedings dropped without order as to costs — 
Scale of costs applicable — County Court Rules 
1891, Schedule of Scale of costs.] — In taxing 
the costs as between solicitor and client for 
work done in relation to a proposed County 
Court action which is never commenced, 
or in relation to a County Court action 
which is commenced but in which, by reason 
of the proceedings being dropped, no order is 
made as to costs, the Scale of Costs in the 
Schedule to the County Court Rules 1891 
is not the governing and only guide in deter- 
mining the amount to be allowed, but the 
Taxing Master may obtain assistance from 
it in the exercise of his discretion. In re 
Brown, (1911) V.L.R., 39 ; 32 A.L.T., 133 : 
16 A.L.R., 602. a' Beckett, J. 



283 



COSTS. 



284 



County Court — Costs — Items not included 
in Schedule of Scale of Costs — Jury fees and 
expenses — View — Travelling and other ex- 
penses — Juries Act 1890 (No. 1104), sec. 77, 
Tenth Schedule.] — By virtue of sec. 77 of the 
Juries Act 1890 and the Tenth Schedule 
thereto, jury fees and travelling and other 
expenses paid by one of the parties to an 
action, in respect to a view by the jury, are 
allowable on the taxation of his costs under 
an order giving him the costs of the action. 
Reid v. Panton, 32 A.L.T. (Supplement), 7 ; 
16 A.L.R. (C.N.), 13. Judge Eagleson (1910). 

County Court — Costs — Items not included 
in Schedule of Scale of Costs — Conduct of 
parties at trial — Implied agreement not to 
take objection — Expenses incurred on faith 
of such agreement.] — On the taxation of costs 

the unsuccessful party will be precluded from 
taking objection to the allowance of items 
on the ground that they are not comprised in 
those set out in the Schedule of Scale of Costs, 
where the parties have during the trial entered 
into an implied agreement that no such 
objection will be raised. Reid v. Panton, 32 
A.L.T. (Supplement),. 7 ; 16 A.L.R. (C.N.), 
13. Judge Eagleson (1910). 

(6) Instructions to Sue, &c. 

Schedule of Scale of Costs — Items 2, 35 — 
Plaintiff's costs on claim and counterclaim — 
Two sets of costs — Instructions on claim — 
Instructions on counterclaim.] — Where a 
defendant's counterclaim raises matter differ- 
ent from that which arises upon the plaintiff's 
claim, the plaintiff should, on taxation of 
his bill of costs as against the defendant, be 
allowed under Item 35 of the Schedule of 
the Scale of Costs for his solicitors' attendance 
upon him to advise or receive instructions 
from him in regard to the counterclaim, as 
well as under Item 2, for instructions to sue 
in regard to the claim. Ambler & Co. Pro- 
prietary Ltd. v. Clayton, 31 A.L.T. (Supple- 
ment), 5; 15 A.L.R. (C.N.), 15. Judge 
Johnston. 

County Court Rules 1891 — Schedule of 
Scale of Costs, Item 2, and Schedule of Forms, 
Form 3 — Form of summons.] — Professional 
costs provided by Item 2 of the Schedule of 
Scale of Costs to the County Court Rules 1891 



are not to be allowed on taxation where the 
summons issued consists of two separate 
sheets of paper, one of which sheets contains 
the plaintiff's particulars of demand. Lawson 
v. Batchelor, 29 A.L.T. (Supplement), 29 ; 
14 A.L.R. (C.N.), 17. Judge Eagleson (1908). 

County Court — Scale of Costs, Item 2 — 
" Instructions to sue " — Costs allowed for 
obtaining further particulars, drawing, en- 
grossing, &c. in connection therewith in 
addition to allowance for " Instructions to 
sue " — Discretion of Registrar.] — Moylan v. 
Nolan, 27 A.L.T. (Supplement), 16 ; 12 
A.L.R. (C.N.), 13. Judge Box (1906). 

(c) Perusing ; Attendance on Client. 

County Court — Costs — Solicitor plaintiff — 
Acting professionally on his own behalf — 
Costs of perusing documents — Perusing inter- 
rogatories — Schedule of Scale of Costs, Item 

28.] — Where the plaintiff, a solicitor, obtains 
judgment with costs in an action wherein 
he acted as solicitor on his own behalf, he is 
entitled to the fee fixed by the Schedule of 
Scale of Costs for the perusal of all necessary 
documents, and he accordingly may charge 
under Item 28 for perusing the defendant's 
interrogatories. Hopkins v. Forster, 32 
A.L.T. (Supplement), 5 ; 16 A.L.R. (C.N.), 6. 
Judge Chomley (1910). 

County Court — Scale of Costs, Item 28 — 
Costs of perusing further and better answers to 
interrogatories may be allowed.] — Moylan v. 
Nolan, 27 A.L.T. (Supplement), 16; 12 
A.L.R. (C.N.), 13. Judge Box (1906). 

Schedule of Scale of Costs — Item 35 — Pro- 
ceedings taken by opposite party — Payment 
into Court by defendant — Plaintiff's solicitor's 
attendance upon his client thereon.] — Pay- 
ment into Court by a defendant is a "' pro- 
ceeding taken by the opposite party " within 
the meaning of Item 35 of the Schedule of 
Scale of Costs, and, consequently, the plaintiff 
may be allowed under that item for his 
solicitor's attendance upon him to advise 
or get instructions from him on receiving 
notice from him of such payment in. Ambler 
& Co. Proprietary Ltd. v. Clayton, 31 A.L.T. 
(Supplement), 5; 15 A.L.R. (C.N.), 15. 
Judge Johnston. 



285 



COSTS. 



286 



(d) Attending Court. 
County Court— Scale of Costs, Items 15 
and 16 — " Attending on trial with counsel." 
— " On trial," meaning of— Attending Court 
to hear the judgment of the Court reserved 
from one day to a subsequent day is not 
attending " on trial "—The Scale does not 
provide for such an attendance.p-.M02/Zan v. 
Nolan, 27 A.L.T. (Supplement), 16; 12 
A.L.R. (C.N.), 13. Judge Box (1906). 

County Court — Costs — Taxation — Solicitor 
party to action acting professionally on own 
behalf — Solicitor called as witness — " Attend- 
ing Court " — Witnesses' expenses — Schedule 
of Scale of Costs (The County Court Rules 
1891), Items 14, 15, 16.]— A solicitor was 
party to an action in which he acted profes- 
sionally on his own behalf and was also called 
as a witness. Held, that he was entitled to 
be allowed his charge for " attending Court " 
under Items 14, 15 and 16 of the Schedule 
of Scale of Costs, or his expenses as a witness, 
whichever allowance was the higher, but not 
both. Hopkins v. Forster, 32 A.L.T. (Sup- 
plement), 5; 16 A.L.R. (C.N.), 6. Judge 
Chomley (1910). 

County Court — Costs — Counsel's fees — 
Practitioner conducting trial on behalf of his 

client.] — See post (e) Counsel's Fees ; Deaw- 
ikg Brief, &o. O'Brien v. Victorian Railways 
Commissioners, 27 A.L.T. (Supplement), 11 ; 
12 A.L.R. (C.N.), 6. 

(e) Counsel's Fees ; Drawing Brief, &c. 

County Court — Practice — Costs — Applica- 
tion for liberty to sign final judgment — Scale 
of costs.] — Items 30, 31 and 32 of the Schedule 
of Scale of Cos.ts apply to applications for 
final judgment. Consequently the following 
items were allowed : — " Drawing and engross- 
ing brief for counsel £1 ; Fee to counsel and 
clerk £2 4s. 6d. ; Attending with counsel 
10s." Mackay v. Burley, 27 A.L.T. (Supple- 
ment), 10 ; 12 A.L.R. (C.N.), 2. Judge 
Chomley (1905) 

County Court — Costs — Counsel's fees — 
Practitioner conducting trial on behalf of his 
client.] — Where a party's practitioner attends 
Court and conducts the trial on behalf of his 



client he is not entitled to counsel's fee on 
brief as set out in Item 11 of the Scale of 
Costs. His fees for the first and subsequent 
days of the trial are governed by Items 17 and 
44 of such Scale. 0' Brien v. Victorian Bail- 
ways Commissioners, 27 A.L.T. (Supplement), 
11 ; 12 A.L.R., 6. Judge Eagleson (1906). 

County Court Act 1890 (No. 1078), sec. 64 
(4), (8) — Summons for final judgment — Rule 
84 — Attendance of counsel — Costs — Allow- 
ances under Schedule of Scale of Costs to 
counsel and attorney — Items 30, 31 and 32 — 
" Drawing and engrossing brief " — " Fee to 
counsel and clerk " — " Attending with coun- 
sel."] — There is nothing in Rule 84 to pre- 
clude counsel from appearing for the parties 
on applications . for final judgment. In 
referring the costs of such an application 
to the Registrar for taxation, His Honor 
Judge Box, intimated that in the majority 
of the applications for final judgment which 
had come before him, if he had had to deal 
with the fixing of. the costs, he would have 
allowed the costs of " Drawing and engrossing 
brief for counsel," " Fee for counsel and clerk" 
and " Attending with counsel." Watson v. 
Watson, 27 A.L.T. (Supplement), 14 ; 12 
A.L.R. (C.N.), 9 (1906). 



(/) Costs of Warrants. 

County Court Rules 1891, r. 441 — Costs — 
Warrant of execution to satisfy a County 
Court judgment — Bailiff's fees — County Court 
Rules 1891, r. 441— Scale of Costs, Item 24.]— 
The only costs of warrants against the 
goods which may be allowed against the 
defendant under County Court Rules 1891, r. 
441, are the costs of issuing such warrant 
and the bailiff's fee for execution thereof. 
In re Luke Nolan, deceased (No. 1), 29 
A.L.T. (Supplement), 31 ; 14 A.L.R. (C.N.), 
21. Judge Moule (1908). 

" Taxed costs incurred in an action " — 
Costs of warrant of execution — Effect of 
sequestration — County Court Rules 1891, r. 
441— Insolvency Act 1890 (No. 1102), sec. 
77.] — The term " taxed costs " in sec. 77 
of the Insolvency Act 1890 does not include 
costs of execution of a County Court judgment 
other than the costs of issuing the warrant 



287 



COSTS. 



288 



of execution (including the bailiff's fee for 
executing the warrant). In re Luke Nolan, 
29 A.L.T. (Supplement), 31 ; 14 A.L.R. 
(C.N.), 21. 

(g) Witnesses' Expenses. 

County Court — Witnesses present until 
close of trial.] — A party is entitled to have 
his witnesses present until the close of the 
trial, and to be allowed, as part of his costs 
of the action, the expenses of having them so 
present. Lynch v. Tognini, 28 A.L.T. 
(Supplement), 1 ; 12 A.L.R. (C.N.), 14. 
Judge Box (1906) 

County Court — Witnesses in attendance — 
Case in printed list — No defended cases to be 
taken — Discretion of Registrar.] — Plaintiff's 
expenses and those of his witnesses were 
allowed for the day on which the case was 
in the printed list for hearing, but no de- 
fended cases were to be taken. Lynch v. 
Tognini, 28 A.L.T. (Supplement), 1 ; 12 
A.L.R. (C.N.), 14. Judge Box (1906). 

County Court — Costs — Taxation — Solicitor 
party to action acting professionally on own 
behalf — Solicitor called as witness — " Attend- 
ing Court " — Witnesses' expenses — Schedule 
of Scale of Costs (The County Court Rules 
1891), Items 14, 15, 16.]— See ante (d) 
Attending Coukt. Hopkins v. Forster, 32 
A.L.T. (Supplement), 5; 16 A.L.R. (C.N.), 6. 

(2) Court of Insolvency, 
(a) Authority of Taxing Officer. 
Costs — Insolvency — Taxation — Allocatur — 
Objection thereto by official accountant — In- 
solvency Rules 1898, r. 151.]— The Taxing 
Officer's decision as to an item in a solicitor's 
bill of costs cannot be questioned by the 
official accountant in exercise of his powers 
under r. 151 of the Insolvency Rules 1898. 
Re Schutze, 29 A.L.T. (Supplement), 20 ; 
14 A.L.R. (C.N.), 5. Judge Moule (1908). 

(6) Proceedings Relating to Deeds of Assign- 
ment ; Scale of Costs. 

Insolvency Act 1897 (No. 1513), Part VI.— 
Deed of assignment — Costs of preparation of — 
Taxation — Scale of costs — Rules of Supreme 
Court 1906, App. N., Conveyancing.] — The 



costs of a deed of assignment should be taxed 
under the Conveyancing Scale in Appendix 
N. to the Rules of the Supreme Court 1906. 
In re Hipper and Butcher, 28 A.L.T. (Sup- 
plement), 17 ; 13 A.L.R. (C.N.), 9. Judge 
Molesworth (1907). 

Insolvency Act 1897 (No. 1513), Part VI.— 
Insolvency Rules 1898 — Deeds of assignment 
— Solicitor's costs.] — Solicitors' costs in con- 
nection with deeds of assignment are not 
governed by the Insolvency Rules 1898. 
In re Power, 26 A.L.T. (Supplement), 10 ; 
11 A.L.R. (C.N.), 37, disapproved and not " 
followed. In re Alderman, 28 A.L.T. 
(Supplement), 13 ; 13 A.L.R. (C.N.), 6. 
Judge Molesworth (1907). 

Insolvency Act 1897 (No. 1513), Part VI — 
Deed of assignment — Costs of trustee — Costs 
of taxation — Insolvency Rules 1898, r. 152.] — 
Rule 152 of the Insolvency Rules 1898 does 
not apply to the costs of taxation of a bill 
of costs of a solicitor acting for a trustee 
of an estate assigned by deed. In re Hipper 
and Butcher, 28 A.L.T. (Supplement), 17 ; 
13 A.L.R. (C.N.), 9. Judge Molesworth 
(1907). 

(c) Trustee : Costs of Instructing Solicitor. 

Costs — Insolvency — Certificate application 
-^Trustee's report — Offences charged in re- 
port — Costs of employing solicitor to frame, 
&c. such charges — Trustee's statutory duties, 
delegation of — Insolvency Act 1897 (No. 
1513), sees. 27 (1), 91 (4)— Insolvency Rules 
1898, r. 297.] — A trustee must perform all 
the ordinary statutory duties himself ; he 
cannot delegate those duties so as to cast 
an extra burden on the estate. But where 
there are legal difficulties as' to the form of 
the charges to be laid against the insolvent 
for offences against the insolvency law in 
the report required to be filed by the trustee 
under sec. 91 of the Insolvency Act 1897, the 
trustee will be allowed his costs of instructing 
a solicitor to frame such charges, and of the 
drawing, copying and engrossing by the 
solicitor of so much of the report as relates 
to such charges. In re Early, 32 A.L.T. 
(Supplement), 9; 17 A.L.R. (C.N.), 9. 
Judge. Moule (1911). 



289 



COSTS. 



290 



(d) Partnership Matters. 

Costs — Assignments of Joint and separate 
estates — Costs of administration — Apportion- 
ment — Solicitor's costs — Trustees' duties.] — 
Where it is provided in a deed of assignment 
of the joint and separate estates of persons 
trading as partners, that in the administra- 
tion of the separate estates, the separate 
creditors are to get advantage of the separ- 
ate assets after deducting therefrom the costs 
of and incidental to the administration of the 
separate estates, the costs distinctly referable 
to the separate estates should be paid there- 
out, and not out of the assets of the joint 
estate. Bills of costs are not rendered to 
trustees as » matter of form merely, but in 
order that the trustees may have the neces- 
sary opportunity of duly protecting the 
interests of the creditors whom they repre- 
sent. In re Hipper and Butcher, 30 A.L.T. 
(Supplement), 18; 15 A.L.R. (C.N.), 1. 
Judge Movie (1909). 

Insolvency Act 1890 (No. 1102), sec. 41— 
Insolvency Rules 1898, rr. 166, 167, 168, 169, 
— Appendix to Rules, Fart 2, Scale of 
solicitor's costs — " Instructions for Schedule " 
—Sequestration of partnership estate — Estates 
of partners — Separate Schedules, whether 
solicitor entitled to charge in respect of.] — 
In the case of the sequestration of a partner- 
ship estate, where the schedule of the firm 
has been filed, a solicitor is not entitled, in 
addition to the allowance of the item " in- 
structions for Schedule " in respect of the 
partnership schedule, to charge for " instruc- 
tions for schedule " in respect of the individual 
members of the partnership. In re Day and, 
Sloan, 32 A.L.T. (Supplement), 3 ; 16 A.L.R. 
(C.N.), 9. Judge Moule (1910). 

(e) Drawing ; Engrossing. 

Insolvency — Deed of assignment — Printed 
form — Costs of preparing—" Engrossing."] 

— Where a deed of assignment was on a 
printed form, Held, that the solicitor should 
be allowed a fair charge for " engrossing " 
the deed, which was fixed at 3d. per folio, and 
that the allowance should not be restricted 
to the part of the deed which was in writing. 
In re Hipper and Butcher, 28 A.L.T. (Sup- 



plement), 17 ; 13 A.L.R. (C.N.), 9. Judge 
Molesworth (1907). 

Taxation — "Drawing" deeds of assign- 
ment — Meaning thereof — Allowances where 
printed forms of deeds of assignment are used 
— Rules of the Supreme Court, Appendix 
N — Conveyancing Scale.] — The drawing or 
drafting of a deed means " composing and 
writing it." The mere production of a 
printed document does not by itself carry 
with it the conclusion that the person pro- 
ducing it " drafted " it or that it was 
" drafted " for him. In re Moylan, 30 
A.L.T. (Supplement), 10 ; 14 A.L.R. (C.N.) 
37. Judge Moule (1908). 

Taxation — " Engrossing " — Use of printed 
forms as engrossments — Rules of the Supreme 
Court — Appendix N. — Conveyancing sale.]- — 
Semble, no allowance should be made for 
" engrossing " except for the actual writing 
contained in the document. In re Moylan, 
30 A.L.T. (Supplement), 10 ; 14 A.L.R. 
(C.N.), 37. Judge Moule (1908). 

Insolvency — Costs — Trustee 's solicitor — 
Deed of assignment — Charge for drawing 
bill of costs and copy for Chief Clerk — Allow- 
ance on taxation — Insolvency Act 1890 (No. 
1102), sees. 12, 153, 154— Insolvency Act 
1897 (No. 1513), sec. 27 (3)— Insolvency 
Act 1903 (No. 1836), sec. 10— Insolvency 
Rules 1890, Schedule of Fees and Costs.] 
— Owing to the repeal by sec. 10 of the 
Insolvency Act 1903 of the provision in sec. 
27 (3) of the Insolvency Act 1897 prohibiting 
the allowance of any costs " for preparing or 
taxing " bills of costs, a. solicitor acting 
for the trustee under a deed of assignment, 
which provides for payment by the trustee 
of all costs charges and expenses out of the 
assigned estate, is entitled on the taxation 
of his bill of costs by the Chief Clerk to charge 
against the estate for drawing the bill of costs 
for taxation, and a copy for the Chief Clerk. 
In re Nicholls and Shelton, 32 A.L.T. 
(Supplement), 10 ; 17 A.L.R. (C.N.), 2. 
Judge Moule (1911). 

(/) Auctioneer's Charges. 

Insolvency — Surcharges — Auctioneer's 
fees — Commission allowed to auctioneer on 

10 



291 



COSTS. 



292 



advertising charges — Out-of-pocket expenses 
— Appendix of Forms to Insolvency Rules 
1898, Part 4.] — Where an auctioneer engaged 
in the sale of property of an insolvent estate 
incurs expenses in advertising the sale in the 
newspapers and pays the proprietors of the 
newspapers their account, less a commission 
or rebate, he is not entitled to charge the 
estate with the full amount, i.e., without 
deducting the commission or rebate. In re 
McBain, 32 A.L.T. (Supplement), 2 ; 16 
A.L.R. (C.N.), 9. Judge Moule (1910). 

VI. — Security for Costs. 

Commonwealth Trade Marks Act 1905 (No. 
20 of 1905), sec. 46 — Registration of Trade 
mark — Notice of opposition to person not 
resident in Australia — Security for costs — High 
Court — Jurisdiction.] — The Court has no 
jurisdiction under sec. 46 of the Trade Marks 
Act 1905 to order security for costs of an 
application pending before the Registrar 
of Trade Marks to be given by a person not 
resident in Australia who has given notice of 
opposition to the application. Ex parte 
Carroll, 15 A.L.R., 295. Isaacs, J. (1909). 

Service and Execution of Process Act 1901 
(No. 11 of 1901), sec. 10 — Writ of summons 
served in another State — Security for costs — 
Discretion to order.] — Sec. 10 of the Service 
and Execution of Process Act 1901 leaves the 
Court or Judge entirely at large as to the 
ground upon which it or he may exercise or 
ought to exercise its or his discretion to order 
that security for costs of a defendant who has 
been served under that Act with a writ of 
summons should be given by the plaintiff, 
and the Court or Judge must be guided in each 
particular case by the facts. In Evans v. 
Sneddon, 28 V.L.R., 396; 24 A.L.T., 79; 
8 A.L.R., 215, the Full Court did not attempt 
to enumerate all the circumstances which 
might influence the Court in granting or 
refusing an application under that section. 
Smith v. Ohisholm, (1908) V.L.R., 579; 
30 A.L.T., 48 ; 14 A.L.R., 471 (Hodges, J.). 

Security for costs — Foreign company — 
Registered office and agent in Victoria — 
Companies Act 1896 (No. 1482), sec. 70— 



Rules of Supreme Court 1884, Order LXV., r. 

6.] — A foreign company, suing as plaintiff in 
Victoria, will not be relieved from giving 
security for costs upon proof only that it 
has an agent in Victoria, and is carrying on 
business in Victoria, and has complied with 
sec. 70 of the Companies Act 1896. Norton 
or Barton & Sons Ltd. v. Sewell, (1906) 
V.L.R., 401 ; 27 A.L.T., 214 ; 12 A.L.R., 
209. a 1 Beckett, A.-C.J. (1906). 

Court of Mines — Petition to wind up mining 
company — Practice — Security for costs — 
Mines Act 1890 (No. 1120), sec. 180.]— Under 
sec. 180 of the Mines Act 1890, a Court of 
Mines has jurisdiction to deal with an applica- 
tion that a petitioner resident out of the juris- 
diction of the Court should be required 
to give security for costs before proceeding 
with the petition. The usual practice is that 
where a petitioner resides out of the jurisdic- 
tion of the Court, and the respondent would, 
if successful, have great difficulty in recovering 
the costs incurred by the presentation of a 
petition, security for such costs should be 
required. The exception is where the peti- 
tioner is clearly a creditor of the respondent 
company to such an amount as to sufficiently 
secure all probable costs occasioned by 
the presentation of the petition to wind up. 
Be The Mount Lyell Consols Mining Corpora- 
tion, No Liability ( No. 2), 30 A.L.T. (Supple- 
ment), 17 ; 14 A.L.R. (C.N.), 41. Judge 
Chomley (1908). 

VEI. — Agreements por Remuneration op 
Solicitor. 

Supreme Court Act 1890 (No. 1142), sec. 
262 — Solicitor — Client — Costs — Agreement as 
to so.icitor's remuneration — Agreement to 
pay lump sum for work wholly past.] — Sec. 
262 of the Supreme Court Act 1890 does not 
relate to agreements between solicitor and 
client as to the amount of the solicitors, 
professional remuneration for work wholly 
past. Such agreements are governed by the 
rules of common law and equity. Bear v. 
Waxman, (1912) V.L.R., 292 ; 34 A.L.T., 6; 
18 A.L.R., 269. F.C., Madden, C.J., Hood 
and Cussen, JJ. 



293 



COSTS. 



294 



VIII. — Recovery of Costs. 

See also, Execution. 

(o) Attachment of the Person. 

Order XLH., rr. 3, 6, 7, 17 (Rules of 1884)— 
Order XLIV., r. 2 (Rules of 1884)— Attachment 
— Disobedience of order to pay costs — Im- 
prisonment of Fraudulent Debtors Act 1890 
(No. 1100)— Whether power to attach for 
disobedience affected by.] — Notwithstanding 
the provisions of the Imprisonment of Fraudu- 
lent Debtors Act 1890 the Court has power 
to issue a writ of attachment for disobedience 
of its order to pay costs. Re Sandilands ; 
Ex parte Browne, 4 V.L.R. 'L.), 318, followed. 
Pope v. Peacock, (1906) V.L.R., 667 ; 28 
A.L.T., 63 ; 12 A.L.R., 440. Hodges, J. 

(6) Solicitor's IAen. 

Solicitor to trustee of deceased person's 
estate — Lien for costs.] — A solicitor to the 
trustee under a will is not a solicitor to 
the estate, and therefore does not acquire 
a lien over the trust property for his costs. 
In re Luke Nolan, deceased (No. 2), 30 
A.L.T. (Supplement), 1 ; 14 A.L.R. (C.N.), 
25. Judge Moule (1908). 

Court of Mines — Company in liquidation — 
Delivery up of Company's property to the 
liquidator — Costs — Solicitor's lien — Com- 
panies Act 1890 (No. 1074), sec. 274.]— An 
order made under sec. 274 of the Companies 
Act 1890 for delivery up to the liquidator 
of any books, documents or property belong- 
ing or relating to the company in tho posses- 
sion of a solicitor deprives the solicitor of his 
lien thereon for costs. Re Mount Murphy 
Wolfram Co. No Liability, 29 A.L.T (Sup- 
plement), 19; 14 A.L.R. (C.N.), 6. Judge 
Box (1908). 

(c) Payment of Costs a Condition. 

County Court — Chamber application — Costs 
of, whether payment should be made a condi- 
tion precedent.] — Payment of costs of a 
Chamber application will not be made a 
condition precedent. Ambler & Co. Pro- 
prietary Ltd. v. Clayton, 29 A.L.T. (Supple- 
ment), 28 ; 14 A.L.R., 17. Judge Eagleson 
(1908). 



Insolvency — Costs of trustee, what are — 
— Costs of examination summons — Insolvency 
Act 1897 (No. 1513), sec. 93— Insolvency 
Act 1903 (No. 1836), sec. 16.]— The trustee's 
costs of an examination summons are " costs, 
charges, expenses, &c." of the trustee within 
the meaning of sec. 93 of the Insolvency Act 
1897, as amended by sec. 16 of the Insolvency 
Act 1903. In re Ostberg, 33 A.L.T. (Supple- 
ment), 10 ; 17 A.L.R. (C.N.), 28. Judge 
Moule (1911). 

Court of Mines — Company in liquidation — 
Delivery up of Company's property to the 
liquidator — Costs — Solicitor's lien — Companies 
Act 1890 (No. 1074), sec. 274.]— An order 
under sec. 274 of the Companies A<:t 1890 
for delivery to the liquidator of any books, 
documents or property belonging or relating 
to the Company in the possession of a solicitor 
cannot be made conditionally on the payment 
of, or on the undertaking by the liquidator to 
pay the solicitor's costs. Re Mount Murphy 
Wolfram Co. No Liability, 29 A.L.T. (Sup- 
plement), 19 ; 14 A.L.R. (C.N.), 6. Judge 
Box (1908). 

Insolvency — Certificate of discharge — Trus- 
tee's costs, dispute as to — Practice — Applica- 
tion for Judge's signature to certificate — Insol- 
vency Act 1890 (No. 1102), sec. 145— Insol- 
vency Act 1897 (No. 1513), sec. 93 — Insolvency 
Act 1903 (No. 1836), sec. 16.]— See Insol- 
vency. In re Ostberg, 33 A.L.T. (Supple- 
ment), 10 ; 17 A.L.R. (C.N.), 28. 

(d) Priority of Payment. 

Taxed costs incurred in action — Party and 
Party costs — Costs of warrant of execution to 
satisfy a judgment of the County Court — Party 
and party costs — Effect of sequestration on 
warrant of execution — Expenses of execution 
— prior to sequestration — Insolvency Act 1890 
(No. 1102), sec. 77— County Court Rules 1891, 
r. 441.] — The term " taxed costs " in sec. 77 
of the Insolvency Act 1890 refers to costs 
taxed in the ordinary way between party and 
party, and does not include the costs of 
execution of a County Court judgment 
other than the costs of issuing the warrant, 
and, perhaps, the bailiff's fee for executing it. 
In re Luke Nolan, deceased (No. 1), 29 



295 



COSTS! 



296 



A.L.T. (Supplement), 31 ; 14 A.L.R. (C.N.), 
21. Judge Moule (1908). 

Insolvency Act 1890 (No. 1102), sec. 123 
(iii.)— Insolvency Act 1897 (No. 1513), sec. 113 
— Sequestration of estate of deceased person — 
Testamentary expenses incurred by the repre- 
sentative of a deceased person in or about the 
debtor's estate — Right of trustee to payment 
as a preferential debt.] — See Insolvency. 
In re Luke Nolan, deceased (No. 2), 30 
A.L.T. (Supplement), 1 ; 14 A.L.R. (C.N".), 25. 
Judge Moule. 

" Taxed costs incurred in an action " — A 
preferential debt — Insolvency Act 1890 (No. 
1102), sees. 77, 115, 123 (3).]— -See Insol- 
vency. In re Luke Nolan (No. 1), 29 
A.L.T. (Supplement), 31 ; 14 A.L.R. (C.N.), 
21. Judge Moule (1908). 

Mines Act 1897 (No. 1514), sec. 168— 
Mining company — Winding up — Distribution 
of assets — Priorities—" Costs of administra- 
tion or otherwise," what are.] — The phrase 
" costs of administration or otherwise " in 
sec. 168 of the Mines Act 1897 means some- 
thing similar to " costs of winding up." 
In re Egerton and Gordon Consolidated 
Gold Mines, No Liability, (1908) V.L.R., 
526 ; 30 A.L.T., 27 ; 14 A.L.R., 372. Mad- 
den, G.J. 

Companies Act 1890 (No. 1074), sec. 104— 
Assets insufficient to satisfy liabilities — Costs, 
charges and expenses of winding-up — Order 
as to priority of payment of.] — See Company. 
In re People's Daily Co-operative Newspaper, 
&<:, Co. Ltd., (1907) V.L.R., 666; 29 
A.L.T., Ill : 13 A.L.R., 504. 

(e) Indemnity. 

Insolvency — Costs of examination summons 
— Trustee indemnified against by creditor — 
Whether trustee entitled to be paid by insolvent 
or out of estate — Insolvency Act 1897 (No. 
1513), sec. 111.] — Although a trustee holds 
an indemnity from » creditor against the 
costs of an examination summons, he is 
entitled (unless the Court otherwise order) 
to have them paid by the insolvent or out 
of the insolvent estate. In re Ostbery, 33 
A.L.T. (Supplement), 10 ; 17 A.L.R. (C.N.), 
28. Judge Moule (1911). 



Costs — Appeal in administration' "action — 
Costs of trustee — Whether trustee entitled to 
be indemnified out of the estate.] — Trustees 
who have been guilty of breaches of trust 
in respect of which an order has been made 
in an administration action by a Court of 
first instance, but who, in respect of the 
matters in question upon an appeal from that 
order, are blameless, are entitled to be 
indemnified out of the estate for their costs of 
such appeal. Nissen v. Grunden, (1912) 14 
C.L.R., 297 ; 18 A.L.R., 254. H.C., Griffith, 
C.J., Barton and Isaacs, J J. 

Trustee — Life tenant and remainderman — 
Corpus and income — Costs paid by trustee 
under order of High Court — Decision of High 
Court reversed on appeal by one party to 
Privy Council — Effect on rights of parties not 
appealing — Indemnity of trustees — Rights of 
assignee of life tenant.] — <See Tenant fob 
Life and Remainderman. Cock v. Aitken, 
(1912) 15 C.L.R., 373 ; 18 A.L.R., 576. 

(/) Other Points. 

Local Government Act 1903 (No. 1893), sees. 
324 to 328, 340 to 343— Rate, interest, and 
costs, how far a charge upon land — Costs of 
removing an order from Petty Sessions to 
Supreme Court.] — See Local Government. 
Mayor, <fcc, of Malvern v. Johnson, 28 
A.L.T. (Supplement), 7 ; 12 A.L.R. (C.N.), 
28. 

Trustee — Bringing land under Transfer of 
Land Act 1890 — Mortgage of trust estate to 
pay costs of — Breach of trust.] — See Trusts 
and Trustees. Crout v. Beissel, (1909) 
V.L.R., 207 ; 30 A.L.T., 185 ; 15 A.L.R., 
143. 



COUNCILLOR. 

See LOCAL GOVERNMENT. 



COUNSEL. 

See also, Costs ; Solicitor and Client. 

Income Tax Act 1895 (No. 1374), sec. 27— 
Special case for opinion of Supreme Court — 
Number of counsel who may be heard.] — As a 



297 



COUNSEL— COUNTY COURT. 



298 



general rule one counsel only will be heard 
on the argument of a special case. Re In- 
come. Tax Acts, (1907) V.L.R., 358. F.C. 

Costs — Originating summons — King's Coun- 
sel appearing with junior — Certificate for 
counsel.] — See Costs. In re Jamieson ; 
Christensen v. Jamieson, (1907) V.L.R., 
103 ; 28 A.L.T., 138 ; 12 A.L.R., 570. 

Notes of evidence — Duty of junior counsel 
to take — Typing notes — Unusual expense.] — 
Where junior counsel's fees are allowable on 
taxation, it is his duty and that of the clerk 
in attendance to take sufficient notes of 
the evidence given at the hearing. A sum 
paid for typing notes is, accordingly, an 
unusual expense. Be Duke's Will, (1907) 
V.L.R., 632; 29 A.L.T., 50; 13 A.L.R., 
477. Gussen, J. 

Order XXXIX. (Rules of 1906)— New trial- 
Misconduct of counsel.] — Misconduct of coun- 
sel, where such conduct has taken place in 
open Court, is not a ground for granting a new 
trial. David Syme db Co. v. Swinburne, 10 
C.L.R., 43 ; 16 A.L.R., 93. H.C., Griffith, 
C.J., Barton, O'Connor and Higgins, J J. 
(1909). 

Legal Profession Practice Act 1891 (No. 
1216), — Solicitor, responsibility of — Whether 
protected by counsel's advice.] — Quaere, 
whether counsel's advice is any protection to 
a solicitor since the Legal Profession Practice 
Act 1891, even on points of law. Garrick v. 
Garrick ; Sutton, co-respondent, (1908) V.L.R., 
420 ; 30 A.L.T., 21 ; 14 A.L.R., 312. Hood, 
J. 

Justices Act 1890 (No. 1105), sec. 77 (11)— 
Ordering witnesses out of Court at request 
of party — Discretion of Justices — Counsel and 
solicitor of opposite party subpoenaed as 
witnesses — Permission to remain in Court, 
effect of.] — See Evidence. Barry v. Cullen, 
(1906) V.L.R., 393; 27 A.L.T., 227; 12 
A.L.R., 235. 

Clause empowering trustees to act on advice 
of counsel — Liability of trustees so acting.] — 

See Will. In . the Will of Thompson ; 
Brahe v. Mason, (1910) V.L.R., 251 ; 31 
A.L.T., 210 ; 16 A.L.R., 215. 



COUNTY COURT. 



COL. 



I. Jurisdiction 


. 299 


II. Practice 


. 301 


(a) service . . 


301 


(6) proceedings at chambers 




GENERALLY 


302 


(c) UNDER SECTION 64 OF THE ACT 303 


(d) PARTIES . . 


304 


(e) SPECIAL DEFENCES ; PAYMENT 


INTO COURT 


305 


(/) INTERROGATORIES AND DIS 


- 


COVERY OF DOCUMENTS 


. 307 


(g) EVIDENCE 


. 309 


[h) JURIES 


309 


(i) LOCAL GOVERNMENT ACT, PRO 




CEEDINGS UNDER 


311 


(j) INTERPLEADER 


311 


(k) IMPRISONMENT OF FRAUDULENT 


DEBTORS ACT 


312 


(I) ENFORCEMENT OF JUDGMENTS . 


313 


(m) STAY OF PROCEEDINGS . . 


315 


(n) NEW TRIAL 


316 


(o) COSTS 


318 


( 1 ) Jurisdiction 


318 


(2) Amount Recovered not Ex 


- 


ceeding Ten Pounds 


318 


(3) Taxation 


320 


(a) Scale of Costs . . 


320 


(i.) Under Scale in 


Rules under the 


Act 


320 


(ii. ) In Other Cases . 


321 


(6) Costs of Appeal 


322 


(c) Instructions ; Attend 




ances on Client ; Pre 




paration of Documents 


322 


(d) Attending Court on 




Trial 


324 


(c) Perusing 


324 


(/) Counsel's Fees ; Draw 




ing and Engrossing 




Brief ; Conference . . 


324 


(g) Witnesses' Expenses . . 


326 


(h) Jury Fees and Ex- 




penses 


326 


(i) Costs of Warrants 


326 


III. Remitting Actions to County 




Court 


327 


IV. Appeals ; Certiorari ; Mandamus 


328 


V. Other Points 


330 



299 



COUNTY COURT. 



300 



I. JtmiSDICXION. 

Contract — Sale of Goods to be shipped 
abroad — " C.i.f." contract — Place of delivery 
— County Court practice — Jurisdiction — Part 
of cause of action arising out of jurisdiction.] — 
A contract for the sale of timber was made 
in Melbourne between the plaintiff, a Mel- 
bourne firm, and the defendants, who were 
described as of Melbourne, but who had 
their principal place of business in New York, 
with a branch house in Melbourne. The 
contract provided that the price should be 
" £18 5s. per 1,000 feet super, c.i.f. Melbourne," 
that the terms should be " sellers' New York 
house on shipment to draw on buyers at 90 
days' sight," that shipment should be " at 
New York by sailing vessel — May ship- 
ment," and that " sellers reserve the right 
to insure against war risk, the cost of which 
to be paid for by buyers in addition to the 
price above-named." Held, that the place 
of delivery under the contract was New York> 
and that, therefore, as the whole cause of 
action did not arise in Victoria, the County 
Court had no jurisdiction in an action for 
non -delivery of the timber in accordance 
with the contract. Bowden v. Little, (1907) 
4 C.L.E., 1364; 13 A.L.R., 689, followed. 
Croolee v. Smith, (1878) 4 V.L.R. (L.), 95, 
and Brooks, Robinson <fc Co. v. Smith, 
(1890) 16 V.L.R., 245; 11 A.L.T., 168, 
applied. H. Beecham v. R. W. Cameron & 
Co., (1910) V.L.R., 19 ; 31 A.L.T., 100 ; 
15 A.L.R., 598. F.C., Madden, C.J., Hood 
and Cussen, J J. 

County Court — Jurisdiction — Contract for 
sale of goods — Breach in Victoria — Cause 
of action — Quantum of damages — County 
Court Act 1890 (No. 1078), sec. 6.]— 
Plaintiff, a Melbourne resident, contracted 
in Melbourne with F., another Melbourne 
resident, for the sale of certain peas to be 
delivered f.o.b. Tasmania. Defendant, when 
required to do so, refused to name a ship 
to take delivery and announced his intention 
of not accepting the goods. Plaintiff brought 
an action in the County Court at Melbourne 
for this breach of contract. Held, that the 
County Court had jurisdiction, as the whole 
cause of action arose in Victoria, the breach 



being the failure in Melbourne to nominate 
a ship as the defendant was bound to do 
under the contract. The quantum of dam- 
ages is no part of the cause of action, and it 
was immaterial on the question of jurisdiction 
that evidence of the price of peas in Tasmania 
had to be given to fix the damages. Railton 
v. Fleming, (1912) V.L.R., 113 ; 33 A.L.T., 
180 ; 18 A.L.R., 24. F.C., a'BeckeU, Hodges 
and Cussen, J J. 

County Court — Jurisdiction — Libel circul- 
ating throughout Australia — Claim for dam- 
ages and injunction.] — Semble. — An action 
cannot be brought in the County Court where 
the plaintiff's claim is for damages and an 
injunction in respect of the publication of a 
libel in a newspaper circulating throughout 
Australia. Harrison San Miguel Pro- 
prietary Ltd. v. Alfred Lawrence & Co., 
(1912) V.L.R., 367 ; 34 A.L.T., 88 ; 18 
A.L.R., 394. Madden, C.J. 

County Court Act 1890 (No. 1078), sees. 
61, 64 — Fourth and Fifth Schedules— Practice 
— Liquidated money demand — Ordinary sum- 
mons — Necessity for special summons — 
Amendment.] — Where for a liquidated money 
demand an ordinary summons in the form of 
the Fourth Schedule of the County Court Act 
1890, pursuant to sec. 61 of that Act, is issued, 
and both parties appear at the hearing, the 
Judge should not, on ' the objection of the 
defendant that the summons should be in 
the form of the Fifth Schedule pursuant to 
section 64, strike out the case, but should 
proceed to hear it, either with or without an 
amendment of the summons. Best v. Best, 
(1908) V.L.R., 1 ; 29 A.L.T., 82 ; 13 A.L.R., 
608. F.C., Madden, C.J., Hodges and Hood, 
JJ. 

Judgment recovered in Petty Sessions — 
Death of complainant — Enforcement of judg- 
ment by executors — County Court action.] — 

Semble. — Where an order is made by Court of 
Petty Sessions for the payment to the com- 
plainant of a sum of money, which remains 
unsatisfied at his death, the complainant's 
executors may sue in the County Court on 
such order. Goodman v. Jonas, (1909) 
V.L.R., 307 ; 31 A.L.T., 16 ; 15 A.L.R., 308. 
Cussen, J. 



301 



COUNTY COURT. 



302 



County Court Act 1890 (No. 1078), sees. 
48, 94 — No jurisdiction to try action — Costs, 
whether Court may award.] — The power con- 
ferred by sec. 94 of the County Court Act 
1890 to order a case to be struck out for 
want of jurisdiction and to award costs 
extends to all cases in which the Court has 
no jurisdiction, and is not limited to those 
cases in which under sec. 48 the want of 
jurisdiction might be cured by consent of the 
parties. Harrison San Miguel & Co. v. 
Maddern, (1905) V.L.R., 400; 26 A.L.T., 215; 
11 A.L.R., 178, over-ruled. The King v. 
Beecham & Co., Ex parte Cameron, (1910) 
V.L.R., 204 ; 31 A.L.T., 183 ; 16 A.L.R., 
173. F.C., Madden, C.J., a' Beckett and 
Cussen, J J. 

County Court Act 1890 (No. 1078), sec. 121 
(1) — Equitable jurisdiction — Action by credi- 
tor of deceased person against beneficiaries — 
Jurisdiction of County Court.] — Even though 
the assets of the estate of a deceased person 
have been distributed among the bene- 
ficiaries under his will, County Courts have 
jurisdiction under sec 121 (1) of the County 
Court Act 1890 to hear an action brought 
against such beneficiaries by a creditor of the 
deceased claiming payment of the debt due 
to him by the deceased. Smart v. Buchanan, 
31 A.L.T. (Supplement), 8 ; 15 A.L.R. (C.N.), 
25. Judge Chomley (not without doubt) 
(1909). 

Instruments Act 1890 (No. 1103), sec. 142— 
Bill of sale — Caveat — Tender of amount due 
to caveator — Refusal to accept — Removal of 
caveat — Jurisdiction of Judge to order.] — 
Where the grantor of a bill of sale had tendered 
to a caveator the amount of his debt, which 
the caveator refused to accept. Held, that 
the Judge had jurisdiction under sec. 142 
of the Instruments Act 1890 to order the 
removal of the caveat. In re Coburn, 28 
A.L.T. (Supplement), 3; 12 A.L.R. (C.N.), 
17. Judge Eagleson (1906). 

II. — Practice. 

(a) SERVICE. 

Practice— Service of summons — Time — 
Whether time for service may be abridged — 
Defendant, whether a party to action before 



service of plaint summons.] — A Judge of the 
County Court has no power to abridge the 
time fixed by r. 11 of the County Court Rules 
1891 for the service of an ordinary plaint 
summons. Until served with such summons 
the person named therein as defendant is 
not a party to the action. Newnham v. 
Lobb, 27 A.L.T. (Supplement), 15 ; 12 A.L.R. 
(C.N.), 10. Judge Box (1906). 

(6) PROCEEDINGS AT CHAMBERS GENERALITY. 

Forms — Rules — Effect thereof — County 
Court Act 1890 (No. 1078), sec. 148.]— The 
forms set out in the schedule of forms are 
part of the Rules and have the same force 
as the Rules themselves. By virtue of sec. 
148 of the County Court Act 1890 these 
Rules have the same force and effect as an 
Act of Parliament. Devlin v. Tredrea, 30 
A.L.T. (Supplement), 19 ; 14 A.L.R. (C.N ), 
42. Judge Chomley (1908). 

Practice — Country cause — Summons in 
Chambers — When it may be heard in Mel- 
bourne — Rule 210.] — A Chamber summons 
issued during the progress of a country cause 
cannot be heard in Melbourne, unless a 
Judge has previously directed such summons 
to be made returnable in Melbourne. Per- 
petual Executors and Trustees Association of 
Australia v. Watts, 27 A.L.T. (Supplement), 
12 ; 12 A.L.R. (C.N.), 6. Judge Eagleson 
(1906). 

Instruments Act 1890 (No. 1103), sec. 142— 
Bill of sale — Removal of caveat — Summons, 
form of.] — An objection, that the summons 
in an application for an order for the removal 
of a caveat lodged against the filing of a 
bill of sale did not call upon the caveator 
to show cause why the caveat should not be 
removed, was overruled. In re Coburn, 28 
A.L.T. (Supplement), 3 ; 12 A.L.R. (C.N.), 
17. Judge Eagleson (1906). 

County Court — Filing of documents — 
Notice of an application for an extension of 
time within which to appeal — County Court 
Rules of 1891, r. 375.] — Notice of an applica- 
tion for an extension of time within which 
to appeal, should be in the proper form and 
filed with the Registrar of the Court. Shan- 



303 



COUNTY COURT. 



304 



ahan v. Nicholls, 27 A.L.T. (Supplement), 8 ; 
11 A.L.R. (C.N.), 65, followed. Ambler & 
Co. Proprietary Ltd. v. Clayton, 29 A.L.T. 
(Supplement), 28 ; 14 A.L.R. (C.N.), 17. 
Judge Eagleaon (1908). 

County Court— Chamber application — Costs 
of, whether payment should be made condition 
precedent.] — Payment of costs of a Chamber 
application will not be made a condition 
precedent. Ambler & Co. Proprietary Ltd. 
v. Clayton, 29 A.L.T. (Supplement), 28 ; 14 
A.L.R. (C.N.), 17. Judge Eagleson (1908). 

(c) UNDER SECTION 64 OP THE ACT. 

County Court Act 1890 (No. 1078), sec. 
64 (3), (4) — Summons for final judgment — 
Issue before giving of notice of intention to 
defend.] — Summonses under sec. 64 (4) of the 
County Court Act 1890 must not be issued 
before the notice of intention to defend has 
been given. Densham v. Quirk, 28 A.L.T. 
(Supplement), 6; 12 A.L.R. (C.N.), 22. 
Judge Eagleson (1906). 

Practice — Liberty to sign final judgment — 
The summons should be filed with the Regis- 
trar of the Court prior to the hearing.] — 

Maekay v. Burley, 27 A.L.T. (Supplement), 
10 ; 12 A.L.R. (C.N.), 2. Judge Chomley 
(1905). 

Summons for final judgment — Filing with 
Registrar— Rule 209 (Rules of 1891).]— A 

summons in an application for leave to sign 
final judgment should, under r. 209, be filed. 
Densham v. Quirk, 28 A.L.T. (Supplement), 
6; 12 A.L.R. (C.N.), 22. Judge Eagleson 
(1906). 

County Court Act 1890 (No. 1078), sees. 5, 
64 — Pinal judgment, application for — Objec- 
tion to Court — Nearer Court to defendant and 
cause of action.] — The objection which may 
be raised by a defendant by virtue of sec. 5 
of the County Court Act 1890 as to the Court 
in which the plaint was entered, can be raised 
only at the trial of the action. Therefore, 
such an objection is no answer to an applica- 
tion for final judgment under sec. 64 of that 
Act. Pearson, Rowe, Smith & Co. v. 
Crispin, 32 A.L.T. (Supplement), 6 ; 16 
A.L.R. (C.N.), 14. Judge Chomley (1910). 



County Court Act 1890 (No. 1078), sec. 146, 
148 — Rules 82, 416 — Form 9 — Practice- 
Defective summons — Power of amendment.] — 

A County Court Judge has jurisdiction to 
allow amendment of a summons for final 
judgment where the same has been issued 
in the terms of Form 9 of the Schedule of 
Forms to the County Court Pules 1891, 
although such summons does not comply 
with the requirements of r. 82 of the said 
Rules. Devlin v. Tredrea, 30 A.L.T. (Sup- 
plement), 19 ; 14 A.L.R. (C N.), 42. Judge 
Chomley (1908). 

County Court Act 1890 (No. 1078), sees. 
64, 98 — Special summons — Judgment signed 
on default by defendant — Application in 
Chambers — Order for payment by instalments.] 
— Under sec. 98 of the County Court Act 1890 
a Judge in Chambers has power to make 
an order that a judgment debtor be at liberty 
to pay by instalments the judgment debt, 
where, on a summons under sec. 64 of that 
Act, the plaintiff has signed judgment in 
default of notice of intention to defend. 
Carlton and United Breweries Proprietary 
Ltd. v. Sheahan, 30 A.L.T. (Supplement), 20 ; 
15 A.L.R. (C.N.), 5. Judge Eagleson (1909). 

County Court Act 1890 (No. 1078), sec. 64 
(4) — Summons for final judgment — Supple- 
mentary affidavit.] — On the return of a 
summons for final judgment, an application 
by the plaintiff to be allowed to file a further 
affidavit was refused. Wool] v. Bae, 28 
A.L.T. (Supplement), 5 ; 12 A.L.R. (C.N.), 
18. Judge Neighbour (1906). 

(d) PARTIES. 

County Court Act 1890 (No. 1078), sec. 133 
— Action for personal injuries — Judgment for 
plaintiff — Appeal from refusal of new trial — 
Death of plaintiff pending appeal — Survival of 
action to executor — Executor added as re- 
spondent to appeal.] — The plaintiff had 
succeeded in the County Court in an action 
for damages for personal injuries. Judg- 
ment was entered for her. The defendant 
moved for a new trial, which was refused, 
and then appealed from such refusal. Before 
the appeal came on for hearing the ' plaintiff 
died. Held, that the maxim actio- personalis 



305 



COUNTY. COURT. 



306 



moritur cum persona did not apply, and that 
the rights under the judgment survived 
to her executor, who was added as a party 
respondent to the appeal. Farrands v. 
Mayor, efcc, of Melbourne, (1909) V.L.R., 
531 ; 31 A.L.T., 78 ; 15 A.L.R., 520. F.C., 
, Madden, G.J., Hodges and Cussen, JJ. 

County Court Act 1890 (No. 1078), sec. 60 
— County Court Rules 1891, r. 107 — Infant, 
action by — Appointment of next friend.] — A 

County Court has no power to allow the 
appointment of a next friend during the 
course of the trial of an action brought by an 
infant in his own name. Thompson v. 
Peach, 28 A.L.T. (Supplement), 10 ; 13 
A.L.B. (C.N.), 5. Judge Box (1906). 

Local Government Act 1903 (No. 1893), 
sees. 341, 342— County Court Rules 1891, r. 
103 — Rates — Charge on land — Proceedings to 
enforce — Death of owner — Parties — Executor 
of executor — Order for sale — Title.] — See 
Local Government. Moorabbin, Shire of 
v. Soldi, (1912) V.L.R., 389 ; 34 A.L.T., 93 ; 
18 A.L.R., 493. 

(e) SPECIAL DEFENCES ; PAYMENT INTO COURT. 

County Court — Practice — Slander — Special 
defence that slander is true — Limitation of 
such defence at trial to part only of the words 
complained of.] — The defendant, who had 
given notice that he relied on the defence 
that the slander complained of was true in 
substance and in fact, was allowed at the 
trial to limit such defence to part only of 
the words complained of, and as to the whole 
of such words to set up the defence that they 
were not spoken and published of and con- 
cerning the plaintiff. Griffiths v. Barry, 27 
A.L.T. (Supplement), 12 ; 12 A.L.R. (C.N.), 9. 
Judge Johnston (1906). 

County Court Act 1890 (No. 1078), s. 51— 
County Court Rules 1891, rr. 155, 424— 
Wrongs Act 1890 (No. 1160), sec. 3— Remitted 
action— Action for libel— Notice of special 
defence under Wrongs Act 1890 — Enlargement 
of time for serving and filing such notice — 
Power of Court to grant.] — Where an action 
for libel has been remitted under section 51 
of the- County Court Act 1890 to be tried in 
a County Court, such Court has power under 



rule 424 of the County Court Rules 1891 to 
allow the defendant to serve and file a notice 
of special defence under the Wrongs Act 1890 
after the expiration of the time allowed or 
appointed for so doing by rule 155. Bayne 
v. Wilson & Mackinnon, 31 A.L.T. (Supple- 
ment), 2 ; Judge Box (1909). 

County Court Act 1890 (No. 1078), s. 66— 
Special defence, notice of — Rates — Enforce- 
ment of charge upon land — Local Government 
Act 1903 (No. 1893), ss. 324 to 328, 340 to 
343.] — Section 66 of the County Court Act 
1890 requiring notice of special defences 
applies to actions for enforcing charges upon 
land for rates. Mayor, &c. of Malvern v. 
Johnson, 28 A.L.T. (Supplement), 7 ; 12 
A.L.R. (C.N.), 28. Judge Box (1906). 

County Court Act 1890 (No. 1078), s. 62— 
County Court Rules 1891, rr. 197, 200— 
Payment into Court — Several claims or causes 
of action — Payment into Court on one claim 
or cause of action only with denial of liability 
— Taking out of Court the amount paid in — 
Abatement of action.] — Where S defendant, 
under section 62 of the County Court Act 
1890 and rule 197 of the County Court Rules 
1891, pays into Court a sum of money in 
full satisfaction of one of several claims or 
causes of action set out in the particulars of 
plaintiff's demand in the action, with a 
denial of liability, the plaintiff is not entitled 
under rule 200 or at all to take out of Court 
before the determination of the action the 
amount so paid in unless he accepts the same 
in full satisfaction of all such claims or 
causes of action. Kelly v. Trimble, 31 A.L.T. 
(Supplement), 1 ; 15 A.L.R. (C.N.), 7. Judge 
Chomley (1909). 

County Court Act 1890 (No. 1078), s. 62— 
County Court Rules 1891, rr. 197, 200— 
Payment into Court — Action against defen- 
dants as executors and as beneficiaries — 
Payment into Court by executors — Acceptance 
in satisfaction of claim against executors — 
Survival of claim against beneficiaries.] — 
Where the defendants in an action who are 
sued as executors and also as beneficiaries, 
pay money into Court under section 62 of 
the County Court Act 1890 and rule 197 of the 
County Court Rules 1891 as executors 



307 



COUNTY COURT. 



308 



merely, the action does not abate as against 
them as beneficiaries on the plaintiff electing 
to accept and taking out of Court such money 
in full satisfaction of his claim against them 
as executors. Smart v. Buchanan, 31 A.L.T. 
(Supplement), 8; 15 A.L.R. (C.N.), 25. 
Judge Chomley (1909). 

County Court Rules 1891, rr. 197, 199— 
Payment into Court with a denial of liability 
— Delay of plaintiff in furnishing particulars — 
Payment after expiration of prescribed time.] 
— Where the plaintiff failed to deliver par- 
ticulars of his claim until after the expira- 
tion of the time prescribed for payment of 
money into Court. Held, that the defen- 
dant was entitled to wait till the further 
particulars were delivered before deciding 
whether or not to pay money into Court, and 
that he should be allowed to pay money into 
Court with a denial of liability although the 
prescribed time had expired. Armstrong v. 
Cuming Smith & Co. Proprietary Ltd., 29 
A.L.T. (Supplement), 17; 13 A.L.R. (C.N.), 
31. Judge $ox (1907). 

(/) INTERROGATORIES AND DISCOVERY OF 
DOCUMENTS. 

County Court Act 1890 (No. 1078), ss. 81, 
148 — Infant, whether interrogatories may be 
administered to — Rules of Supreme Court 
1906, Order XXXI., r. 29.]— A party to an 
action in the County Court cannot object 
to answer interrogatories delivered under 
section 81 of the County Court Act 1890 
merely on the ground of infancy. Order 
XXXI., r. 29 (Supreme Court Rules 1906) 
applies. Brock v. Victorian Railways Com- 
missioners, 29 A.L.T. (Supplement), 3 ; 13 
A.L.R. (C.N.), 21. Judge Johnston (1907). 

Interrogatories — Form of order — County 
Court Act 1890 (No. 1078), sec. 81 (1).]— 
The following form of order (omitting formal 
parts) was settled by His Honor Judge 
Eagleson — " I do order that the above-named 

to deliver to the the interrogatories 

in writing, a copy of which is hereunto 

annexed marked A, and that the do 

within seven days from the service hereof 
answer the said interrogatories as prescribed 
by section 81 of the County Court Act 1890." 



Spence v. Simpson, 33 A.L.T. (Supplement), 

11 ; 18 A.L.R. (C.N.), 1. (1912). 

Interrogatories — Form of order — An order 
directing a party to answer interrogatories 
should set out specifically the time for answer 
ing — It is not sufficient if the order merely 
directs the party to answer " as prescribed 
by section 81 of the County Court Act 1890."] 
— Crouch v. Victorian Railways Commis- 
sioners, 27 A.L.T. (Supplement), 11; 12 
A.L.R. (C.N.), 2. Judge Box (1905). 

Interrogatories — Order for interrogatories, 
form of — " Upon reading the interrogatories." ] 
— An order granting leave to deliver inter- 
rogatories should not state that it was made 
" upon reading the interrogatories." Naylor 
v. Kelly, 27 A.L.T. (Supplement), 14 ; 12 
A.L.R. (C.N.), 17. Judge Box (1906). 

County Court Act 1890 (No. 1078), s. 81— 
Interrogatories — Leave to deliver— Application 
by solicitor's clerk — Form of order.] — Where 
on the application of a solicitor's clerk leave 
is granted to deliver interrogatories, the 
order should not state that it was made 
after hearing the solicitor. Gobetti v. Harris, 
28 A.L.T. (Supplement), 9; 12 A.L.R. 
(C.N.), 28. Judge Eagleson (1906). 

Interrogatories — County Court Act 1890 
(No. 1078), s. 81 (4) — Shortening time for 
answering — Affidavit in support of applica- 
tion, necessity for.] — An application for an 
order that answers to interrogatories be 
filed within a period less than seven days 
should be supported by affidavit showing 
the necessity for curtailing the time. Wil- 
liams v. Alcoch, 28 A.L.T. (Supplement), 5 ; 

12 A.L.R. (C.N.). 18. Judge Eagleson (1906). 

Discovery— County Court Rules 1891, r. 
93 — Written communications by servant to 
master — Affidavit, sufficiency of— Privilege.] 

— The defendants by their affidavit of docu- 
ments refused to disclose certain written 
communications by one of their servants to 
another which defendants swore were made 
" for the purpose of assisting the defendants 
to resist or settle " anticipated litigation by 
the plaintiff. Held, that, though it was not 
in terms sworn that the communications were 
made to the defendants, it sufficiently appeared 



309 



COUNTY COURT. 



310 



that they were made for the purpose of 
reaching the defendants ultimately and that 
the communications were accordingly privi- 
leged. Connan v. Victorian Railways Com- 
missioners, 28 A.L.T. (Supplement), 19 ; 13 
A.L.R. (C.N.), 14. Judge Chomley (1907). 

County Court Act 1890 (No. 1078), s. 78— 
Production and inspection of documents — 
Materiality of documents — Objection to pro- 
duce — Rectification of affidavit in support.] 
— A party in his affidavit of documents 
made in pursuance of an order for discovery 
disclosed his possession of certain books, 
describing them in such a way that they 
appeared to be material to the case, but object- 
ing to produce them on the ground that he 
had been advised that the entries contained 
therein in no way related to the matters in 
dispute in the action and were not material 
to the other party's claim. Held, that 
leave to rectify the affidavit should not be 
given, and that the entries in the books 
should be produced. Choon v. Beeckam, 29 
A.L.T. (Supplement), 2 ; 13 A.L.R. <C.N.), 
18. Judge Box (1907). 

(g) EVIDENCE. 

County Court — Evidence — Action for trial 
before Judge and jury — Examination of wit- 
nesses before trial — Jurisdiction.] — In an 
action to be tried before a Judge and jury 
in the County Court at Palmerston an appli- 
cation was made in Melbourne to the Judge 
of County Courts, who was to preside at 
the trial, that in order to avoid the expense 
of taking them to Palmerston the evidence 
of certain witnesses might be taken before 
His Honor in Melbourne and be read to the 
jury at the trial. Held, that there was no 
jurisdiction to grant the application. Ferris 
v. Litchfield, 28 A.L.T. (Supplement), 14 ; 
13 A.L.R. (C.N.), 10. Judge Box (1907). 

(h) JUBTES. 

County Court Act 1890 (No. 1078), s. 89— 
Jury, right to trial by— Common law claim 
for liquidated amount — Claim for declaration 
that plaintiff entitled to that amount— Whether 
action equitable.] — In an action in the County 



Court, by the particulars of demand it was 
alleged that the parties agreed that the plain- 
tiff should prepare building plans for a com- 
petition to be sent in in the name of the 
defendant on condition that the plaintiff 
should receive one quarter of the prize or 
reward which the plans might win ; that the 
plans were prepared and sent in and won 
the prize or reward which was the amount 
of the architect's commission on the building 
estimated by the plaintiff at £720 ; and that 
the defendant refused to pay the plaintiff 
one quarter or any proportion of the com- 
mission or to return the plans. The plain- 
tiff claimed a declaration that he was en- 
titled to one quarter of the prize or reward, 
viz., £180, or alternatively return of the 
plans or damages £180 ; and he also claimed 
an injunction restraining the defendant 
from using the plans. Held, that the par- 
ticulars of demand set out no circumstances 
to which a Court of Equity attaches its 
jurisdiction, and that the claim for a declara- 
tion did not in itself make the claim an 
equitable one, and that the plaintiff was 
entitled by section 89 of the County Court 
Act 1890 to have the action tried by a jury. 
Biggs v. Kelly, 24 V.L.R., 402 ; 20 A.L.T., 
105 ; 4 A.L.R., 153 ; Barker v. Henty, 29 
V.L.R., 293 ; 25 A.L.T., 34 ; 9 A.L.R., 160 ; 
and Porteous v. Lindley, 28 V.L.R., 606 ; 
24 A.L.T., 139 ; 9 A.L.R., 25, distinguished. 
Annear v. Inskip, (1910) V.L.R., 235 ; 31 
A.L.T., 220 ; 16 A.L.R., 276. F.C., Madden, 
C.J., a' Beckett and Hood, J J. 

County Court Act 1890 (No. 1078), s. 89— 
Jury, right of party to trial by — Whether 
limited to cases where claim is for liquidated 
amount.] — Under section 89 of the County 
Court Act 1890 the right of either party to 
have the case tried by a jury is not limited 
to actions other than those for the recovery 
of unliquidated damages, but extends to 
all actions in which the amount claimed 
exceeds twenty pounds. The King v. 
Beecham <fc Co., (1910) V.L.R., 204; 31 
A.L.T., 183; 16 A.L.R., 173, applied. 
Annear v. Inskip, (1910) V.L.R., 235 ; 31 
A.L.T., 220 ; 16 A.L.R., 276. F.C., Madden, 
C.J., a' Beckett and Hood, J J. 



311 



COUNTY. COURT. 



312 



(i) LOCAL GOVERNMENT ACT, PROCEEDINGS 
UNDER. 

See also, Stay of Proceedings. 

Local Government Act 1903 (No. 1893), 
ss. 324 to 328, 340 to 343— Bates, interest and 
costs, how far a charge upon land — Costs of 
removing an order from Petty Sessions to the 
Supreme Court.] — The statutory charge over 
lands for the payment of municipal rates, 
interest and costs, includes the costs of re- 
moving an order for rates, interest and costs, 
obtained in a Court of Petty Sessions, into 
the Supreme Court and of issuing execution 
thereon. Mayor, tSsc. of Malvern v. Johnson, 
28 A.L.T. (Supplement), 7 ; 12 A.L.R. 
(C.N.), 28. Judge Box (1906). 

Local Government Act 1903 (No. 1893), s. 
708 — Notice of injury — Sufficiency — Place at 
which the accident took place — " Bridge " — 
" Approach."] — See Local Government. 
Daniel v. Benalla, President &c. of Shire of, 
(1906) V.L.R., 101 ; 27 A.L.T., 141 ; 12 
A.L.R., 16. 

(j) interpleader. 

County Court Rules 1891, r. 230— Action 
for commission — Claim by third party — 
Interpleader by defendant — Claims arising out 
of same subject matter — Whether claims for 
one and same debt.] — The plaintiff, an estate 
agent, sued the defendant for commission 
alleged to be due to him on the sale of a 
house of the defendant. Another estate 
agent claimed from the defendant commis- 
sion in respect of the same sale of the 
same house. Held, that the defendant was 
not entitled to relief by way of interpleader. 
Greatorex v. Shackle, (1895) 2 Q.D., 249, 
followed. Looker v. Mercer, 28 A.L.T. 
(Supplement), 15; 13 A.L.R. (C.N.), 13. 
Judge Eagleson (1907). 

Interpleader — Grounds of claim, statement 
of — Alternative and inconsistent grounds — 
Rule 236 (Rules of 1891).] — A claimant in 
an interpleader by bailiff under section 103 
of the County Court Act 1890 may rely upon 
alternative and inconsistent grounds of claim. 
Moorhead v. Chauncey, Hays (claimant), 
28 A.L.T. (Supplement), 7 ; 12 A.L.R. 



(C.N.), 27. Judge Eagleson (affirmed on 
appeal to Full Court) (1906) 

County Court Rules 1891, r. 236— Liter- 
pleader — Particulars of claim — Grounds of 
claim — Defective Particulars — Amendment.] 

— Where in his particulars of claim to goods 
seized by the County Court bailiff under a 
warrant of execution, the claimant merely 
states that he claims certain of such goods, 
" the same being my property,' - such par- 
ticulars of claim are defective as they do not 
set out the " grounds of claim " as required 
by Rule 236 of the County Court Rules 1891. 
An application made on the return of an 
interpleader summons, for leave to amend the 
particulars in notices of claim which were 
defective in this respect, was refused, and 
the claims were dismissed. Rogers v. Met- 
ters ; Metters (claimants), 34 A.L.T. (Sup- 
plement), 4; 18 A.L.R. (C.N.), 21. Judge 
Eagleson (1912). 

Interpleader — Grounds of claim — Order giv- 
ing leave to amend — Whether necessary to 
draw up.] — An order giving leave to amend 
the grounds of his claim in a claimant's 
particulars of claim need not be drawn up. 
Moorhead v. Chauncey, Hays (claimant), 
28 A.L.T. (Supplement), 7; 12 A.L.R 
(C.N.), 27. Judge Eagleson (1906). 

Interpleader summons — Affidavit in sup- 
port—County Court Rules 1891, r. 230.]— An 

interpleader summons under rule 230 of the 
County Court Rules 1891 should be supported 
by an affidavit. Looker v. Mercer, 28 A.L.T. 
(Supplement), 15 ; 13 A.L.R. (C.N.), 13. 
Judge Eagleson (1907). 

(k) imprisonment of fraudulent debtors 
act. 

Judgment summons — Proceedings in Su- 
preme Court — Judgment signed in Supreme 
Court on judgment of County Court — Damages 
awarded in action of tort — " Sum of money 
recoverable under any judgment of the 
Supreme Court " — Imprisonment of Fraudu- 
lent Debtors Act 1890 (No. 1100), ss. 4, 5— 
County Court Act 1890 (No. 1078), sec. 104 ; 
Ninth and Tenth Schedules.] — Where a judg- 
ment has been signed in the Supreme Court 



313 



COUNTY COURT. 



314 



under section 104 of the County Court Act 
1890 on a County Court judgment awarding 
damages in an action of tort, the amount for 
Which such judgment is signed is a " stun of 
money recoverable under any judgment of 
the Supreme Court " within the meaning of 
section 4 of the Imprisonment of Fraudulent 
Debtors Act 1890,, and a summons to debtor 
may be issued in the Supreme Court under 
section 4 and an order thereon may be made 
under section 5 (iv.) (d) of that Act. Tipper 
v. Walhen, (1911) V.L.R., 464; 33 A.L.T., 
85 ; 17 A.L.R., 543. Hood, J. 

— Imprisonment of Fraudulent Debtors Act 
1890 (No. 1100), sec. 15— The County Court 
Rules 1891, Schedule o£ Forms, Form 14 — 
Judgment summons — Statement of matters 
for examination of judgment debtor.] — A 
judgment summons should not include as 
matters as to which the judgment debtor is 
to be examined matters which are not intended 
to be relied on at the hearing. Lawson v 
Lang, 32 A.L.T. (Supplement), 4 ; 16 A.L.R. 
(C.N.), 9. Judge Eagleson (1910). 

Imprisonment of Fraudulent Debtors Act 
1890 (No. 1100), sec. 15— County Court Act 
1890 (No. 1078), sec. 31— Judgment debtor's 
summons — Service of judgment — Sufficiency 
of certified extract from Register.] — See 
Royal Finance Company v. Summers, 30 
A.L.T. (Supplement), 24 ; 15 A.L.R. (C.N.), 
9. Judge Box (1909). 

Imprisonment of Fraudulent Debtors Act 
1890 (No. 1100), s. 16— Sequestration of 
judgment debtor's estate — Liability contracted 
by fraud.] — See Debtors Act. Dairies v. 
Burley, 29 A.L.T. (Supplement), 18 ; 13 
A.L.R. (C.N.), 34. 

Imprisonment of Fraudulent Debtors Act 
1890 (No. 1100), sec. 16 (iv. A)— Liability 
contracted by fraud — Jurisdiction.] — The fraud 
referred to in section 16 (iv. a) of the Im- 
prisonment of Fraudulent Debtors Act 1890 
means fraud going to the whole subject 
matter of the judgment. Weeks v. Mayhem, 
28 A.L.T. (Supplement), 9 ; 12 A.L.R. 
(C.N.), 27. Judge Box. 

(I) ENFORCEMENT OP JUDGMENTS. 

The County Court Rules 1891, rr. 333, 334, 



335, 343 — Judgment that defendant deliver a 
certain chattel to plaintiff — Warrant of delivery 
under Rule 343 returned unsatisfied — Warrant 
of attachment, issue of — Jurisdiction.] — A 

County Court Judge has jurisdiction to order 
a warrant of attachment to issue under 
Rule 335 of The County Court Rules 1891 
when a warrant of delivery under Rule 343 
has proved ineffectual. Macrow & Sons Co. 
Proprietary Ltd. v. Davidson, 27 A.L.T. 
(Supplement), 11 ; 12 A.L.R. (C.N.), 9. 
Judge Johnston (1906). 

County Court Act 1890 (No. 1078), sec. 104 
— County Court judgment — Loss of certificate 
of judgment — Issue of duplicate certificate.] 

— Where a certificate of a County Court judg- 
ment, after having been granted and delivered 
by the Registrar to a judgment creditor 
under section 104 of the County Court Act 
1890, has not been filed in the Supreme Court, 
but has been lost, the County Court has 
jurisdiction to direct the Registrar to issue 
a duplicate certificate to such creditor. 
Ireland v. Floate, 28 A.L.T. (Supplement), 
16; 13 A.L.R. (C.N.), 13. Judge Eagleson 
(1907). 

Execution of judgment, difficulty in or 
about — Attendance and examination of judg- 
ment debtor— Rule 323 (Rules of 1891).]— 
Where a judgment debtor had in his posses- 
sion at the time of the trial of the action 
goods which could not be found when the 
warrant of execution upon the judgment 
was attempted to be enforced, Held, that 
under Rule 323 of The County Court Rules 
1891 the Judge had power to order the 
attendance and examination of the judgment 
debtor. Tye & Co. Proprietary Ltd. v. 
Presland, 28 A.L.T. (Supplement), 3 ; 12 
A.L.R. (C.N.), 17. Judge Eagleson (1906). 

Attachment of debts — Service of garnishee 
order nisi — Notice of order directed to be 
sent by telegram to the garnishee, to be 
followed by personal service upon him of a 
copy of such order— Order nisi made return- 
able before a Judge of a County Court sitting 
in a place other than where judgment ob- 
tained—County Court Act 1890 (No. 1078), 
sees. 108, 109.] — Greenwood v. Cormach, 



315 



COUNTY COURT. 



316 



Blakely (Garnishee), 28 AX.T. (Supple- 
ment), 5 ; 12 A.L.K. (C.N.), 24. Judge 
Eagleson (1906). 

(m) STAY OF PROCEEDINGS. 

Local Government Act 1903 (No. 1893), 
sees. 708, 710 — Non-compliance with con- 
ditions of section 708 — Whether application 
lor stay of action imperative.] — In order that 
a municipality may take advantage of the 
plaintiff's non-compliance with the condi- 
tions of section 708 it is not imperative that 
an application should be made under sec- 
tion 710 for a stay of the action. If no such 
application has been made the municipality 
may raise the defence of non-compliance at 
the trial of the action. Daniel v. Benalla, 
President, &c. of Shire of, (1906) V.L.R., 101. 
F.C., Madden, C.J., Holroyd and Hodges, 
JJ. 

Local Government Act 1903 (No. 1893), 
sees. 708, 710 — Notice of action against 
municipality — Failure to comply with con- 
ditions — Stay of action — Judge in Chambers 
— Jurisdiction.] — A Judge in Chambers has 
under section 710 of the Local Government 
Act 1903 a discretion, where the facts relat- 
ing to the injury its nature and extent and 
the consequent suffering are in dispute, to 
say that he will not stay the action at that 
juncture. In such a case it is for the Judge 
who presides at the trial, after hearing the 
evidence, to say whether the plaintiff has 
shown sufficient reason why he . was unable 
to give the notice required by section 708 (1). 
Leeder v. Ballarat East, Mayor dbc. of, 29 
AX.T. (Supplement), 6; 13 A.L.R. (C.N.), 
25. Judge Eagleson (1907). 

County Court — Action on insurance policy 
— Arbitration a condition precedent to right 
of action — Stay of proceedings — Adjournment 
— Jurisdiction — County Court Act 1890 (No. 
1078), sec. 71.] — An action was brought 
against the assurer by the person assured 
upon a policy of insurance which provided 
that the determination of any dispute or 
question by arbitration should be a condition 
precedent to the liability of the assurer and 
to the right of the assured to recover. Upon 
an application by the assurer for a stay of all 



proceedings. Held, that the trial of the action 
should, under section 71 of the County Court 

Act 1890, be adjourned until arbitration 
under the terms of the policy had taken place. 
Borrett v. Norwich and London Accident 

Insurance Association, 29 A.L.T. (Supple- 
ment), 1 ; 13 A.L.R. (C.N.), 22. Judge 

Chomley (1907). 

County Court Act 1890 (No. 1078), sees. 
68, 70, 71 — Discontinuance of action — Costs 
not paid — Subsequent action for same cause 
of action — Stay of proceedings until costs 
paid — Jurisdiction.] — A Judge of a County 
Court has power to stay an action until 
payment by the plaintiff of the costs ordered 
to be paid by him in a prior action for the 
same cause of action against the same defen- 
dant. Leeder v. Ballarat East, Mayor dbc. 
of, 29 A.L.T. (Supplement), 6 ; 13 A.L.R. 
(C.N.), 25. Judge Eagleson (1907). 

Stay of action — Notice of action, when 
necessary — Local Government Act 1903 (No. 
1893), sees. 491, 708 (1), (4), 710.]— Section 
708 refers only to accidents arising through 
the improper maintenance of roads. Accord- 
ingly, where the cause of action alleged was 
the negligence of a driver of a water-cart of 
the defendant municipality, an application 
to stay proceedings on the ground that no 
notice of action had been given was dismissed. 
Gordon v. Ballarat, Mayor <Ssc. of, 29 A.L.T. 
(Supplement), 4; 13 A.L.R. (C.N".), 19. 
Judge Johnston. 

(») NEW TRIAL. 

County Court — New trial — Notice of appli- 
cation served out of time — Refusal of Judge 
to enlarge time — Jurisdiction of Court of 
appeal to enlarge — Misdirection — No objection 
taken at trial — Jurisdiction of Judge to grant 
new trial — Refusal of Judge to grant new trial 
— Whether High Court will grant new trial 
— Infinitesimal hope of success if new trial 
granted— County Court Act 1890 (No. 1078), 
sec. 96— County Court Rules 188, 424.]— 
Assuming that the High Court and the Su- 
preme Court have jurisdiction to review the 
exercise by a Judge of County Courts of 
the discretion given him by Rule 424 of the 
County Court Rules 1891 to enlarge the time 



317 



COUNTY COURT. 



318 



for serving notice of an application for a 
new trial, and that a Judge of County Courts 
has jurisdiction under section 96 of the 
County Court Act 1890 to grant a new trial 
on the ground of misdirection in law where 
objection has not been taken at the trial to 
the misdirection (as to both of which ques- 
tions, quaere), the High Court will not grant 
a new trial where the Judge of County Courts 
has refused it and the party asking for it 
would, in the opinion of the Court, only 
have a problematical and infinitesimal hope 
of success if a new trial were had. Holford 
v. Melbourne Tramway and Omnibus Co. 
Ltd., (1909) V.L.R., 497; 29 A.L.T., 112; 
13 A.L.R., at p. 677, doubted ; Handley v. 
London, Edinburgh and Glasgow Assurance 
Co., (1902) 1 K.B., 350, commented on. 
Armstrong v. Great Southern Gold Mining 
Co. No Liability, (1911) 12 C.L.R., 382 ; 
17 A.L.R., 377. H.C., Griffith, C.J., Barton 
and O'Connor, J J. 

County Court — New trial — Service of notice 
of application — Time — " Clear days " — 
County Court Rules 1891, i. 188, Interpreta- 
tion clause.] — The definition of " clear days " 
in the interpretation clause of the County 
Court Rules 1891 does not apply to Rule 188 
and, therefore, service of a copy of a notice of 
application for a new trial on the eighth day 
after the last day of the trial is out of time. 
Armstrong v. Great Southern Gold Mining 
Co. No Liability, (1911) 12 C.L.R., 382; 
17 A.L.R., 377. H.C., Griffith, C.J., Barton 
and O'Connor, J J. 

County Court Act 1890 (No. 1078), sees. 
96, 133, 148— Order XXXIX., r. 7 (Rules of 
1906) — County Court — New trial — Whether 
issues to be tried may be limited.] — Semble, 
on an application for a new trial, » County 
Court may order a new trial on some only 
of the issues tried in the case to the exclusion 
of others. Holford and Wife v. Melbourne 
Tramway and Omnibus Co., (1909) V.L.R., 
497; 29 A.L.T., 112 ; 13 A.L.R., 667. F.C., 
Madden, C.J., a' Beckett and Cussen, J J. 

New trial — Exercise of discretion to grant 
a new trial.] — For a case in which the dis- 
cretion to be exercised in granting a new trial 
was considered. See Farrands v. Mayor &c. 



of Melbourne, (1909) V.L.R., 531 ; 31 A.L.T., 
78 ; 15 A.L.R., 520. 

(o) COSTS. 

(1) Jurisdiction. 

See also post. (2) Amount Recovered not 
Exceeding Ten Pounds. 

County Court Act 1890 (No. 1078), sec. 47 
— Costs of chamber application — Jurisdiction 
of Judge to fix.] — A Judge of a County Court 
has jurisdiction under section 47 of the 
County Court Act 1890 to fix the amount of 
the costs of an application before him in 
Chambers. Leeder v. Ballarat East, Mayor 
due. of, 29 A.L.T. (Supplement), 6 ; 13 A.L.R. 
(C.N.), 25. Judge Eagleson (1907). 

County Court Act 1890 (No. 1078), sec. 62 
— Payment into Court — Costs fixed by Regis- 
trar — Whether plaintiff may be allowed 
additional costs.] — The fixation of costs by 
the Registrar under section 62 of the County 
Court Act 1890 is final and conclusive for 
all purposes, and there is no power to allow 
the plaintiff any costs beyond the amount 
so fixed. Armstrong v. Cuming Smith & 
Co. Proprietary Ltd., 29 A.L.T. (Supplement), 
17 ; 13 A.L.R. (C.N.), 34. Judge Chomley 
(1907). 

(2) Amount Recovered not Exceeding Ten 
Pounds. 

County Court Act 1890 (No. 1078), sees. 45, 
64 — Costs — Proposed actions — Claims not ex- 
ceeding £10 — Certificate for costs — Plaintiff's 
costs of employing an attorney — Time for 
making application.] — An application for the 
allowance of professional costs under section 
45 cannot be made before the summons in the 
action is issued. Semble, when the plaintiff 
in an action commenced by a special summons 
under section 64 is about to sign final judg- 
ment in default of notice to defend, for an 
amount not exceeding £10, he should apply 
to the Judge sitting in Chambers to be 
allowed costs under Scale A. and for a direc- 
tion that the Registrar so fix them. Clarazite 
Manufacturing Company Limited v. Armitage 
(No. 1), 30 A.L.T. (Supplement), 21; 15 
A.L.R. (C.N.), 6. Judge Eagleson (1909). 



319 



COUNTY .COURT. 



32Q 



County Court Act 1890 (No. 1078), sees. 45, 
62, 64— County Court Rules 1891, r. 200— 
Costs — Action — Claim not exceeding £10 — 
Payment into Court by defendant of debt 
and costs — Plaintiff's costs of employing 
attorney — Time for making application.] — 
Where the defendant in an action commenced 
by special summons under section 64 of the 
County Court Act 1890 duly pays into Court 
the amount of the debt and costs indorsed 
on the summons and such debt does not 
exceed £10, a Judge of the County Court has 
no jurisdiction to allow the plaintiff the cost 
of employing an attorney — such costs not 
being mentioned in the summons. Clarazite 
Manufacturing Company Limited v. Armitage 
(No. 1), 30 A.L.T. (Supplement), 21 ; 15 
A.L.R. (C.N.), 6, disapproved. Clarazite 
Manufacturing Company Limited v. Armitage 
{No 2), 30 A.L.T. (Supplement), 22; 15 
A.L.R. (C.N.), 6. Judge Chomley (1909). 

County Court Act 1890 (No. 1078), sees. 
45, 64— Costs — Proposed action — Claim not 
exceeding £10 — Plaintiff's costs of employing 
attorney — Time for making application that 
costs be allowed.] — An order may be made 
under section 45 of the County Court Act 
1890 prior to the issue of a special summons 
under section 64 that the Registrar on issuing 
such summons shall indorse thereon the 
plaintiff's costs of employing an attorney. 
Clarazite Manufacturing Co. Ltd. v. Armitage 
{No. 1), 30 A.L.T. (Supplement), 21; 15 
A.L.R. (C.N.), 6, not followed. Clarazite 
Manufacturing Co. Ltd. v. Armitage { No. 
2), 30 A.L.T. (Supplement), 22 ; 15 A.L.R. 
(C.N.), 6, approved. Lee v. Cunningham, 
32 A.L.T. (Supplement), 4 ; 16 A.L.R. 
(C.N.), 1. Judge Box (1910). 

County Court Act 1890 (No. 1078), sec. 45 
— Costs — Amount recovered not exceeding 
Ten pounds — Injunction a material part of 
the action — Professional costs.] — Semble ■. The 
provision in section 45 of the County Court 
Act 1890 as to professional costs where the 
amount recovered does not exceed £10, does 
not apply to cases where an injunction is a 
material part of the relief sought. Harrison 
San Miguel Proprietary Ltd. v. Alfred Law- 



rence db Co., (1912) V.L.R., 367 ; 34 A.L.T., 
88 ; 18 A.L.R., 394. Madden, C.J. 

(3) Taxation. 

(a) Scale of Costs. 

(i.) Under Scale in Rules under the Act. 

Scale of costs— Rule 446 (Rules of 1891)— 
" Value of property in litigation " — Judgment 
for Is. damages and injunction restraining 
defendant from breaking his covenant with 
plaintiff not to carry on business within a 
certain area — Scale of costs regulated, not by 
the amount of damages, but by the value of 
the plaintiff's right preserved from infringe- 
ment by the injunction.] — Moylan v. Nolan, 
27 A.L.T. (Supplement), 16; 12 A.L.R. 
(C.N.), 13. Judge Box (1906). 

Action to enforce charge upon land for 
rates — County Court — Scale of costs, how 
determined — Value of land.] — In actions to 
enforce by sale a charge for municipal rates 
over land, the value of the land and not the 
amount of the charge fixes the scale upon 
which costs should be taxed. Mayor Sc. 
of Malvern v. Johnson, 28 A.L.T. (Supplement, 
7 ; 12 A.L.R. (C.N.), 28. Judge Box (1906). 

County Court — Scale of costs — Review of 
taxation — " The value of the property in 
litigation " — County Court Rules 1891, rr. 
446,450.] — The true test of " the value of the 
property in litigation " in Rule 446 of County 
Court Rules 1891 is the value of the right 
in the property claimed by the plaintiff and 
not the value of the whole property in which 
the right is claimed. Wilson v. Anderson, 

26 A.L.T. (Supplement), 5 ; 11 A.L.R. 
(C.N.), 35, explained. Moylan v. Nolan, 

27 A.L.T. (Supplement), 16; 12 A.L.R. 
(C.N.), 13, approved. Tovmsing v. Egan, 
29 A.L.T. (Supplement), 29; 14 A.L.R. 
(C.N.), 18. Judge Moule (1908). 

Costs — Application for new trial — Scale of 
costs applicable — Schedule of scale of costs 
Items, 28, 29, 30, 31, 32.]— For the scale of 
costs applicable upon an application for a 
new trial, see Levey v. Parker, 28 A.L.T. 
(Supplement), 6; 12 A.L.R. (C.N.), 21. 
Judge Box (1906). 



321 



COUNTY COURT. 



322 



Costs of issues— Rule 446 (Rules of 1891).] 
— Where the plaintiff recovers judgment for 
a smaller amount than he claimed with costs 
on certain of the issues, his costs as between 
party and party are regulated by the scale of 
costs applying to the amount for which 
he has obtained judgment ; but the costs of 
the defendant, who obtains judgment on 
the other issues, are regulated by the amount 
sought to be recovered in the action. Lynch 
v. Tognini, 28 A.L.T. (Supplement), 1 ; 12 
A.L.R. (C.N.), 14. Judge Box (1906). 

County Court — Costs — Plaintiff successful 
on both claim and counterclaim — Scale upon 
which costs to be taxed — County Court Rules 
1891, Schedule of Scale of Costs.]— Where an 
item under the Schedule of Scale of Costs 
applies both to the claim and the counter- 
claim, and is not divisible, and where the 
plaintiff is successful on both claim and 
counterclaim, the higher scale of costs relating 
to such item should be allowed. Wilson v. 
Scott, 3 A.L.R. (C.N. ), 87, explained. Hopkins 
v. Forster, 32 A.L.T. (Supplement), 5 ; 16 
A.L.R. (C.N.), 6. Judge Chomley (1910). 

(ii.) In Other Cases. 
See, also, post (h) Jury Fees and Expenses. 
Costs — Taxation — Solicitor and client — ■ 
County Court — Proposed action which is 
never commenced — Action commenced but 
proceedings dropped without order as to costs 
— Scale of costs applicable — County Court 
Rules 1891, Schedule of Scale of Costs.] — 
In taxing the costs as between solicitor and 
client for work done in relation to a County 
Court action which is never commenced, 
or in relation to a County Court action 
which is commenced but in which, by reason 
of the proceedings being dropped, no order is 
made as to costs, the Scale of Costs in the 
Schedule to the County Court Rules 1891 is 
not the governing and only guide in deter- 
mining the amount to be allowed, but the 
Taxing Master may obtain assistance from 
it in the exercise of his discretion. In re 
Brown, (1911) V.L.R., 39; 32 A.L.T., 133; 
16 A.L.R., 602. a'Beckett, J. 

County Court — Costs — Items not included 
in Schedule of Scale of Costs — Conduct of 
trial — Implied agreement not to take objection 



— Expenses incurred on faith of such agree- 
ment.] — On the taxation of costs the un- 
successful party will be precluded from 
taking objection to the allowance of items on 
the ground that they are not comprised in 
those set out in the Schedule of Scale of 
Costs, where the parties have during the 
trial entered into an implied agreement that 
no such objection will be raised. Reid v. 
Panton, 32 A.L.T. (Supplement), 7 ; 16 
A.L.R. (C.N.), 13. Judge Eagleson. (1910). 

(6) Costs of Appeal. 

Practice — Costs — Taxation — Appeal from 
County Court — Order dismissing appeal with 
costs to be taxed by Taxing Master.] — Where 
the Full Court has made an order that an 
appeal from the County Court be dismissed 
with costs, such costs to be taxed by the 
Taxing Master of the Supreme Court, the 
Taxing Master has power to tax only the 
costs of the appeal, and has no power to 
tax the costs incurred in the County Court 
prior to the institution of the appeal. Marks 
v. Pett, 10 V.L.R. (L.), 342, commented on. 
Ambler & Co. Proprietary Ltd. v. Clayton, 
(1909) V.L.R., 56; 30 A.L.T, 113; 14 
A.L.R., 730. a'Beckett, J. 

(c) Instructions ; Attendances on Client ; 
Preparation of Documents. 

County Court Rules 1891 — Schedule of 
Scale of Costs, Item 2, and Schedule of Forms, 
Form 3 — Form Of summons.] — Professional 
costs provided by Item 2, Schedule of Scale 
of Costs to the County Court Rul-es 1891 are 
not to be allowed on taxation where a, sum- 
mons is issued consisting of two separate 
sheets of paper, one of which sheets contains 
the plaintiff's particulars of demand. Lawson 
v. Balchelor, 29 A.L.T. (Supp.), 29; 14 
A.L.R. (C.N.), 17. Judge Eagleson (1908). 

Scale of Costs, Item 2 — " Instructions to 
sue " — Costs for obtaining further particulars, 
drawing, engrossing, &c, in connection there- 
with allowed in addition to allowance for 
" Instructions to sue " — Discretion of Regis- 
trar.] — Moylan v. Nolan, 27 A.L.T. (Supple- 
ment), 16 ; 12 A.L.R. (C.N.), 13. Judge Box 
(1906). 

11 



323 



COUNTY COURT. 



324 



Imprisonment of Fraudulent Debtors Act 
1890 (No. 1100), sec. 15— Rules of 1891, 
Interpretation clause, r. 354 — Schedule of 
Scale of Costs, Item 2 — Judgment summons — 
Judgment under £10 — Practitioner's costs — 
Attending at hearing — Instructions.] — On 
granting leave to withdraw a judgment 
summons issued on a judgment for less than 
£10 a Judge of the County Court may order 
payment by the judgment creditor of the 
judgment debtor's preactitioner's costs for 
instructions from his client ; but he may not 
allow the costs of the practitioner for attend- 
ing on such summons. Coppel v. Anderson, 
28 A.L.T. (Supplement), 8 ; 12 A.L.R. (C.N.), 
22. Judge Box (1906). 

Schedule of Scale of Costs— Items 2, 35 — 
Plaintiff's costs on claim and counterclaim — 
Two sets of costs — Instructions on claim — 
Instructions on counterclaim.] — Where » 
defendant's counterclaim raises matter differ- 
ent from that which arises upon the plaintiff's 
claim, the plaintiff should, on taxation of his 
bill of costs as against the defendant, be 
allowed under item 35 of the Schedule of the 
Scale of Costs for his solicitor's attendance 
upon him to advise or receive instructions 
from him in regard to the counterclaim, 
as well as under Item 2 for instructions to sue 
in regard to the claim. Wilson v. Scott,3 
A.L.K. (C.N.), 87, distinguished. Ambler & 
Go. Proprietary Ltd. v. Clayton, 31 A.L.T. 
(Supplement), 5; 15 A.L.R. (C.N.), 15 
Judge Johnson (1909). 

Schedule of Scale of Costs — Item 35 — 
" Proceeding taken by opposite party " — 
Payment into Court by defendant — Plaintiff's 
Solicitor's attendance upon his client thereon.] 

— Payment into Court by a defendant is a 
" proceeding taken by the opposite party " 
within the meaning of Item 35 of the 
Schedule of Scale of Costs ; and, consequently, 
the plaintiff may be allowed under that Item 
for his solicitor's attendance upon him to 
advise or receive instructions from him on 
receiving notice of such payment in. Ambler 
& Co. Proprietary Ltd. v. Clayton, 31 A.L.T. 
(Supplement), 5; 15 A.L.R. (C.N.), 15. 
Judge Johnson (1909). 



(d) Attending Court on Trial. 

— Scale of Costs, Items 15 and 16 — " Attend- 
ing on trial with counsel " — " On trial " 
meaning of — Attending Court to hear the 
judgment of the Court reserved from one day 
to a subsequent day is not attending " on 
trial " — The Scale does not provide for such 
an attendance.] — Moylan v. Nolan, 27 A.L.T. 
(Supplement), 16; 12 A.L.R. (C.N.), 13. 
Judge Box (1906). 

County Court — Costs — Taxation — Solicitor 
party to action acting professionally on own 
behalf — Solicitor called as witness — " Attend- 
ing Court " — Witnesses' expenses — Schedule 
of Scale of Costs, Items 14, 15, 16.]— A solici- 
tor was party to an action in which he acted 
professionally on his own behalf and was also 
called as a witness. Held, that he was en- 
titled to be allowed his charge for " attending 
Court" under Items 14, 15 and 16 of the 
Schedule of Scale of Costs, or his expenses 
as a witness, whichever allowance was the 
higher, but not both. Hopkins v. Forster, 32 
A.L.T. (Supplement), 5 ; 16 A.L.R. (C.N.), 
6. Judge Chomley (1910). 

(e) Perusing. 

County Court — Scale of Costs, Item 28— 
Costs of perusing further and better answers 
to interrogatories may be allowed.] — Moylan 
v. Nolan, 27 A.L.T. (Supplement), 16; 12 
A.L.R. (C.N.), 13. Judge Box (1906). 

County Court — Costs — Solicitor plaintiff- 
Acting professionally on his own behalf- 
Costs of perusing documents — Perusing inter- 
rogatories — Schedule of Scale of Costs, Item 
28.] — Where the plaintiff a solicitor obtains 
judgment with costs in an action wherein 
he acts as solicitor on his own behalf, he is 
entitled to the fee fixed by the Schedule of 
Scale of Costs for the perusal of all necessary 
documents, and he accordingly may charge 
under Item 28 for perusing the defendant's 
interrogatories. Hopkins v. Forster, 32 
A.L.T. (Supplement), 5 ; 16 A.L.R. (C.N.), 6. 
Judge Chomley (1910). 

(/) Counsel's Fees ; Drawing and Engrossing 
Brief ; Conference. 
County Court— Practice— Costs— Applica- 
tion for liberty to sign final judgment— Scale 



325 



COUNTY COURT. 



326 



Of Costs.] — Items 30, 31 and 32 of the 
Schedule of Scale of Costs apply to applica- 
tions for final judgment. Consequently the 
following items were allowed : — " Drawing 
and engrossing brief for counsel £1 ; Fee for 
counsel and clerk £2 4s. 6d. ; attending with 
counsel 10s." Maekay v. Burley, 27 A.L.T. 
(Supplement), 10; 12 A.L.R. (C.N.), 2. 
Judge Chomley (1905). 

County Court Act 1890 (No. 1078), sec. 64 
(4), (8) — Summons for final judgment — Rule 
84 ; attendance of counsel — Costs — Allow- 
ances under Schedule of Scale of Costs to 
counsel and attorney — Items 30, 31 and 32 — 
" Drawing and engrossing brief " — " Fee to 
counsel and clerk " — " Attending with coun- 
sel."! — There is nothing in 1. 84 to preclude 
counsel from appearing for the parties on 
applications for final judgment. In referring 
the costs of such an application to the Regis- 
trar for taxation, His Honor Judge Box 
intimated that in the majority of the applica- 
tions for final judgment which had come 
before him, if he had had to deal with the 
fixing of the costs, he would have allowed 
the costs of " drawing and engrossing brief 
for counsel," " Fee to counsel and clerk," 
and " attending with counsel." Watson v. 
Watson, 27 A.L.T. (Supplement), 14; 12 
A.L.R. (C.N.), 9 (1906). 

County Court — Costs — Counsel's fees — 
Practitioner conducting trial on behalf of his 
client.] — Where a party's practitioner attends 
Court and conducts the trial on behalf of his 
client he is not entitled to counsel's fee on 
brief as set out in Item 1 1 of the Scale of Costs. 
His fees for the first and subsequent days of 
the trial are governed by Items 17 and 44 of 
such scale. O'Brien v. Victorian Railways 
Commissioners, 27 A.L.T. (Supplement), 11 ; 
12 A.L.R. (C.ST.), 6. Judge Eagleson (1906). 

County Court — Costs — Taxation — Confer- 
ence with counsel — No application made at 
hearing — Discretion of Registrar — County 
Court Rules 1891, Schedule of Scale of Costs. 
Item 13.] — Where no application has been 
made at the hearing of an action to be allowed 
for a conference with Counsel under Item 13 
of the Schedule of Scale of Costs, the allow- 
ance of such a charge is a matter for the 



discretion of the Registrar. Hopkins v. 
Forster, 32 A.L.T. (Supplement), 5 ; 16 
A.L.R. (C.N.), 6. Judge Chomley. (1910). 

(ff) Witnesses' Expenses. « 

Costs — Witnesses present until close of trial.] 
A party is entitled to have his witnesses pre- 
sent until the close of the trial, and to be 
allowed, as part of his costs of the action, the 
expenses of having them so present. Lynch 
v. Tognini, 28 A.L.T. (Supplement), 1 ; 12 
A.L.R. (C.N.), 14. Judge Box (1906). 

Costs — Witnesses in attendance — Case in 
printed list — No defended cases to be taken — 
Discretion of Registrar.] — Plaintiff's expenses 
and those of his witnesses were allowed for the 
day on which the case was in the printed list 
for hearing, but no defended cases were taken. 
Lynch v. Tognini, 28 A.L.T., (Supplement), 
1 ; 12 A.L.R. (C.N.), 14. Judge Box (1906). 

County Court — Costs — Taxation — Solicitor 's 
party to action acting professionally on own 
behalf — Solicitor called as witness — " Attend- 
ing Court " — Witnesses' expenses — Schedule 
of Scale of Costs, Items 14, 15, 16.] — See, ante, 
(d) Attending Court on Trial. Hopkins 
v. Forster, 32 A.L.T. (Supplement), 5 ; 16 
A.L.R. (C.N.), 6. 

(h) Jury Fees and Expenses. 

County Court — Costs — Items not included in 
Schedule of Scale of Costs — Jury fees and 
expenses — View — Travelling and other ex- 
penses—Juries Act 1890 (No. 1104), sec. 77, 
Tenth Schedule.] — By virtue of sec. 77 of the 
Juries Act 1890 "and the Tenth Schedule 
thereto, jury fees and travelling and other 
expenses paid by one of the parties to an 
action tried with a jury, in respect to a view 
by the jury, are allowable on the taxation 
of his costs under an order giving him the 
costs of the action. Reid v. Panton, 32 
A.L.T. (Supplement), 7 ; 16 A.L.R. (C.N.), 
13. Judge Eagleson (1910). 

(i) Costs of Warrants. 

Costs — Warrant of execution to satisfy a 
County Court judgment — Bailiff's fees — 
County Court Rules 1891, r. 441.]— The only 
" costs of warrants against the goods " which 
may be allowed against the defendant under 



32? 



COUNTY COURT 



328 



County Court Rules 1891, r. 441, are the costs 
of issuing such warrant and the bailiff's fee 
for execution thereof. In re Luke Nolan, 
deceased (No. 1), 29 A.L.T. (Supplement), 31 ; 
14 A.L.R. (C.N.), 21. Judge Moule (1908). 

IIT. — Remitting Actions to County Court. 

County Court Act 1890 (No. 1078), sec. 51 — 
Action of tort brought in Supreme Court — 
Remission to County Court — Action fit to be 
tried in Supreme Court, what is.] — In deter- 
mining that the plaintiff has, within the mean- 
ing of sec. 51 of the County Court Act 1890 
a cause of action fit to be prosecuted in the 
Supreme Court, the Judge should be satisfied 
that difficulties of law or in the application of 
the law and complexity of fact are likely to 
arise at the trial. 0' Farrell v. Syme, 16 
V.L.R., 422; 12 A.L.T., 11, and Smith v. 
Syme, 20 V.L.R., 56, 15 A.L.T., 193, ap- 
proved. Orchard v. Oriental Timber Corpora- 
tion Ltd., (1910) V.L.R., 192; 31 A.L.T., 
198 ; 16 A.L.R., 213. F.C., Madden, C.J., 
Hood and Cussen, J J. 

County Court Act 1890 (No. 1078), sec. 51— 
Action brought in Supreme Court — Remission 
to County Court — " Cause of action fit to be 
prosecuted in the Supreme Court " — Matters 
to be taken into consideration.] — The words 
in the County Court Act 1890, sec. 51, " a 
cause of action fit to be prosecuted in the 
Supreme Court " mean a cause which is more 
fit to be tried in the Supreme Court than in 
the County Court, or which ought to be tried 
in the Supreme Coxu-t. Farrer v. Lowe, 5 
T.L.R., 234, and Banks v. HoUingsworth, 
(1893) 1 Q.B., 442, followed. In determining 
whether the plaintiff has, within the meaning 
of that section, " a cause of action fit to be 
prosecuted in the Supreme Court," considera- 
tion should be given to the magnitude of the 
issues to be tried, and to the complexity of 
the facts and the difficulty of unravelling 
them, and to the difficulty of the questions of 
law involved. Ronald v. Harper, (1908) 
V.L.R., 674 ; 30 A.L.T., 72 ; 14 A.L.R., 472. 
Hodges, J. 

County Court Act 1890 (No. 1078), sec. 51— 
Action brought in Supreme Court — Applica- 
tion to remit to County Court — Right of plain- 
tiff to fix place of trial — Alteration on ground 



of convenience — Onus on defendant.] — Where 
in an application under sec. 51 of the County 
Court Act 1890 the defendant applies to have 
an action remitted for trial before a County 
Court at a place other than that fixed by the 
plaintiff in his writ, the onus is on the defend- 
ant to show that the alteration will effect a 
real and substantial advantage on the ground 
of convenience. Such an alteration of the 
place of trial will not be made on the mere 
ground that the parties reside nearer to the 
Court at which the defendant desires the trial 
to take place. Mason v. Kelly, 31 A.L.T., 
121. Madden, C.J. (1910). 

IV. — Appeals ; Certiorari ; Mandamus. 

Appeal — Jurisdiction — Discretion of Judge 
of County Court — Order enlarging time for 
taking any step — County Court Rules 1891, r. 
424.] — Quaere, whether the High Court and 
the Supreme Court have jurisdiction to review 
the exercise by a Judge of County Courts of 
the discretion given him by r. 424 of the 
County Court Rules 1891 to enlarge the 
time for serving notice of an application for 
a new trial. Armstrong v. Great Southern 
Gold Mining Co., No Liability, (1911) 12 
C.L.R., 382 ; 17 A.L.R., 377. H.C., GrifjUh, 
C.J., Barton and 0' Connor, J J. 

Appeal — County Court — Action struck out 
for want of jurisdiction — Jurisdiction to deal 
with defendant's application for costs declined 
by Judge — Whether appeal lies — County Court 
Act 1890 (No. 1078), sec. 133.]— An action 
having been brought in a County Court 
which the Court had no jurisdiction to try, 
the Judge ordered the case to be struck out 
and refused to consider the defendant's 
application for costs on the ground that he 
had no jurisdiction to do so. Held, that an 
appeal lay from such refusal. The King v. 
Beecham db Co., Ex parte Cameron, (1910) 
V.L.R., 204; 31 A.L.T., 183; 16 A.L.R., 
173. F.C., Madden, C.J. and a' Beckett, J. 
(Cussen, J., doubting). 

County Court Act 1890 (No. 1078), sec. 133 
—County Court Rules 1891, rr. 378, 379— 
Practice — Appeal — Case settled by Judge- 
Transmission to Supreme Court — Enlargement 
of time — Failure of Judge to indorse.]— The 
indorsement of enlargement of the time for 



329 



COUNTY COURT. 



330 



transmitting a case on appeal to the Supreme 
Court, directed by r. 379 to be made by the 
Judge in cases falling within the rule, is not 
a condition of the jurisdiction of the Supreme 
Court to hear the appeal ; and failure on the 
part of the Judge to make such indorsement 
will not prevent the Supreme Court from 
hearing the appeal if, in fact, the case is 
transmitted within fourteen days from the 
day on which the Judge shall have returned 
the case settled and signed by him to the 
appellant. Ryan v. Muir & Co., (1912) 
V.L.R., 411; 34 A.L.T., 64; 18 A.L.R., 
396. F.C., Madden, C.J., Hood and Cussen, 
JJ. 

Action in County Court — Appeal to Full 
Court — Re-trial ordered in Supreme Court — 
Payment into Court — Order XXII. (Rules of 

1906).]— When the Full Court on appeal 
from the County Court has directed the 
cause to be re-heard before a Judge of the 
Supreme Court, and has ordered that the 
costs of the first trial shall abide the result 
of the re-hearing, leave will not be given to 
the defendant to pay money into Court. 
Order XXII. does not apply to such a case. 
Fitzgerald v. Murray, (1907) V.L.R., 715; 
29 A.L.T., 158 ; 13 A.L.R., 645. Cussen, J. 

County Court Act 1890 (No. 1078), sec. 135— 
Special case for opinion of Supreme Court — 
Announcement by Judge of his intention to 
state — Change of intention before case 
actually stated.]— Per Hodges and Hood, J J. 
— A Judge of a County Court, who has ex- 
pressed his intention to state a special case 
under sec. 135 of the County Court Act 1890, 
may, before he has actually stated the ques- 
tion in the form of a special case, change his 
mind and deliver judgment. Macartney v. 
A. Macrow & Sons' Proprietary Ltd., (1911) 
V.L.R., 393 ; 33 A.L.T., 64 ; 17 A.L.R., 397. 

Certiorari to Judge of a County Court — 
Evidence — Conflict of evidence as to proceed- 
ings in County Court Unsworn statement 

of Judge, whether admissible.] — Per a' Beckett, 
J. — On the hearing of an order nisi for 
certiorari directed to the Judge of a County 
Court and a party to an action tried before 
him, the Supreme Court may obtain and act 



upon a statement, though not an oath, by the 
Judge as to what took place at the trial, if 
the affidavits are in conflict upon that matter. 
Macartney v. A. Macrow <Sa Sons Proprietary 
Ltd., (1911) V.L.R., 393; 33 A.L.T., 64 ; 17 
A.L.R., 397. 

Mandamus — Remedy by appeal available — 
Discretion of Court, matters to be considered in 
exercise of — Comparative advantage of apply- 
ing one remedy rather than the other— County 
Court — Case struck out for want of jurisdic- 
tion — Jurisdiction to entertain defendant's 
application for costs declined by Judge.] — See 
Appeal. The King v. Beecham, Ex parte 
Cameron, (1910) V.L.R., 204 ; 31 A.L.T., 183 ; 
16 A.L.R., 173. 

V. — Othtcr Points. 

Insolvency Act 1890 (No. 1103), sec. 37, 
sub-sec. viii. — Creditors' petition — Act of 
insolvency — Execution on a judgment ob- 
tained in " any Court " — County Court judg- 
ment.] — The words " any Court " in section 
37 (viii.) of the Insolvency Act 1890 include 
a County Court. In re Anderson, (1909) 
V.L.R., 465 ; 31 A.L.T., 72 ; 15 A.L.R., 518. 
Cussen, J. 

" Clear days."] — See Time. Armstrong v. 
Great Southern Gold Mining Co. No Liability. 
(1911) 12 C.L.R., 382 ; 17 A.L.R., 377. 



COURT. 

See APPEAL; COUNTY COURT; IN- 
SOLVENCY; JUSTICES OF THE 
PEACE ; MINING ; PRACTICE AND 
PLEADING. 



COURT FEES. 

See COSTS. 



CREDITOR. 

See INSOLVENCY. 



331 



CRIMINAL LAW. 



332 



CRIMINAL LAW. 



COL. 



332 
333 
333 

335 
336 
337 
337 
337 
338 
338 

340 
341 
341 
341 

342 
342 

343 

344 



I. Carnally Knowing ; Indecent 

Assault 
II. Conspiracy 

III. Contempt or Court . . 

IV. Demanding Money by Letter 

with Menaces 
V. Embezzlement . . 
VI. Embracery 
VII. False Pretences 
VIII. Forgery 
IX. Inciting to Commit Crime 
X. Larceny 

XI. Malicious Injuries to Pro- 
perty 
XII. Murder 

XIII. Nuisance 

XIV. Perjury 
XV. Public Statute, Disobedience 

to 
XVI. Receiving 
XVII. Secret Commission, Offences 

Relating to . . 
XVTII. Using Cattle without Owner's 
Consent 
XIX. Various Statutory Offences ; 

Liability for Joint Offence 344 
XX. Wife Desertion . . . . 345 

XXI. Mens Rea 346 

XXII. Practice 347 

(a) evidence . . . . . . 347 

(1) Judicial Notice .. .. 347 

(2) Witness, competency of 348 

(3) Corroboration ; Nature of 

Evidence Necessary to 
Justify Conviction 

(4) Foreign Law 

(5) Evidence not on Oath 

(6) Expert Evidence 

(7) Dying Declarations 

(8) Recent Possession 

(9) Identification of Persons 
and Property 

(10) Evidence of Other Acts 
of Accused and of Col- 
lateral Matters 

(11) Evidence to Meet Anti- 
cipated Defence 

(12) Improper Admission of 
Evidence, Effect of 



348 
351 
352 
352 
353 
355 

356 



357 



358 



359 



(6) BAIL 

(c) LEGAL ASSISTANCE FOR DE- 

FENCE 

(d) TRIAL GENERALLY 

(1) Venue 

(2) Special Jury 

(3) Presentment 

(4) Mode of Trial where. 
Several Accused Persons 
or Several Charges 

(5) Pleading 

(6) Witness, Power of Judge to 

Call 

(7) Reserving Decision 



COL. 

359 

360 
361 
361 
361 
361 



362 
363 

364 
364 



(e) APPEAL ; CROWN CASES RE- 
SERVED ; CERTIORARI . . 364 
(/) NEW TRIAL . . . . . . 366 

(g) PUNISHMENT and the RE- 
MISSION THEREOF . . 367 

XXIII. Fugitive Offenders . . . . 368 

XXIV. Stolen Property . . . . 372 

See also, Police Offences Act and the various 
Statutes creating offences punishable 
summarily. 



I. — Carnally 



Knowinq ; 
Assault. 



Indecent 



Crimes Act 1891 (No. 1231), sec. 6— Un- 
lawfully and carnally knowing girl under age 
of sixteen — Consent — Girl of " same age as 
the defendant."] — The girl and the defen- 
dant are not " of the same age," if there be 
any difference, however slight, in their ages. 
If the defendant be a day older than the girl 
that is sufficient to take the case out of the 
proviso in section 6. Rex v. Hibbert, (1906) 
V.L.R., 198 ; 12 A.L.R. (C.N.), 5. Hodges, 
J. (1906). 

Crimes Act 1891 (No. 1231), sec. 33— Evi- 
dence Act 1890 (No. 1088), sec. 50— Unsworn 
evidence of child of tender years — Corrobora- 
tion — Indecent assault.] — See post, XXII. — 
Practice ; (a) evidence ; (3) Corroboration. 
The King v. O'Brien, (1912) V.L.R., 133; 
33 A.L.T., 177 ; 18 A.L.R., 38. 

Evidence— Indecent assault — Statement or 
complaint by female assaulted— First reason- 
able opportunity — Statement or complaint in 
answer to questions.] — See post, XXII.— 



333 



CRIMINAL LAW. 



334 



Practice ; (a) evidence ; (10) Evidence of 
Other Acts of Accused and of Collateral 
Matters. Rex v. McNeill, (1907) V.L.R., 
265 ; 28 A.L.T., 182 ; 13 A.L.R., 99. 

II. — Conspiracy. 

Conspiracy — Corporation — Liability to pre- 
sentment on charge of conspiracy — Capacity 
to conspire.] — A corporation cannot conspire 
nor (Semble) can it be conspired with. It 
cannot therefore be presented on a charge 
of conspiracy to defraud nor (Semble) can 
an individual be presented on a charge of 
conspiracy with a corporation to defraud. 
R. v. Kellow, (1912) V.L.B., 162 ; 33 A.L.T., 
203 ; 18 A.L.R., 170. Cussen, J. 

Conspiracy — Jurisdiction of Court — Agree- 
ment made outside overt acts within.] — The 
Court has jurisdiction to hear » charge of 
conspiracy to defraud if any overt act is 
done, in pursuance of the conspiracy, within 
the jurisdiction, although the original agree- 
ment between the conspirators is made out- 
side the jurisdiction. Rex v. Brisac ds Scott, 
(1803) 4 East., 164, followed. R. v. Kellow, 
(1912) V.L.R., 162; 33 A.L.T., 203; 18 
A.L.R., 170. Cussen, J. 

III. — Contempt of Cotjp.t. 

Contempt of Court — Jurisdiction of Supreme 
Court — Criminal charge — Publication of mat- 
ters tending to prevent a fair trial — Publication 
before committal for trial — Extent to which 
publication in newspaper is lawful.] — Where 
a person has been arrested and charged on 
information with an offence in respect of 
which Justices may commit him for trial in 
the Supreme Court, the publication after 
his arrest and before he has been so committed 
of matter tending to prejudice his fair trial 
in the Supreme Court is a contempt of the 
Supreme Court which that Court has juris- 
diction to punish. The publication, in respect 
of a pending criminal charge of extrinsic 
ascertained facts to which any eye-witness 
could bear testimony, such as, in the case of 
a charge of murder, the finding of a body and 
its condition, the place where it was found, 
the persons by whom it was found, the arrest 
of the person accused, is lawful. Bat the 
publication of alleged facts depending upon 



the testimony of some particular person, which 
may or may not be true and may or may not 
be admissible in a Court of justice, and the 
publication of comments on alleged facts 
are unlawful, if such publication is likely to 
interfere with the fair trial of the person 
charged. Packer v. Peacock ; Burrell v. 
Peacock ; Smart v. Peacocl;, (1912) 13 C.L.R., 
577 ; 18 A.L.R., 70. H.C., Griffith, C.J, 
and Barton, J. 

Contempt of Court — Nature of offence- 
Publication of statements concerning a Judge 
of the High Court.] — Statements made con- 
cerning a Judge of the High Court do not 
amount to contempt unless calculated to 
obstruct or interfere with the course of 
justice in the High Court in the due adminis- 
tration of the law by that Court. Rex v. 
Nicholls, (1911) 12 C.L.R., 280; 17 A.L.R., 
309. H.C., Griffith, C.J., Barton and O'Con- 
nor, J J. 

Contempt of Court — Nature of offence.] — 

The essence of contempt is action or inaction 
amounting to an interference with or ob- 
struction to or having a tendency to interfere 
with or obstruct the due administration of 
justice. Ex parte Dunn ; Ex parte Aspinall, 
(1906) V.L.R., 493 ; 28 A.L.T., 3 ; 12 
A.L.R., 358. Cussen, J. (1906). 

Criminal contempt — Attempt to interfere 
with the course of justice — Nature of offence.] 

— Semble. — All attempts to interfere with 
the course of justice are criminal contempts 
and are misdemeanours. Ex parte Dunn ; 
Ex parte Aspinall, (1906) V.L.R., 493 ; 28 
A.L.T., 3 ; 12 A.L.R., 358. Cussen, J. 

Contempt of Court — Attempt to influence 
juryman — Juryman not yet empanelled for 
trial of accused person in whose favour 
attempt is made.] — Where a juryman has 
been sworn to act at the sessions of the Court 
at which an accused person is to be tried, 
it is a contempt of Court to attempt to in- 
fluence him in the verdict he would be called 
upon to give if he should be empanelled upon 
the trial of such accused person. Ex parte 
Dunn ; Ex parte Aspinall, (1906) V.L.R., 
493 ; 28 A.L.T., 3 ; 12 A.L.R., 358. Cussen, 
J. (1906). 



335 



CRIMINAL LAW. 



336 



Mandamus — Minister of Crown — Disobe- 
dience of public Statute — Criminal contempt — 
Attachment — Privilege.] — Disobedience to a 
public Statute for disobedience to which no 
other penalty is provided by the Legislature, 
is an indictable misdemeanour ; therefore 
contempt in refusing to obey a writ of man- 
damus ordering compliance with the Statute 
is of a criminal or quasi-criminal nature, and 
{semble) there is no privilege in a Minister of 
the Crown or anyone else from attachment 
for such contempt. The King v. Watt ; 
Ex parte Slade, (1912) V.L.R., 225; 33 
A.L.T., 222 ; 18 A.L.R., 158. F.C., Madden, 
G.J., Hodges and Cussen, J J. 

Contempt of Court — Fending criminal trial — 
Petition to Attorney-General in relation to — 
Whether a contempt.] — See Contempt. In 
re Mann; In re King, (1911) V.L.R., 171 ; 
32 A.L.T., 156 ; 16 A.L.R., 598. 

Contempt of Court — Criminal trial — Dis- 
agreement of jury — Remand of prisoner — 
Petition against second trial — Presentation 
to Attorney-General — Publication in news- 
papers.] — See Contempt. In re Mann ; 
In re King, (1911) V.L.R., 171 ; 32 A.L.T., 
156; 16 A.L.R., 598. 

Court of General Sessions — Contempt of 
Court — Extent of powers of Court of General 
Sessions — Justices Act 1890 (No. 1105), sec. 
184.] — The Court of General Sessions has no 
power to punish for contempt of Court 
except in the cases specified, and to the 
extent limited in the Justices Act 1890. 
Ex parte Dunn; Ex parte Aspinall, (1906) 
V.L.R., 493 ; 28 A.L.T., 3 ; 12 A.L.R., 358. 
Cussen, J. 

Inferior Court of Record — Power to commit 
for contempt.] — Semble. — Apart from statu- 
tory authority an inferior Court of Record 
can punish only for contempt committed 
in the face of the Court. Ex parte Dunn ; 
Ex parte Aspinall, (1906) V.L.R., 493; 28 
A.L.T., 3 ; 12 A.L.R., 358. Cussen, J. 

IV. — Demanding Money by Lettek with 
Menaces. 

Crimes Act 1890 (No. 1079), sec. 113— Letter 
demanding with menaces money or other 



valuable thing — Uttering — Felonious intent, 
whether necessary — What acts will constitute 
an offence.] — A felonious intent is a necessary 
ingredient of the offence of '" uttering " a 
letter demanding with menaces money or 
other valuable thing under sec. 113 of the 
Crimes Act 1890. It is not, however, an 
essential part of the offence that that which 
is done with the letter should be an act tending 
to the letter being sent to or reaching the 
hands of the person against whom the 
menaces are directed. Rex v. Crowe, (1906) 
V.L.R., 476; 27 A.L.T., 239; 12 A.L.R., 
253. F.C., a? Beckett, A.-C.J., Hodges and 
Chomley, J J. (1906). 

V. — Embezzlement. 

Embezzlement — Secretary of friendly So- 
ciety — Moneys of trustees — No relation of 
master and servant.] — The prisoner was the 
secretary of u, Branch of a Friendly Society 
registered under the Friendly Societies Act 
1890, having being appointed by the Branch 
under the rules of the Society, and held office 
during the pleasure of the Branch. It was 
his duty to receive al] moneys on behalf of 
the Branch and immediately after the close 
of each meeting to hand over to the treasurer 
all moneys he might have received, and also 
to balance the books every quarter and pre- 
sent the balance-sheet duly audited to the 
Branch. It was the duty of the treasurer to 
receive all monteys paid to the Branch 
through the secretary, and to pay all moneys 
into the Bank to the credit of the trustees. 
It was the duty of the trustees to hold in 
trust for the Branch all moneys of the Branch 
which might come into their possession, and 
to invest the same and collect all interest and 
pay the same to that Branch. Money which 
had been thus invested by the trustees 
fell due, and with the interest due thereon was 
paid by the borrowers to the prisoner, and 
was by him misappropriated. The prisoner 
was charged as clerk and servant of the 
trustees with embezzlement of the money so 
paid to him. Held, that he was not a clerk 
or servant of the trustees, but of the Branch. 
Rex v. M'Auslan, (1907) V.L.R., 710; 29 
A.L.T., 83 ; 13 A.L.R., 609. F.C., 
C.J., Hodges and Hood, J J. 



337 



CRIMINAL LAW. 



338 



VI . — Embracery. 

Embracery — Juryman sworn to act — At- 
tempt to induce him to give false verdict if he 
should be impanelled.] — Quaere, whether an 
attempt to induce a person sworn to act as a 
juryman to give a false verdict if he should be 
impanelled is embracery. Ex parte Dunn ; 
Ex parte Aspinall, (1906) V.L.R., 493; 28 
A.L.T., 3; 12 A.L.R., 358. Cussen, J. 

VII. — False Pretences. 

Attempting to obtain money by false pre- 
tence — Falsity known to person to whom 
pretence made — Money obtained but not by 
false pretence.] — Where the person to whom 
a false pretence is made for the purpose of 
obtaining money, knows of its falsity, but 
nevertheless parts with his money, » charge 
of attempting to obtain money with intent 
to defraud will lie against the person making 
such pretence. Reg. v. Mills, 7 Cox. C.C., 
263, followed. Rex v. Perera, (1907) V.L.R., 
540 ; 28 A.L.T., 176 ; 13 A.L.R., 116. F.C., 
Madden, C.J., a' Beckett and Hood, J J. 

Criminal law — Jurisdiction — False pretences 
made in Tasmania — Attempt to obtain money 
in Victoria — Crimes Act 1890 (No. 1079), sec. 
165.] — An Act done in Victoria forming part of 
a series of acts which, if uninterrupted, would 
result in the obtaining of money in Victoria 
as a consequence of false representations 
made out of Victoria, is an attempt to obtain 
money by false pretences which the Victorian 
Courts have jurisdiction to try. W. wrote 
and posted a letter in Victoria addressed to 
C. in Tasmania ; the letter contained false 
representations by means of which W. hoped 
to induce C. to send the money to him in 
Victoria. Held, that the Victorian Courts 
had jurisdiction to convict W. of attempting 
to obtain money by false pretences. R. v. 
Burdetl, 4 B. & A.., 95; R. v. Hensler, 11 
Cox., 573; and R. v. Ellis, (1899) 1 Q.B., 
230, discussed. Rex v. Waugh, (1909) 
V.L.R., 379 ; 31 A.L.T., 37 ; 15 A.L.R., 
366. F.C., Madden, Hodges and Cussen, J J. 

VIII. — Forgery. 

Criminal law — Forgery — Fraudulent intent 
— Intent of forger to gain advantage.] — It is 
sufficient on a charge of forgery to prove an 



intention on the part of the accused to gain 
an advantage to himself without proving any 
intent to defraud anyone. The King v. 
Elton, (1910) V.L.R., 1; 31 A.L.T., 98; 15 
A.L.R., 596. F.C., Madden, C.J., Hood and 
Cussen, J J. (1909). 

Criminal law — Forgery — Fraudulent intent 
— Public document — Intention of forger to 
gain advantage — Permission of Justice to 
Marriage being clebrated without notice — 
Marriage Act 1909 (No. 2192), sees. 2, 3.]— 
A permission by a Justice of the Peace under 
sec. 2 of the Marriage Art 1909 that a marriage 
may be celebrated without notice is a docu- 
ment of a, public nature, and may be the 
subject of forgery without proving an intent 
to defraud. The King v. Elton, (1910) V.L.R., 
1 ; 31 A.L.T., 98 ; 15 A.L.R., 596. F.C., 
Madden, C.J., Hood and Cussen, J J. 

IX. — Inciting to Commit Crime. 

Inciting to steal goods — Delivery of stolen 
goods by prisoner to third person to be sold 
or pawned— Evidence of, whether admissible — 
Accomplice's evidence — Corroboration.] — -Sec 
post, XXII. — Practice ; (a) evidence ; 
(10) Evidence, of other Acts of Accused and of 
Collateral Matters. Rex v. Campbell, (1908) 
V.L.R., 136 ; 29 A.L.T., 196; 14 A.L.R., 41. 

X. — Larceny. 

See also, post Receiving. 

Larceny — Innocent taking — Subsequent 
fraudulent misappropriation — Intention to 
part with property.] — Where without coercion 
or trick money i3 given to a person with the 
intention that he shall retain the amount of 
a debt due to himself, and give change, and 
he keeps the money but refuses to give change, 
he is not guilty of larceny. R. v. Reynolds, 2 
Cox C.C., 170, followed. Rex v. Hill and 
Marshall, (1909) V.L.R., 491 ; 31 A.L.T., 
76; 15 A.L.R., 523. F.C., Madden, C.J., 
a' Beckett and Hood, J J. 

Larceny — Money of friendly society — Money 
in possession of treasurer — Felonious taking 
by trustee — In whom property should be laid — 
Friendly Societies Act 1890 (No. 1094), sec. 16 
(iii.), (vi.).] — The treasurer of » friendly 
society received on behalf of the society 



339 



CRIMINAL LAW. 



340 



moneys which, under the rules of the society, 
it was his duty within twenty-four hours to 
pay into a Bank to the credit of the trustees. 
By the rules the trustees were to hold all 
property of the society which came into their 
possession in trust for the society. The 
treasurer placed the moneys in a safe and, 
within twenty-four hours of their being 
received by the treasurer, one of the trustees 
broke into the safe, abstracted the moneys, 
and applied them to his own use. The trustee 
was charged on presentment with larceny of 
the moneys of the treasurer and found guilty. 
Held, that, as the moneys had not within 
the rules of the society come into the posses- 
sion of the trustees, but were at the time of 
the asportation in the lawful possession of 
the treasurer, they were rightly laid in the 
presentment as the moneys of the treasurer 
and the trustee was rightly convicted. Rex 
v. Watson, (1908) V.L.R., 103; 29 A.L.T., 
146 ; 13 A.L.R., 724. F.C., Madden, O.J., 
Hodges and Hood, J J. (1907). 

Friendly Societies Act 1890 (No. 1094), sec. 
16 (iii.), (vi.) — Property of society, legal pro- 
ceedings concerning — Owners, who to be 
named as — Trustees.] — Sec. 16 (vi.) of the 
Friendly Societies Act 1890, which provides 
that in legal proceedings all property of a 
friendly society shall be stated to be the 
property of the trustees in their proper 
names as trustees for the society, does not 
apply unless the property in question has 
actually become the property of the trustees. 
Rex v. Watson, (1908) V.L.R., 103 ; 29 
A.L.T., 146 ; 13 A.L.R., 724. F.C., Madden, 
C.J., Hodges and Hood, J J. (1907). 

Criminal law — Larceny — Property, in whom 
to be laid — Trustees of friendly society — 
Friendly Societies Act 1890 (No. 1094), sec. 16 

(vi.).] — Per Hood, J. — Quaere, whether a 
prosecution for theft is a " proceeding con- 
cerning property " within the meaning of 
sec. 16 (vi.) of the Friendly Societies Art, 
which provides that in such » proceeding 
the property of » friendly society shall be 
stated to be the property of the trustees 
in their proper names as trustees for the 
society. Rex v. Watson, 13 A.L.R., at p. 
725. 



Larceny — Fraudulent conversion by agent- 
Secretary of friendly society — Trustees— No 
relation of agency — Crimes Act 1896 (No. 
1478), sec. 2.]— The rules of a friendly 
society provided in substance that the secre- 
tary was authorised to receive moneys on 
behalf of the society at lodge meetings, and 
that he should pay all such moneys either to 
the treasurer or into the society's Bank to the 
credit of the trustees. The secretary having 
received moneys on behalf of the society at 
other times and places than a lodge meeting 
applied them to his own use. Held, that 
there was no relation of agency between the 
trustees and the secretary, and therefore that 
the secretary could not be convicted under 
sec. 2 of the Crimes Act 1896 of fraudulent 
conversion of moneys received as agent of 
the trustees. Rex v. Buckle, 31 A.L.T., 43 ; 

15 A.L.R., 372. F.C., Madden, C.J., 
a' Beckett and Hodges, JJ. (1909). 

Larceny — Receiving — Similarity between 
goods found in possession of prisoner and goods 
alleged to have been stolen — Failure of prisoner 
to give satisfactory account of how goods came 
into his possession — Evidence of stealing and 
identity of goods, sufficiency of.] — See, post, 
XXII. — Practice; (a) evidence; (9) Identi- 
fication of Persons and Property. Rex v. 
Schiflman, (1910) V.L.R., 348 ; 32 A.L.T., 28; 

16 A.L.R., 346. [Leave to appeal refused by 
High Court, 11 C.L.R., 255; 17 A.L.R., 150.] 

Evidence — Larceny — Recent possession — 
Offences against the Commonwealth— Judic- 
iary Act 1903 (No. 6), sec. 80.]— -See, post, 
XXII. Practice ; (a) evidence ; (8) Re- 
cent Possession. Rex v. Forrest, 34 A.L.T., 
95 ; 18 A.L.R., 495. 

XI. — Malicious Injuries to Property. 

Crimes Act 1890 (No. 1079), sec. 185— 
" Crop of grass," what is— Setting fire to 
crops, &C.J — The words " crop of grass " in 
sec. 185 of the Crimes Act 1890 mean grass 
sown or cultivated for the purpose of getting 
a crop of hay or seed, and not a natural 
growth of grass. Rex v. Philbey, (1906) 
V.L.R., 290 ; 27 A.L.T., 186 ; 12 A.L.R., 
188. F.C., Holroyd, A.-C.J., Hood and Cue- 
sen, JJ. (1906). 



341 



CRIMINAL LAW. 



342 



Crimes Act 1890 (No. 1079), sec. 194— 
Unlawfully destroying fence — Actual malice.] 

Actual malice is an essential element in the 
offence of wilfully and maliciously cutting, 
breaking, &c, or otherwise destroying a fence 
under section 194 of the Grimes Act 1890. 
Trotman v. Shankland, 7 V.L.R. (L.), 16, 
adopted. McLaren v. Bradley, (1908) V.L.R., 
318; 29 A.L.T., 239; 14 A.L.R., 252. 
a' Beckett, J. 

Crimes Act 1890 (No. 1079), sec. 194— 
Maliciously destroying fence — Question of 
title — Jurisdiction of Justices — Justices Act 
1890 (No. 1105), sec. 69.]— The jurisdiction 
of Justices under sec. 194 of the Grimes Act 
1890 is ousted by a bona fide claim by the 
defendant that the land whereon the fence 
stood belongs to him solely, although the 
Justices may think that he is in fact only 
jointly interested with some other person. 
McLaren v. Bradley, (1908) V.L.R., 318; 
29 A.L.T., 239 ; 14 A.L.R., 252. a' Beckett, 
J. 

XIT. MURDER. 

Criminal law — Murder — Evidence, suf- 
fiency of — Circumstantial evidence — Proof of 
fact of death — Proof that prisoner caused 
death — Reasonable hypothesis consistent with 
innocence — Direction to jury — Accomplice, 
evidence of — Corroboration of part of his 
evidence, sufficiency of.] — See, post, XXII. 
Practice ; (a) evidence ; (3) Corrobora- 
tion ; Nature of Evidence Necessary to 
Justify Conviction. Peacock v. The King, 
(1911) 13 C.L.R., 619 ; 17 A.L.R., 566. 

XIII. — Nuisance. 

Nuisance — Drain on highway constructed by 
municipal authority. J — A drain constructed by 
a municipal authority on » highway for the 
purpose of draining the highway is not hi 
itself an indictable offence. Benalla, Presi- 
dent. &c, of v. Cherry, (1911) 12 C.L.R., 
642; 17 A.L.R., 537. H.C., Griffith, C.J., 
Barton and O'Connor, J J. 

XIV— Perjury. 

Perjury — Administration of oath— Acting 
clerk of Petty Sessions — Justices Act 1890 
(No. 1105), sees. 41, 64, 77 (7).]— A witness 



sworn by an acting clerk of Petty Sessions 
may be guilty of perjury. Reg. v. Barber, 
3 A.L.R. (C.N.), 21, approved. Rex v. 
Turnbull, (1907) V.L.R., 11 ; 28 A.L.T., 103 ; 
12 A.L.R., 551. Cussen, J. 

Perjury — Administration of oath — Clerk of 
Petty Sessions, who is — Justices Act 1890 (No. 
1105), sec. 77 (7).] — Quaere, whether under 
section 77 (7) of the Justices Act 1890 » 
person who de facto acts as a clerk of Petty 
Sessions may not lawfully administer the 
oath to a witness. Rex v. Turnbull, (1907) 
V.L.R., 11 ; 28 A.LT., 103 ; 12 A.L.R., 551. 
Cussen, J. 

XV. — Public Statute, Disobedience to. 

Disobedience to public Statute — No penalty 
prescribed — Misdemeanour — Mandamus to en- 
force obedience, disregard of — Criminal con- 
tempt.] — Disobedience to » public Statute 
for disobedience to which no other penalty 
is provided by the Legislature, is an indictable 
misdemeanour. Therefore contempt in refus- 
ing to obey a writ of mandamus ordering 
compliance with the Statute is of a criminal 
or quasi-criminal nature. The King v. 
Watt; Ex parte Stade, (1912) V.L.R., 225; 
33 A.L.T., 222; 18 A.L.R., 158. F.C., 
Madden, C.J., Hodjes and Cussen, J J. 

XVI. — Receiving. 
See also, ante, Larceny. 

Crimes Act 1890 (No. 1079). sec. 307— 
Receiving property knowing the same to have 
been feloniously stolen — Stolen articles de- 
posited in a certain place by pre-existing 
arrangement — No knowledge by accused that 
particular goods stolen or deposited — No act 
of dominion.] — A. agreed with B. that if B. 
would deposit any articles he might steal in a 
certain place A. would pay B. for any articles 
so deposited. B. afterwards stole and de- 
posited in the agreed place certain articles. 
A. did not know that any property had been 
stolen and did not know that the articles had 
been so deposited, and made no payment 
and did no act in regard to such articles. 
Held, that A. was not guilty of receiving 
property knowing it to have been feloniously 
stolen within the meaning of section 307 of 



343 



CRIMINAL LAW. 



344 



the Crimes Act 1890. Per Hodges and Chom- 
ley, J J. — There was no evidence that A. 
" received " the property, or that he knew it 
■was stolen. Per Gussen, J. — Although 
guilty knowledge and receiving need not 
always be simultaneous, there must at some 
time be a combination of receipt and guilty 
knowledge — not a general guilty knowledge 
but a guilty knowledge with respect to the 
particular goods received. Rex v. Merriman, 
<1907) V.L.R., 1 ; 28 A.L.T., 108 ; 12 A.L.R., 
571. JF.O. 

Receiving stolen goods — Guilty knowledge, 
evidence of — Anticipated defence of innocent 
receipt — Evidence to rebut — Course of dealing 
— Finding of " burglar's kit " on prisoner's 
premises.] — See post, XXII. — Practice ; (re) 
evidence ; (11) Evidence to Meet Anticipated 
Defence. Rex v. 0' Kane, (1910) V.L.R., 8 ; 
'31 A.L.T., 110; 15 A.L.R., 628. 

Recent possession — Possession of skirt and 
Mouse nine months after their being stolen — 
Palse statements made by person found in pos- 
session of such articles — Evidence, admissi- 
bility of.] — See post, XXII. — Practice ; 
(a) evidence ; (8) Recent Possession. Rex 
v. McCaffery, (1911) V.L.R., 92 ; 32 A.L.T., 
105; 17 A.L.R., 40. 

XVII. — Secret Commission, Ofjences Re- 
latino to. 

Secret Commissions Prohibition Act 1905 
(No. 1974), sees. 2, 14 — Giving money to 
agent without principal's knowledge — Burden 

of proof.] — Where, without his principal's 
knowledge, money is given to an agent the 
receipt of which would tend to influence the 
agent to show favour to the donor in relation 
to the principal's business, the donor is 
guilty of an offence under section 2 of the 
Secret Commission Prohibitions Act 1905, 
unless he proves that when he gave the money 
he did not intend to influence the agent. Rex 
v. Stevenson, (1907) V.L.R., 475; 29 A.L.T., 
62 ; 13 A.L.R., 383. Hood, J. (1907). 

Secret Commissions Prohibition Act 1905 
(No. 1974), sec. 2 — " Corruptly," meaning 

of.] — " Corruptly " in the Secret Commissions 
Prohibition Act 1905 does not mean merely 
the doing of an act prohibited by the Statute 



but the doing of that act with some wrong- 
ful intention. Rex v. Stevenson, (1907) 
V.L.R., 475 ; 29 A.L.T., 62 ; 13 A.L.R., 383. 
Hood, J. (1907). 

Secret Commissions Prohibition Act 1905 
(No. 1974), sec. 2 — Corruptly giving valuable 
consideration to agent — Secret giving, pre- 
sumption as to corruptness arising from.] — 

The fact that a secret commission has been 
given raises the presumption that it was 
given " corruptly " within the meaning of 
section 2 of the Secret Commissions Prohi- 
bition Act 1905. Rex v. Scott, (1907) V.L.R., 
471 ; 29 A.L.T., 60 ; 13 A.L.R., 143. Cut- 
sen, J. 

Secret Commissions Prohibition Act 1905 
(No. 1974), sec. 2 — Giving of valuable con- 
sideration to agent — Tendency to influence 

agent to Show favour.] — On a, presentment 
for an offence under section 2 of the Secret 
Commissions Prohibition Act 1905 charging 
the prisoner with unlawfully and corruptly 
giving a valuable security to an agent the 
receipt of which would tend to influence the 
agent to show favour to the prisoner in re- 
lation to his principal's affairs or business, 
it is for the jury to decide whether the 
giving of the valuable security would not so 
tend to influence the agent. Rex v. Scolt, 
(1907) V.L.R., 471 ; 29 A.L.T., 60 ; 13A.L.R., 
143. Cussen, J. 

XVIII. — Using Cattle Without Owner's 
Consent. 

Crimes Act 1890 (No. 1079), sec. 74— Using 
another person's cattle without his consent- 
Unlawful user by person in lawful possession.] 
— A person who is entrusted by the owner 
with the possession of a horse for the purpose 
of grazing it commits an offence under sec- 
tion 74 of the Crimes Act 1890 if he uses it 
for his own purposes without the consent of 
the owner. Wimble v. Foulsham, (1908) 
V.L.R., 98; 29 A.L.T., 158; 13 A.L.R., 
727. Hodges, J. (1907). 

XIX. — Various Statutory Offences ; Lia- 
bility for Joint Of*ence. 

Butchers and Abattoirs Act 1890 (No. 1069), 
sec. 26— Slaughtering cattle without licence— 



345 



CRIMINAL LAW. 



346 



Several persons joining in same act — Whether 
offence severable.] — Prima facie two or more 
persona who join in the commission of an 
offence are severally liable, unless the words 
of the Act creating the offence are such as to 
compel the Judge to hold that it is joint. 
Accordingly where two or more persons join 
in committing an offence under section 26 
of the Butchers and Abattoirs Act 1890, 
each is separately and severally liable. Dug- 
dale v. Charles Dight ; Same v. West ; Same 
v. George Diylit, (1906) V.L.R., 783 ; 28 
A.L.T., 186; 13 A.L.B., 15. Chomley, J. 
(1907). 

Questions asked by Comptroller-General of 
Customs — Duty to answer — Prosecution pend- 
ing—Person interrogated not charged — Cor- 
poration — Australian Industries Preservation 
Act 1906-1909 (No. 9 of 1906)— No. 26 of 1909, 
sec. 15B.] — See Australin Industries Pre- 
servation Act. Melbourne Steamship Co. 
v. Moorehead, (1912) 15 C.L.R., 333; 18 
A.L.R., 533. 

Insolvency Act 1890 (No. 1102), sec. 141 
(xii.) — Trustee agent or broker — Unlawful 
appropriation of property held as agent — 
Principal's goods sold by agent on commis- 
sion — Relationship of debtor and creditor — 
Insolvency of agent — Whether agent liable for 
offence.] — See Insolvency. In re James, 
32 A.L.T. (Supplement), 12 ; 17 A.L.R. 
(C.N.), 5. 

XX. — Wife Desertion. 

Marriage Act 1901 (No. 1737), sec. 3— 
Criminal law — Wife desertion — Leaving her 
without adequate means of support — Meaning 
of " adequate."] — To a charge under sec- 
tion 3 of the Marriage Act 1901 against a 
husband of deserting his wife without lawful 
or reasonable cause or excuse and leaving her 
without adequate means of support, and 
going to reside or being resident out of Vic- 
toria, the fact that the husband has left his 
wife with means which were adequate to 
support her in her condition of life during the 
period preceding the date of the charge is 
not an answer, but the means must be ade- 
quate to support the wife in her condition 
of life during the period over which the 



desertion is intended to extend. Bex v. 
Mackie, (1908) V.L.R., 689 ; 30 A.L.T., 60 ; 
14 A.L.R., 488. F.C., a? Beckett, Hodges and 
Cussen, JJ. (1908). 

Evidence — Wife, whether competent witness 
against husband — Wife desertion — Neglect to 
comply with order for maintenance — Marriage 
Act 1901 (No. 1737), sees. 3, 4— Crimes Act 
1891 (No. 1231), sec. 34.]— See post, XXII. 
— Practice ; (a) evidence ; (2) Witness, 
Competency of. Bex v. Jacono, (1911) 
V.L.R., 326; 33 A.L.T., 28 ; 17 A.L.R., 340. 

XXI.— Mens Rea. 

Mens rea — Meaning of — Definition of of- 
fence created by Statute — How to be ascer- 
tained.] — Mens rea means no more than that 
the definition of all or nearly all crimes con- 
tains not only an outward and visible element, 
but a mental element, varying according to 
the different nature of the different crimes. 
If in a section creating an offence the language 
is not clear as to what is the outward and 
visible element and what the mental element 
that is to enter into the offence and impose 
responsibility* the rest of the Statute should 
be examined, and the subject matter with 
which it deals and the character of the 
punishment for the offence should be con- 
sidered. Moffat v. Hassett, (1907) V.L.R., 
515 ; 29 A.L.T., 87 ; 13 A.L.R., 266 Hodges, 
J. (1907). 

Corporation — Liability for criminal offences 
— Mens rea.] — (Semble) the criminal liability 
of a corporation for the criminal acts of its 
servants does not at common law extend be- 
yond cases in which the criminal acts (a) 
create a public nuisance or (6) constitute a 
criminal libel. R. v. Kellow, (1912) V.L.R., 
162; 33 A.L.T., 203; 18 A.L.R., 170. 
Cussen, J. 

Butchers and Abattoirs Act 1890 (No. 1069), 
sec. 26 — Slaughtering cattle without licence 
— Mens rea.] — In order to establish an offence 
under section 26 of the Butchers and Abattoirs 
Act 1890 it is not necessary to prove mens 
rea. Dugdale v. Charles Dight ; Same v. 
West; Same v. George Dight, (1906) V.L.R., 
783 ; 28 A.L.T., 186 ; 13 A.L.R., 15. Chom- 
ley, J. 



347 



CRIMINAL LAW. 



348 



Mens rea — Selling liquor without licence — 
Ignorance of nature of liquid sold, whether a 
defence — Licensing Act 1890 (No. 1111), sec. 
182.] — Quaere, whether in a prosecution 
under section 182 of the Licensing Act 1890 
the ignorance of the seller of the fact, that 
the liquid sold was " liquor " within the 
meaning of the Act, is a defence. Gleeson v. 
Hobson, (1907) V.L.R., 148 ; 28 A.L.T., 151 ; 
13 A.L.R., 10. Cussen, J. 

Licensing Act 1890 (No. 1111), sec. 124— 
Supplying liquor to person in state of intoxica- 
tion — Knowledge of intoxicated state of person 
supplied — Whether a necessary ingredient of 
offence.] — See Licensing. Davies v. Young, 
(1910) V.L.R., 369; 32A.L.T..39; 16A.L.R., 
368. 

Licensing Act 1890 (No. 1111), sec. 124— 
Licensing Act 1906 (No. 2068), sec. 73— 
Licensee, liability for act of servant — Supply- 
ing liquor to person in state of intoxication — 
Supply by servant in absence without know- 
ledge and contrary to instructions of licensee.] 
— See Licensing. Davies v. Young, (1910) 
V.L.R., 369 ; 32 A.L.T., 39 ; 16 A.L.R., 368. 

Factories and Shops Act 1905 (No. 1975), 
sec. 119 (1) — Employing person at lower rate 
than rate determined by Special Board — Mens 
rea, whether a necessary element of offence — 
Employer, liability of for act of agent.] — 
See Factories and Shops Act. Billingham 
v. Oaten, (1911) V.L.R., 14; 32 A.L.T., 
170 ; 17 A.L.R., 36. 

Tramways Act 1890 (No. 1148), Second 
Schedule, Part II., Clause 17— " Avoiding " 
payment of fare — Refusal to pay full fare — 
Honest belief that full fare not payable — Mens 
rea.] — See Local Government. Cochrane 
v. Tuthill, (1908) V.L.R., 549; 30 A.L.T., 
50 ; 14 A.L.R., 453. 

XXII. — Practice. 

(a) EVIDENCE. 

(1) Judicial Notice. 

Justices — Local jurisdiction — Objection that 
offence committed outside jurisdiction — How 
Justices may satisfy themselves on the question 
— Whether formal evidence necessary — Effect 



of erroneous conclusion — Justices Act 1890 
(No. 1105), sec. 73 (3).]— See Evidence. 
Le Cocq v. McErvale, (1908) V.L.R., 69; 
29 A.L.T., 134 ; 13 A.L.R., 699. 

(2) Witness, Cornpelency of. 

Evidence — Wife, whether competent witness 
against husband — Wife desertion— Neglect to 
comply with order for maintenance — Marriage 
Act 1901 (No. 1737), sees. 3, 4— Crimes Act 
1891 (No. 1231), sec. 34.]— The prisoner's wife 
is a competent witness against him on an 
indictment for wife desertion under section 
3 (1) (a) of the Marriage Act 1901, but not 
on an indictment for wilfully neglecting to 
comply with an order for maintenance under 
section 4 of that Act. Rex v. Jacono, (1911) 
V.L.R., 326; 33 A.L.T., 28; 17 A.L.R., 
340. F.C., Madden, C.J., Hodges and Hood, 
JJ. (1911). 

Crimes Act 1891 (No. 1231), sec. 34 (3)— 
Witness on own behalf — Cross-examination 
as to credit, when admitted — Evidence as to 
good character in the particular class of trans- 
action in issue — Prosecution under Health 
Acts.] — At the hearing of an information 
under the Health A cts for selling adulterated 
food the defendant in giving evidence said : 
— " I always take every precaution." Held, 
that this statement was evidence of good 
character as applied to the trade in question, 
and that cross-examination directed to 
impeaching it was permissible under section 
34 (3) of the Crimes Act 1891. Gunner v. 
Payne, (1910) V.L.R., 45; 31 A.L.T., 138; 
16 A.L.R., 29. Madden, C.J. 

(3) Corroboration ; Nature of Evidence Neces- 
sary to Justify Conviction. 

Criminal law — Evidence of accomplice- 
Warning by Judge to jury against convicting 
on uncorroborated evidence — Whether Judge 
under positive duty to give warning — Omission 
to give warning, effect of — Quashing convic- 
tion — Entry on record that party ought not 
to have been convicted — Corroboration, suffi- 
ciency of— Crimes Act 1890 (No. 1079), sec. 
482.]— Per Griffith, C.J.— It is now settled 
law in England that if the Judge omits to 
give the jury the usual warning as to convict- 
ing upon the evidence of an accomplioe, 



CRIMINAL LAW. 



350 



and such evidence is not. in fact corroborated, 
the conviction will be quashed. As to whether 
this is a new rule established under the Crim- 
inal Appeal Act 1907 (7 Edw. VII. c. 22), 
or a. modern statement of the common law 
introduced into Australia, quaere. Per Barton 
J. — (1) When the evidence of the accomplice 
is not substantially corroborated, the duty 
of the Judge to warn the jury against acting 
upon it has not yet become a positive rule 
of law, although it is a matter of settled 
practice ; (2) In England if there is an 
absence of substantial corroboration, and the 
Judge has failed to warn the jury according 
to the usual practice, the Court will treat 
the conviction as a " miscarriage of justice " 
within the meaning of the Criminal Appeal 
Act, sec. 41 (1) and set it aside ; quaere, 
whether in such a case in Victoria there 
should be an entry on the record that " the 
party ought not to have been convicted " 
under sec. 482 of the Crimes Act 1890 ; (3) 
The corroboration will be deemed sufficient 
if it is substantial, and is upon a materia] 
part of the case, and it need not amount to 
independent evidence implicating the prisoner. 
Per O'Connor, J. — The omission to give 
warning, where the evidence of the accom- 
plice is not in fact corroborated, is not an 
error in law entitling the prisoner to have 
the conviction quashed, under the Crimen Act 
1890. Peacock v. The King, (1911) 13 
C.L.R., 619 ; 17 A.L.R., 566. 

Crimes Act 1891 (No. 1231), sec. 33— 
Evidence Act 1890 (No. 1088), sec. 50— Un- 
sworn evidence of child of tender years — 
Corroboration — Indecent assault.] — In all 
cases of the nature provided for in sec. 33 
(1) of the Crimen Act 1891 the testimony 
admitted by virtue of that section must, 
notwithstanding sec. 50 of the Evidence Act 
1890, be corroborated by some other material 
evidence in support thereof implicating the 
accused. Such implication of the accused 
ought to be by evidence of some direct 
kind which would show that he more prob- 
ably than any other person was the man 
who committed the offence charged. Per 
a' Beckett, J. — A Judge or Justice may, in 
such cases, if the provisions of sec. 33 (2) 
of the Crimea Act 1891 are fulfilled, disre- 



gard the requirements of sec. 50 of the 
Evidence Act 1890. The King v. O'Brien, 
(1912) V.L.R., 133; 33 A.L.T., 177; 18 
A.L.R., 38. F.C., Madden, C.J., a' Beckett 
and Hodges, JJ. 

Criminal law — Murder — Evidence, suffi- 
ciency of — Circumstantial evidence — Proof of 
fact of death — Proof that prisoner caused 
death — Reasonable hypothesis consistent with 
innocence — Direction to jury — Accomplice, 
evidence of — Corroboration of part of his 
evidence, sufficiency of.] — The appellant, a 
medical practitioner, was convicted of the 
murder of M. D., an unmarried woman. The 
case presented by the Crown was that M. D., 
being pregnant, in pursuance of an arrange- 
ment previously made between the appellant, 
M. D., and a man named Poke, who was 
responsible for her condition, and who then 
represented himself to be her husband, 
entered a private hospital kept by the apel- 
lant, and which was used only by women, on 
9th or 10th August, for the purpose of having 
an operation performed by the appellant 
with a, view to procuring abortion ; that an 
operation was performed by the appellant, 
and a, miscarriage procured, that on 21st 
or 22nd August M. D. died from the results of 
the miscarriage, and that the appellant 
secretly disposed of her body, of which no 
trace was afterwards found. The evidence 
in nearly all branches of the case was circum- 
stantial. Poke was called as a witness 
for the Crown, and gave evidence of conver- 
sations he alleged had taken place between 
himself and the appellant. He said that 
before M. D. died he had admitted to the 
appellant that he was not her husband, and 
that the appellant said — " If you are not 
married you had better leave it to me. Do 
not come to this house again, it might draw 
suspicion " ; that on 22nd August the appel- 
lant told him M. D. was dead ; that they 
discussed the disposal of the body ; that the 
appellant said he would dispose of her 
clothes by burning them at his farm in the 
country, and that on 29th August the appel- 
lant told him the body was buried, and the 
clothes were burnt. Some jewellery belong- 
ing to M. D. was found in the appellant's 
possession, and evidence was given that on 



351 



CRIMINAL LAW. 



352: 



27th August the appellant had taken a bag 
to his farm in the country, and had after- 
wards lit a fire in the scrub. In the ashes 
of the fire certain articles were discovered, 
which it was suggested by the Crown had 
formed part of the wearing apparel, or had 
belonged to M.D. Various other circum- 
stances were relied upon in support of the 
Crown case. The trial took place before 
Madden, C.J., who, in his direction to the 
jury, did not give them the usual caution 
against convicting upon the evidence of the 
accomplice, Poke, if uncorroborated. Held, 
that, upon a trial for murder, the fact of 
death, and the fact that the prisoner caused 
the death, may be proved by circumstantial 
evidence. Where the evidence is circumstan- 
tial, it is the usual practice to direct the jury 
that it is their duty to acquit the prisoner 
if there is any reasonable hypothesis con- 
sistent with his innocence. In this case 
there was evidence of the fact of death. 
Held, also, by Barton and O'Connor, J J., 
that upon the whole of the evidence it was 
open to the jury to find that the appellant- 
caused the death. Held, by Griffith, C.J., 
that there was a reasonable hypothesis con- 
sistent with the appellant's innocence. 
Held, by Barton and O'Connor, J J., Griffith, 
G.J., dissenting, that there was evidence 
in corroboration of Poke's testimony as to his 
alleged conversation with the appellant. 
Peacock v. The King, (1911) 13 C.L.R., 619 ; 
17 A.L.R, 566. 

Evidence — Admissible evidence — Evidence 
such that no reasonable man could form a 
conclusion — Direction to acquit.] — Per Cus- 
sen, J. — " I am of opinion that if at the end 
the evidence is such that the Court thinks 
no reasonable man could form » conclusion 
on it the Court would be bound to direct 
a jury to acquit the prisoner. B. v. Parker, 
(1912) V.L.R., 152; 33 A.L.T., 215; 18 
A.L.R, 150. 

(4) Foreign Law. 

Evidence — Foreign law — Fugitive Offenders 
Act 1881 (44 & 45 Vict. c. 69)— Law of other 
country, whether a question of fact — How 
Magistrate may be satisfied as to.] — See 



Fugitive Offenders. McKehey v. 
Meagher, 4 C.L.R., 265 ; 12 A.L.R., 483. 

Evidence — Foreign law — Rendition of fugi- 
tive offender — Fugitive Offenders Act 1881 
(44 & 45 Vict. c. 69), sees. 5, 29.]— See Fugi- 
tive Offenders. McKelvey v. Meagher, i 
C.L.R., 265 ; 12 A.L.R., 483. 

(5) Evidence not on Oath. 

Unsworn statement of prisoner — Evidentiary 
nature of — Evidence Act 1890 (No. 1088), sec. 
52— Crimes Act 1891 (No. 1231), sec. 38.]— 

When a prisoner makes a statement of facts 
under sec. 52 of the Evidence Act 1890 
the jury should be directed to take the state- 
ment as prima facie a possible version of the 
facts, and to consider it with the sworn evi- 
dence, giving it such weight as it appears 
to be entitled to in comparison with the facts 
established by evidence. Peacock v. The 
Kintj, (1911) 13 C.L.R., 619 ; 17 A.L.R., 566. 
H.C., Griffith, C.J., Barton and O'Connor,. 
JJ. 

Crimes Act 1891 (No. 1231), sec. 38— 
Evidence Act 1890 (No. 1088), sec. 52— State- 
ment by accused person not on oath — Proper 
time to announce intention to make such 
statement.] — Where an accused person calls 
no evidence, the proper time for him to 
announce whether he will make a statement 
under sec. 38 of the Crimes Act 1891 is at the 
conclusion of the case for the Crown ; other- 
wise he will lose his right to make such state- 
ment. B. v. Kellotv, (1912) V.L.R., 162; 
33 A.L.T., 203 ; 18 A.L.R., 170. Cuesen, J. 

(6) Expert- Evidence. 

Criminal law — Evidence — Expert witnesses 
— Finger prints.] — Semble. — Per Cussen, J. ■ 
Expert witnesses may give in evidence state- 
ments based upon their own experience or 
study ; but they caimot be permitted (a) to 
attempt to point out to the jury matters 
which the jury could determine for them- 
selves, or (o) to formulate their empirical 
knowledge as a universal law. Thus, experts 
may depose that there are certain broadly 
marked differences in character between 
the finger prints of different people ; that 
these differences can be classified ; and that 



353 



CRIMINAL LAW. 



354 



it can be illustrated from their expert know- 
ledge what those broad characteristics are. 
But they may not (o) point out similarities 
between the ringer mark of the accused and a 
finger mark alleged to be his, nor (6) state 
that there cannot be two finger marks alike. 
R. v. Parker, (1912) V.L.R., 152 ; 33 A.L.T., 
215; 18 A.L.R., 150. F.O., Madden, 
Hodges and Cussen, J J. 

(7) Dying Declarations. 

Criminal law— Evidence — Dying declara- 
tions in case of homicide — Impending death — 
Expectation of death — Form of deposition.] — 
In order that the declaration of persons in 
extremis may be admitted as evidence in cases 
of homicide against an accused person, the 
person making the declaration must be 
at the time in actual danger of death, must 
have an unqualified belief and » clear appre- 
hension that he will not recover from his 
injury or illness, and death must follow from 
that injury directly or indirectly caused by 
the accused. The length of time elapsing 
between the making of the declarations and 
death is an element to be considered in 
determining whether they were made in 
the definite and full expectation of death. 
Where the circumstances are such that a 
dying declaration is admissible, a witness may 
state a conversation (amounting to such a 
declaration) between himself and the declar- 
ant, although the effect of the conversation 
is reduced to writing and the written state- 
ment is afterwards read over, assented to and 
signed by the declarant. There is no rule 
requiring that the statement shall or shall 
not be by question and answer. Rex v. 
Hope, (1909) V.L.R., 149 ; 30 A.L.T., 167 ; 
15 A.L.R., 87. F.C., Madden, C.J., Hodges 
and Cussen, J J. (1909). Special leave to 
appeal refused by High Court. Hope v. The 
King, (1909) 9 C.L.R., 257. Griffith, C.J., 
Higgins, J. ( Isaacs, J., dissentiente). 

Criminal law — Evidence — Dying declara- 
tions in case of homicide — Impending death — 
Expectation of death.] — Per Madden, C.J. — 
" Therefore, some Judges have said he must 
be ' in hopeless expectancy of immediate 
death ' — of death ' immediately impending,' 
or ' in articulo mortis ' or ' moriens ' as dis- 



tinguished from ' moriturus.' All these ex- 
pressions are rather an effort to be emphatic 
as to the importance of exactitude in the 
determination of the essential things which 
make declarations admissible than any 
determination on the part of the Judges that 
the declaration must have been made within 
some given distance from the death which 
afterwards undoubtedly occurred." Per 
Hodges, J. — I do not feel it possible to define 
the word " impending " beyond saying that 
it means " near " as distinguished from 
" remote," " imminent," as distinguished from 
" deferred." But it is not, in my opinion, pos- 
sible to say that " impending " means any 
number of hours, or any number of days." 
Rex v. Hope, (1909) V.L.R., 149, pp. 158, 
163 ; 30 A.L.T., 167, pp. 169, 171 ; 15 
A.L.R., pp. 88, 90. F.C. 

Criminal law — Evidence — Dying depositions 
in case of homicide — " Settled hopeless 
expectation of immediate death."] — Per Cus- 
sen, J. — " It has been sometimes said that 
the declarant must have a, settled hopeless 
expectation of immediate death. I think 
there is some possibility of difficulty arising 
from the use of each of those words. " Hope" 
is generally compounded of expectation and 
desire. What I really think is meant in the 
language of many Judges is simply " expecta- 
tion." A person may desire his recovery very 
much, and in that sense not have abandoned 
hope, although he has abandoned all expecta- 
tion and humanly speaking has no hope 
. . . So with the word ' settled.' ' Set- 
tled ' may mean either ' absolutely unalter- 
able,' or ' non-fluctuating.' In the latter 
case, proof of change would merely be 
evidence that the expectation or belief was 
not firm and unqualified. So the expression 
' immediate death ' is distinctly ambiguous." 
Rex v. Hope, (1909) V.L.R., 149, at p. 164 ; 
30 A.L.T., 167, at p. 171 ; 15 A.L.R., 87, at 
p. 90. F.C. 

Criminal law — Evidence — Dying declara- 
tions in case of homicide — Impending death — 
Expectation of death.] — Per Cussen, J. — 
" The language of the declarant in this case 
fluctuates to some extent. She said ' I am 
sure I cannot recover,' and also said ' I don't 

12 



355 



CRIMINAL LAW. 



356 



think I will recover.' It has been jointed 
out that the medical man also said ' think.' 
That is ambiguous. Sometimes it means 
' I think it probable ' ; sometimes it means 
' I believe.' If those expressions stood 
alone, I should have doubted whether they 
were by themselves sufficient ; but taking 
them with the other circumstances, I think 
they may be read as — ' I believe I shall not 
recover'." Rex v. Hope, (1909) V.L.R., 
149, p. 165 ; 30 A.L.T., 167, p. 172 ; 15 
A.L.R., 87, p. 91. 

(8) Recent Possession. 

Recent possession — Possession of skirt and 
blouse nine months after their being stolen — 
False statements made by person found in 
possession of such articles — Evidence, ad- 
missibility.] — On the trial of a prisoner 
charged with receiving a skirt and blouse 
which had been stolen nine months pre- 
viously, evidence was tendered by the Crown 
that the prisoner when found in possession 
of the goods, and again on a, subsequent 
occasion, had made statements as to her 
possession of them. These statements were 
contradictory in themselves, and suggestive 
of guilt. On objection raised by prisoner's 
counsel that such statements were inadmis- 
sible, inasmuch as the prisoner might law- 
fully be called upon to explain her possession 
of the articles alleged to have been stolen only 
when such possession was recent and that 
possession of the skirt and blouse nine months 
after the theft was not recent, the Chairman 
of General Sessions over-ruled the objection 
and admitted the evidence. Held, that 
such statements were rightly admitted in 
evidence. Held, also, that the prisoner's 
possession of the skirt and blouse was suffi- 
ciently recent to be within the doctrine of 
recent possession, and to throw on her the 
obligation of satisfactorily explaining her 
possession of them. Rexv. McCaffery, (1911) 
V.L.R., 92 ; 32 A.L.T., 105 ; 17 A.L.R., 40. 
F.C., Madden, C.J., a' Beckett aud Hodges, 
JJ. 

Evidence — Larceny — Recent possession — 
Offences against the Commonwealth — Judic- 
iary Act 1903 (No. 6), sec. 80.]— Semble.— 
The doctrine of recent possession of stolen 



goods applies to offences against the Common- 
wealth. Rex v. Forrest, 34 A.L.T., 95 ; 18 
A.L.R., 495. Cussen, J. (1912). 

(9) Identification of Persons and Property. 

Criminal law — Circumstantial evidence- 
Identification — Finger prints, similarity of.]— 

The resemblance between the ringer print of 
an accused person and a finger print found on 
an article may be sufficient evidence to justify 
a, jury in finding that the finger print found 
on the article was made by the accused. 
R. v. Parker, (1912) V.L.R., 152 ; 33 A.L.T., 
215 ; 18 A.L.R., 150. F.C., Hodges and 
Cussen, JJ. {Madden, C.J., dissentiente), 
(Leave to appeal refused by High Court, 
(1912) 14 C.L.R., 681 ; 18 A.L.R., 157. 
Griffith, C.J., Barton and Isaacs, JJ.] 

Larceny — Receiving — Similarity of goods 
found in possession of prisoner with goods 
alleged to have been stolen — Failure of prisoner 
to give satisfactory account of how goods came 
into his possession — Evidence of stealing and 
of identity of goods, sufficiency of.]— On a 
charge of receiving stolen property belonging 
to the Victorian Railways Commissioners, 
the evidence showed that three kegs of 
cream of tartar, part of a large consign- 
ment, had been missed by the Victorian 
Railways Commissioners, that within a 
fortnight kegs which contained or had con- 
'tained cream of tartar aud were similar to 
those lost in size, shape, colour and dimen- 
sions, were found in the possession of the 
prisoners, who gave a false account as to their 
possession of such goods. In the one case 
there was evidence that marks had been 
obliterated from the kegs. In the other case 
there was evidence of an attempt to bribe a 
constable. Held, per a' Beckett and Hood, 
J J. (Cussen, J. dissenting), that there was 
evidence on which the jury might properly 
convict. Held, per Cussen, J., that there 
was not sufficient evidence to identify the 
goods with those lost by the Victorian Rail- 
ways Commissioners. Trainer v. The King, 
4 C.L.R., 156 ; 13 A.L.R., 53, and R. v. 
Roche, 13 V.L.R., 150 ; 8 A.L.T., 193, dis. 
cussed. Rex v. Schiffman, (1910) V.L.R., 
348 ; 32 A.L.T., 28 ; 16 A.L.R., 346. In 
this case leave to appeal was refused by the 



357 



CRIMINAL LAW. 



358 



High Court ; see 11 C.L.R., 255; 17 A.L.R., 
150. 

(10) Evidence of Other Acts of Accused and 
of Collateral Matters. 

Inciting to steal goods — Delivery of stolen 
goods by prisoner to third persons to be sold 
or pawned — Evidence of, whether admissible — 
Accomplice's evidence — Corroboration.] — The 
prisoner was charged with inciting M. to 
steal certain goods from his employer. M. 
gave evidence, which was not objected to, 
that tho prisoner requested him to steal the 
goods, that he accordingly stole the goods 
and that he handed them to the prisoner. 
Evidence, objected to by prisoner's counsel, 
was admitted which showed that, shortly 
after receiving the stolen goods, the prisoner 
gave portions of them to various persons, 
who, at his request, pawned or sold them. 
The prisoner was convicted. Held, that the 
evidence objected to was admissible and that 
the prisoner was rightly convicted. Per 
a' Beckett, J. — Although that evidence did 
not corroborate the actual inciting, yet it 
was corroborative of M.'s statement that he 
handed the goods to the prisoner, and might 
be considered by the jury in coming to a, 
conclusion as to the truthfulness of the whole 
of M.'s story. Per Hodges, J. — What was 
said when M. handed the goods to the prisoner 
and what the latter then did with them 
formed part of the res gestae, and the evidence 
was admissible in support of the proposition 
upon which the prosecution was based. Per 
Cusien, J. — The prisoner's conduct after 
receiving the goods was an admission that they 
were stolen for him, and therefore showed » 
motive why he should incite M., and tended 
to support M.'s statement that the prisoner 
did incite him to steal the goods. Rex v. 
Campbell, (1908) V.L.R., 136 ; 29 A.L.T.,.196; 
14 A.L.R., 11. F.C (1908). 

Evidence — Indecent assault — Statement or 
complaint by female assaulted — First reason- 
able opportunity — Statement or complaint in 
answer to questions.] — On a trial for indecent 
assault upon a female child, a statement made 
by the child to the mother with regard to the 
alleged assault is not admissible in evidence 
unless it is shown that the statement was made 



at the first reasonable opportunity under the 
circumstances after the assault. Per Mad- 
den, C.J. — As to the observations in R. v. 
Osborne, (1905) 1 K.B., 551, at p. 556, that 
n. statement is inadmissible where but for 
questions put to her the child or woman 
assaulted would not have made the state- 
ment, Quaere, whether it is not merely a 
dictum, and whether it correctly states the 
law. Rex v. McNeill, (1907) V.L.R., 265; 

28 A.L.T., 182: 13 A.L.R., 99. F.C, 
Madden, C.J., a' Beckett, Hood and Cusoeti, 
JJ. (1907). 

Opium Smoking Prohibition Act 1005 (No. 
2003), sec. 10 — Conviction of principal 
offender of smoking opium — Whether evidence 
against person charged with being privy to 
offending.] — See Evidence. Stapleton v. 
Davis ; Stapleton v. Bell, (1908) V.L.R., 114; 

29 A.L.T., 162 ; 14 A.L.R., 26. 

Court of Petty Sessions — Jurisdiction — Dis- 
cretion as to sentence — Evidence of character 
— Prior convictions.] — See Evidence. O'Don 
nell v. Perkins ; Tognini v. Hargreaves, 
(1908) V.L.R., 537; 30 A.L.T., 45; 14 
A.L.R., 435. 

(11) Evidence to Meet Anticipated Defence. 

Receiving stolen goods — Guilty knowledge, 
evidence of — Anticipated defence of innocent 
receipt — Evidence to rebut — Course of dealing 
— Finding of " burglar's kit " on prisoner's 
premises.] — On a charge of receiving goods 
knowing them to have been stolen, » conver- 
sation which took place between a detective 
and the prisoner with respect to a. " burglar's" 
kit " found with part of the stolen goods under 
the counter in the prisoner's shop was admit- 
ted in evidence. Held, that the evidence 
was wrongly admitted, and that the convic- 
tion should be quashed. Rex v. 0' Kane, 
(1910) V.L.R., 8; 31 A.L.T., 110 ; 15A.L.R., 
628. F.C, Madden, C.J., Hood and Cussen, 
JJ. 

Receiving stolen goods — Guilty knowledge, 
evidence of — Anticipated defence of innocent 
receipt — Evidence to rebut — Admissibility of — 
Course of dealing — Finding of burglar's kit 
on prisoner's premises — Judge's duty as to 
evidence temporarily admitted.] — The prisoner 



359 



CRIMINAL LAW. 



360 



was convicted of receiving stolen goods 
knowing them to have been stolen. At the 
trial evidence that the police had found in the 
prisoner's shop near the tools in question a 
" burglar's kit," was admitted as showing 
guilty knowledge. Held, that the evidence 
was inadmissible to show guilty knowledge. 
If evidence is admitted of an act which if 
followed by other similar acts might show 
a course of dealing on the part of the person 
doing the act, and no evidence of such subse- 
quent acts is given, it is the duty of the Judge 
to strike out the evidence so given, and to 
warn the jury to disregard it. The King v. 
O'Kane, (1910) V.L.R., 8; 31 A.L.T., 110; 
15 A.L.R., 628. S'.C!., Madden, C.J., Hood 
and Cussen, J J. 

(12) Improper Admission of Evidence, 
Effect of. 

See, also, ante (11) Evidence to Meet Antici- 
pated Defence ; and, post, (/) New Trial. 

Justices Act 1890 (No. 1105), sec. 141— 
Order to review conviction — Evidence im- 
properly admitted — Whether Court bound 
either to set aside conviction or remit case 
for re-hearing.] — See Evidence. Knox v. 
Thomas Bible; Knox v. J. L. Bible, (1907) 
V.L.R., 485 ; 29 A.L.T., 23 ; 13 A.L.R., 
352. 

Justices Act 1890 (No. 1105), sees. 141— 
Order to review conviction — Improper admis- 
sion of evidence — Whether duty of Court 
either to set aside conviction or remit for re- 
hearing.] — See Justices of the Peace. 
Macmanamny v. Kino, (1907) V.L.R., 536 ; 
28 A.L.T., 250 ; 13 A.L.R., 258. 

(b) bah,. 

Bail — Person charged with capital offence — 
Whether bail should be allowed — Matters to be 
considered in determining.] — On an applica- 
tion to admit to bail a person charged with a 
capital offence, the matters to be considered 
are the nature of the charge, the character 
of the evidence that is before the Court, and 
the punishment that may be inflicted for the 
offence. Rex (or Ooonan) v. Peacock, 33 
A.L.T., 84 ; 17 A.L.R., 452. 

Bail — Prisoner charged with murder — Pre- 
liminary hearing before Justices pending — 



Granting bail before committal.]— Where a 

person, charged before Justices with the 
murder of a woman whose body had not yet 
been found, had been remanded on the ap- 
plication of the prosecution, for the purpose 
of enabling further searches, and investiga- 
tions to be made, a Judge of the Supreme 
Court allowed, on terms, the liberation of the 
accused on bail until the conclusion of the 
hearing before Justices. Rex (or Coonan) 
v. Peacock, 33 A.L.T., 84 ; 17 A.L.R., 452. 
Hodges, J. (1911). 

(c) LEGAL ASSISTANCE FOR DEFENCE. 

Judiciary Act 1903 (No. 6 of 1903), sec. 69 
(3) — Indictable offences against the Com- 
monwealth — Committal for trial — Appoint- 
ment of counsel for defence — Application- 
Materials in support — " Interests of justice "] 
— In an application under sec. 69 (3) of the 
Judiciary Act 1903 the affidavit in support 
should state the facts with regard to the 
means of the accused in such a way as to 
enable the Judge to decide that the applicant 
is without adequate means to provide for his 
defence. A mere general statement by the 
solicitor for the accused, that he believes 
it. would be unsafe for the accused to be tried 
without being represented by counsel to argue 
points of law which deponent believes can 
be raised in favour of accused, is not sufficient 
to enable the Judge to decide whether it is 
desirable in the interests of justice than an 
appointment of counsel for the defence should 
be made. In deciding whether such appoint- 
ment should be made, the Judge should con- 
trast what would or might occur if counsel 
were not present at the trial, with what might 
be expected to arise if counsel were present. 
Facts and circumstances which may render 
the appointment of counsel for the defence 
desirable in the interests of justice considered. 
Rex v. Forrest, (1912) V.L.R., 466; 34 
A.L.T., 95; 18 A.L.R., 495. Cussen, J. 
(1912). 

Judiciary Act 1903 (No. 6 of 1903), sec. 69— 
(3)— Legal assistance for defence of prisoner— 
Whether solicitor as well as counsel may be 
provided.]— Semble. — Under sec. 69 (3) the 
Attorney-General has power to provide 
not only counsel for the defence, but also a 



361 



CRIMINAL LAW. 



362 



solicitor to instruct such counsel. Rex v 
Forrest, (1912) V.L.R., 466 ; 34 A.L.T., 95 ; 
18 A.L.R., 495. Cussen, J. (1912). 

(d) TRIAL GENERALLY. 

(1) Venue. 
Crimes Act 1890 (No. 1079), sec. 406— 
Venue — Application to change — Trial on 
criminal charge—Disagreement of jury — Re- 
mand of prisoner — Publication of statements 
by jurymen in favour of acquittal — Venue 
of second trial changed to another place — 
" Expedient to the ends of justice. "1— On the 
trial of a prisoner charged with murder at 
the Supreme Court at Ballarat the jury dis- 
agreed, and the prisoner was remanded for 
trial at the next sittings of that Court. A 
letter was subsequently prepared, without the 
prisoner's knowledge, by his solicitor's manag- 
ing clerk, and signed by ten of the jurymen, 
and forwarded to the Attorney-General. 
That letter set out the number of the jury- 
men who had been in favor of an acquittal, 
certain facts and matters that they 
considered justified an acquittal, and con- 
tained an expression of their opinion that it 
was undesirable and unfair to put the prisoner 
on his trial a second time unless further 
evidence against him was forthcoming. The 
main portion of this letter was published in 
several Ballarat newspapers. On an applica- 
tion by the Crown for a change of venue to 
Melbourne. Held, that it was expedient 
to the ends of justice that the second trial 
should take place in Melbourne, and that 
the application should, accordingly, be 
granted. Rex v. Peter Long, (1911) V.L.R., 
30 ; 32 A.L.T., 130 ; 17 A.L.R., 68. Cussen, 
J. (1911). 

(2) Special Jury. 

Juries Act 1890 (No. 1104), sec. 39— Jury- 
Criminal cases — Trial by special jury — Discre- 
tion of Court.] — The power conferred upon 
the Court by sec. 39 of the Juries Act 1890 
to order that a criminal inquest shall be tried 
by a special jury is discretionary. Rex v. 
Uilbum, (1908) V.L.R., 591 ; 30 A.L.T., 59; 
14 A.L.R., 474. Hodges, J. 

(3) Presentment. 

Presentment, sufficiency of — Wrong date 
alleged — Amendment not asked for — Jury 



not misled— Crimes Act 1890 (No. 1079), sec. 
422.] — A presentment charged the prisoner 
with larceny of a cow on 29th December, 1906. 
The evidence showed that he had taken 
possession of the cow in November, 1905, and 
had kept and used it till 29th December, 
when he purported to sell it. The evidence 
for the prosecution at the trial was substan- 
tially the same as that given in the Police 
Court before the prisoner was committed for 
trial, and the attention of the jury was 
directed, both by counsel for the prosecution 
and for the prisoner, and also by the Judge in 
charging the jury, to the conduct of the 
prisoner in November 1905. Objection was 
taken on behalf of the prisoner that the wrong 
date was assigned in the presentment but 
the Crown refused to ask for an amendment. 
The prisoner was convicted. Held, that the 
assignment of a wrong date was an immaterial 
circumstance, and that the conviction should 
be affirmed. Rex v. Tieman, (1908) V.L.R., 
4 ; 29 A.L.T., 136 ; 13 A.L.R., 681. F.C., 
Madden, G.J., a' Beckett and Cussen, J J. 

Presentment — Amendment of — Power of 
Court to amend— Crimes Act 1890 (No. 1079), 
sees. 444, 457.] — The powers of amendment 
conferred by section 444 and 457 of the 
Crimes Act 1890 are not limited to cases of 
prosecutions for offences mentioned in such 
Act. R. v. Kellow, (1912) V.L.R., 162; 33 
A.L.T., 203 ; 18 A.L.R., 170. Cussen, J. 

The charge, what is — Presentment, whether 
the charge itself or a record thereof.] — The 
presentment upon which a man is tried is 
the charge and is not merely the record of 
the charge. Powell v. Wilson and Mackinnon, 
(1908) V.L.R., 574; 30A.L.T., 84; 14A.L.R., 
458. Hodges, J. 

(4) Mode oj Trial where Several Accused Per- 
sons or Several Charyes. 

Criminal trial — Practice — Prisoners pre- 
sented jointly — Separate trials, whether Court 
may order.] — The Court in its discretion has 
power to order the separate trial of persons 
who have been jointly presented on a criminal 
charge. R. v. Stowers, 24 A.L.T., 52 ; 8 
A.L.R., 134, considered. R. v. Downey, 
(1910) V.L.R., 361; 32 A.L.T., 14; 16 



363 



CRIMINAL LAW. 



364 



A.L.R., 319. F.C., a' Beckett, Hodges and 
Cussen, JJ. 

Criminal or quasi-criminal cases — Practice 
— Several persons charged with similar offences 
— Consent to be tried together and to be absent 
from Court — Several persons tried separately 
— Agreement to be bound by evidence taken 

in one case, effect of.] — For observations as 
to the effect in criminal or quasi-criminal 
cases of the consent by several persons charged 
with similar offences to be tried together and 
to be absent, from Court during the whole or 
part of the proceedings, and also as to the 
effect, where persons charged with similar 
offences are tried separately, of an agree- 
ment to be bound by the evidence taken in 
the case of one of such persons and by the 
view taken by the Court of that evidence, 
see Larkin v. Penjold, (1906) V.L.R., 535; 
28 A.L.T., 44; 12 A.L.R., 337. Cussen, J. 
(1906). 

Informations heard together — Same defen- 
dant — Conviction, validity of.] — See Justices 
of the Peace. Joske v. Lubrano, (1906) 
V.L.R., 407 ; 28 A.L.T., 40; 12 A.L.R., 31!. 

(5) Pleading. 

Autrefois acquit — When a good plea — 
Evidence on second charge sufficient to pro- 
cure conviction on first.] — The true test 
whether a plea of autrefois acquit or autrefois 
convict is a sufficient bar in any particular 
ease is whether the evidence necessary to 
support the second charge would have been 
sufficient to procure a legal conviction on 
the first. Li Wan Quai v. Christie, (1906) 
3 C.L.R., 1125 ; 12 A.L.R., 429. H.C., 
Griffith, C.J., Barton and O'Connor, J J, 

Autrefois acquit — Arrest by two constables 
— Dismissal of charge of assaulting one con- 
stable in execution of his duty— Whether an 
answer to charge of assaulting other con- 
stable in execution of his duty.] — The dis- 
missal of a charge of assaulting constable 
A. in the execution of his duty is no bar to a 
charge of assaulting Constable B. in the 
execution of his duty even though the two 
charges arise out of the same set of facts and 
the evidence on both is substantially the some. 



McLiney v. Minster, (1911) V.L.R., 317; 
33 A.L.T., 33 ; 17 A.L.R., 330. F.C., 
Madden, C.J., Hood and Cussen, J J. 

(fi) Witness, Poicer of Judge to Call. 

Witness — Whether Judge may call — Re- 
quest by jury — Further proceedings.] — A 
Judge for the better ascertainment of truth 
has a discretion, whether in a civil or criminal 
case, to call » fresh witness, particularly 
where the jury requests it, and this is so in a 
trial before a jury even when the jury has 
retired to consider its verdict. The Judge 
also has a discretion, after hearing the evidence 
of such fresh witness and having regard to all 
the circumstances of the ease, to say what 
further proceedings if any should be taken, 
e.g., he may permit counsel to cross-examine, 
or to again address trie jury, or may allow 
further evidence to be called. Rex v. Col- 
lins, (1907) V.L.R., 292; 28 A.L.T., 222; 
13 A.L.R., 184. Cussen, J. 

(7) Reserving Decision. 

Two charges against one defendant — Reserv- 
ing decision in first case pending hearing of 
second charge.] — For observations as to 
the propriety of justices reserving their de- 
cision upon one information until they have 
heard the evidence upon a second information 
against the same defendant, where such 
evidence might influence their decision upon 
the first information, see Hunter v. Stewart, 
(1907) V.L.R., 619; 29 A.L.T., 39; 13 
A.L.R., 440. a' Beckett, J. 

(e) APPEAL ; CROWN CASES RESEEVED ; CER- 
TIORARI. 

Criminal law — Appeal to High Court in 
criminal case — Special leave — Evidence — 
Dying declarations.] — On the trial of a woman 
for murder of a girl, statements made by the 
deceased girl within 24 hours of her death, 
which had been reduced to writing and 
signed by her, and also conversations between 
her and the persons to whom she made the 
statements which were reduced to writing, 
were admitted in evidence. The accused 
was convicted. A question as to the admis- 
sibility of this 'evidence having been referred 
to the Full Court, the conviction was affirmed. 
Rex v. Florence Hope, (1909) V.L.R., 149; 



365 



CRIMINAL LAW. 



366 



30 A.L.T., 167; 15 A.L.R., 87. Special 
leave to appeal to the High Court was sought 
on the grounds that the principle upon which 
dying declarations are admissible had been 
wrongly stated, and that where such declara- 
tions are reduced to writing, oral evidence 
of what the deceased said is inadmissible. 
Held ( Isaacs, J., dissenting), applying the 
principle in In re Billet, 12 App. Cas., 459, 
at p. 467, that the case was not one in which 
special leave should be granted. Hope v. 
The King, (1909) 9 C.L.R., 257. H.C., 
Griffith, C.J., Isaacs and Higyins, JJ. 

Leave to appeal to High Court — Applicant 
in prison — Appearance in person — Whether 
High Court has jurisdiction to order that it he 
allowed.] — Where a person is detained in 
the State gaol under a sentence of the State 
Court, the High Court has no jurisdiction 
to order him to be allowed to come before 
the High Court in order that he may person- 
ally apply for leave to appeal from a judgment 
of the Couri of the State. Horwitz v. Connor, 
(1908) 6 C.L.B., 38 ; 14 A.L.R., 342. H.C., 
Griffith, C.J., Barton, O'Connor, Isaacs and 
Higgins, JJ. 

Crimes Act 1890 (No. 1079), sees. 481, 482— 
Crown cases reserved — Question of difficulty 
in point of law — Arising " on the trial," 
meaning of — Whether case may be stated after 
termination of sittings.] — If there was an 
existing point of law which arose on the 
materials at the trial, and which might have 
been taken, such point of law has arisen " on 
the trial " within the meaning of sec. 481 
of the Crimes Act 1890, although at the trial 
no question was raised, and the Judge's atten- 
tion was not directed to it, and the Court may, 
even after the completion of the sittings at 
which the trial took place, state a case under 
sec. 482 of the said Act. R. v. Fitzgerald., 15 
V.L.R., 40 ; 10 A.L.T., 241, and R. v. Brown, 
24 Q.B.D., 357, followed. Rex v. Turnbidl, 
(1907) V.L.R., 11; 28 A.L.T., 103; 12 
A.L.R., 551. Cussen, J. 

Criminal law — Practice — Crown case re- 
served — Right to begin — Crimes Act 1890 (No. 
1079), sec. 481.] — Upon the argument of 
points of law reserved upon a criminal trial 
at the instance of the prisoner, his counsel 



is entitled to begin. Rex v. Shuttleworth, 
(1909) V.L.R., 431; 31 A.L.T., 50; 15 
A.L.R., 492. F.C., Madden, C.J., a' Beckett, 
Hodges, Hood and Cussen, JJ. 

Supreme Court Act 1890 (No. 1142), sec. 25 
— Criminal causes and matters — Proceedings 
by way of certiorari in case of criminal con- 
tempt.] — A proceeding by way of certiorari 
in the case of a criminal contempt is itself a 
criminal cause or matter in the broad sense 
of that phrase, and, semble, is a criminal cause 
or matter within the meaning of sec. 25 of the 
Supreme Court Act 1890. Ex parte Dunn ; 
Ex parte AspinaU, (1906) V.L.R., 584; 28 
A.L.T., 72 ; 12 A.L.R., 418. Cussen, J. 

— Certiorari — Court of General Sessions — 
Person committed for contempt by warrant 
of Chairman — No jurisdiction — Whether act 
judicial or administrative — Party aggrieved — 
Whether entitled ex debito justitise.] — See 
Certiorari, col. 95. Ex parte Dunn ; Ex 
parte AspinaU, (1906) V.L.R., 584 ; 28 A.L.T., 
72 ; 12 A.L.R., 418. 

(/) NEW TRIAL. 

Criminal law — New trial, when to be 
granted after quashing of conviction — Circum- 
stances to be considered in exercise of discre- 
tion — Failure to warn jury against convicting 
on uncorroborated evidence of accomplice — 
Evidence improperly admitted and afterwards 
withdrawn from jury — Crimes Act 1890 (No. 
1079), sec. 482.]— Per Griffith, C.J.-^-Assum- 
ing that the Court has power to grant a new 
trial in capital cases, under the Crimes Act 
1890, sec. 482, this power should be used with 
great caution and should not be exercised as 
of course in every case where a conviction 
is set aside on the ground of irregularity 
at the trial. If there was evidence to go to 
the jury, and the error was of such a nature 
that if it had not been made, the verdict 
would probably have been the same, a new 
trial may be granted. If on the whole case 
it is reasonably probable that, but for the 
error complained of, the verdict would or 
might have been different, » new trial should : 
not be granted. The failure of the Judge 
at the trial to give the jury the usual warning 
as to the convicting upon the uncorroborated 



367 



CRIMINAL LAW. 



368 



evidence of an accomplice, and the mere 
formal withdrawal of evidence which was 
admitted after objection and put an entirely 
different complexion on the whole case, but 
which was afterwards held to be inadmissible, 
are matters to be considered in the exercise 
of the Court's discretion to grant a new trial. 
Per O'Connor, J. — When the facts proved 
at the trial would have been sufficient to 
support the conviction, if the jury had 
been properly directed, a new trial may 
in general be granted. Peacock v. The King, 
(1911) 13 C.L.JR., 619 ; 17 A.L.R., 566. 

(g) PUNISHMENT AND THE .REMISSION 
THEREOF. 

Criminal law — Indeterminate Sentences Act 
1907 (No. 2106), sees. 3, 6, 33— Construction- 
Jurisdiction — Discretionary powers of. Court.] 

— It is a condition precedent to the exercise 
by the Supreme Court of jurisdiction under 
sec. 6 of the Indeterminate Sentences Act 
1907, that «there shall have been an order of 
a Court of Petty Sessions in the form pre- 
scribed by regulations made by the Governor 
in Council. Rex v. Marsden, 31 A.L.T., 144 ; 
15 A.L.R., 643. Ouesen, J. (1909). 

Criminal law — Inderterminate Sentences 
Act 1907 (No. 2106), sec. 6— Prior convictions 
— Evidence — Justices Act 1890 (No. 1105), sec. 
65— Crimes Act 1891 (No. 1231), sec. 45.]— 

Quaere, whether the fact that the admission 
or proof of prior convictions of a prisoner is 
entered in the register of a Court of Petty 
Sessions makes those entries prima facie 
evidence of those convictions on an applica- 
tion to the Supreme Court under sec. 6 of the 
Indeterminate Sentences Act 1907. Rex v. 
Marsden, 31 A.L.T., 144; 15 A.L.R., 643. 
Cussen, J. (1909). 

" Second offence," what is— Pure Pood Act 
1905 (No. 2010), sec. 36.]— Where a Statute 
fixes one penalty for a first offence, and 
another penalty for a second offence, the 
accused must have been convicted of the 
first offence before the commission of the 
second offence in order to justify a convic- 
tion and penalty in the latter case as for a 
second offence. Christie v. Bricknell, 21 
V.L.R., 71 ; 17 A.L.T., 59 ; 1 A.L.R., 59, 



applied. O'Connor v. Bini, (1908) V.L.R., 
567 ; 30 A.L.T., 74 ; 14 A.L.R., 537. 
Hodges, J. (1908). 

"First offence "—" Second offence"— 
Meaning of — Police Offences Act 1890 (No. 
1126), sec. 51 — Street Betting Suppression 
Act 1896 (No. 1436), sec. 7— Using house for 
betting purposes.] — See Police Offences 
Acts. Knox v. Thomas Bible ; Knox v. 
J. L. Bible, (1907) V.L.R., -185; 29 A.L.T., 
23 ; 13 A.L.R., 352. 

Discretion of Governor in Council — Prisoner 
under sentence — Remission of sentence- 
Mandamus.] — Mandamus will not lie to the 
Governor in Council of the State, and no 
Court has jurisdiction to review his discretion 
in the exercise of the prerogative of mercy. 
Horwitz v. Connor, (1908) 6 C.L.R., 38; 14 
A.L.R., 342. H.C., Griffith, C.J., Barton, 
O' Connor, Isaacs and Higgins, J J. 

Crimes Act 1890 (No. 1079), sec. 540— 
Regulations providing for mitigation of sen- 
tence as incentive for good conduct — Habeas 
corpus by prisoner alleging right to liberty 
under regulations.] — Where a writ of habeas 
corpus, which had been obtained by a prisoner 
alleging that he was entitled to his liberty 
under regulations made pursuant to sec. 540 
of the Crimes Act 1890, had been discharged 
by the Supreme Court, the High Court refused 
special leave to appeal. Honcitz v. Connor, 
(1908) 6 C.L.R., 38 ; 14 A.L.R., 342. H.C., 
Griffith, C.J., Barton, O'Connor. Isaacs and 
Higgins, J J. 

Offences against Customs laws — Intent to 
defraud the revenue — Reduction of penalty- 
Customs Act 1901 (No. 6 of 1901), sees. 334, 
240, 241.]— (See Customs. Lewis v. The 
King, (1912) 14 C.L.R., 183; 18 A.L.R., 
239. 

Court of Petty Sessions— Jurisdiction- 
Discretion as to sentence — Evidence of char- 
acter — Prior convictions.] — See Evidence. 
O'Donnell v. Perkins; Tognini v. Ear- 
greaves, (1908) V.L.R., 537 ; 30 A.L.T., 45 ; U 
A.L.R., 435. 

XXIII. — Fugitive Offenders. 
Fugitive Offenders Act 1881 (44 & 45 Vict. 



369 



CRIMINAL LAW. 



370 



C. 69) — Commonwealth of Australia Con- 
stitution Act (63 & 64 Vict. c. 12)— Authority 
of State of Victoria with regard to fugitive 
offenders — How far affected by establishment 
of Commonwealth.] — See Common-wealth of 
Australia Constitution, col. 136. Mc Kelvey 
v. Meagher, 4 C.L.R., 265 ; 12 A.L.R., 483. 

Rendition of fugitive offenders — Law of Vic- 
toria — Effect of establishment of the Com- 
monwealth — Commonwealth of Australia 
Constitution Act (63 & 64 Vict. c. 12)— The 
Constitution, sees. 108, 109 — Fugitive Of- 
fenders Act 1881 (44 & 45 Vict. c. 69).] — See 
Commonwealth op Australia Constitu- 
tion, cols. 135, 136. Mc Kelvey v. Meagher, 
4 C.L.R., 265 ; 12 A.L.R., 483. 

Commonwealth of Australia Constitution 
Act (63 & 64 Vict. c. 12)— The Constitution, 
sec. 51 (xxix.) — External affairs — Surrender 
of fugitive offenders— Power of Common- 
wealth Parliament with regard to.] — See 
Commonwealth or Australia Constitu- 
tion, col.121. McKelvey v. Meagher, 4 C.L.R., 
265 ; 12 A.L.R., 483. 

Subordinate legislature — Power in criminal 
matters, territorial limits of — " Quitting 
Natal," whether legislature may make it a 
criminal offence — Fugitive Offenders Act 1881 
(44 & 45 Vict. c. 69), sees. 2, 9— Offences to 
which Act applies — Criminality dependent 
upon event happening after " quitting Natal."] 
— Sec. 76 of Law No. 47 of the Colony of 
Natal provides : — " If any person who is 
adjudged insolvent or has his affairs liquidated 
by arrangement after the presentation of an 
insolvency petition by or against him or the 
commencement of the liquidation or within 
four months before such presentation or 
commencement quits Natal and takes with 
him . . . any part of his property 
to the amount of £ 20 or upwards which ought 
by law to be divided amongst his creditors 
he shall (unless the jury is satisfied that he 
has no intent to defraud) be guilty of an 
offence punishable with imprisonment for a 
term not exceeding two years with or without 
hard labor." In proceedings under the 
Fugitive Offenders Act 1881 for the rendition 
of a fugitive accused of the crime of contra- 
vening the above Law it appeared that the 



fugitive had not been adjudged insolvent 
until after he had left Natal. Held, that the 
Law was not ultra vires of the legislature 
of Natal. Held, also, that the acts which 
the law of Natal made an offence had been 
completed so far as they rested with the 
fugitive if he, being a person whose financial 
position was such, and who within Natal had 
done or suffered such an act as rendered him 
liable to be adjudged insolvent, had left 
Natal, taking with him property to the said 
amount divisible amongst his creditors, and 
that the fact that he had not actually been 
adjudged insolvent was not material. 
McKelvey v. Meagher, 4 C.L.R., 265; 12 
A.L.R., 483. H.C., Griffith, G.J., Barton and 
O'Connor, J J. (1906). 

Fugitive Offenders Act 1881 (44 & 45 Vict. c. 
69) — " Judge of a superior Court " — " Magis- 
trate." — See Fugitive Offenders. McKel- 
vey v. Meagher, 4 C.L.R., 265 ; 12 A.L.R., 483. 

Fugitive Offenders Act 1881 (44 & 45 Vict, 
c. 69), sees. 3, 5, 9 — Warrant for apprehension 
of fugitive— Statement of offence charged, 
sufficiency of.] — -See Fugitive Offenders. 
McKelvey v. Meagher, 4 C.L.R., 265; 12 
A.L.R., 483. 

Fugitive Offenders Act 1881 (44 & 45 Vict, 
c. 69), sec. 5 — Endorsed warrant — Statement 
of offence, sufficiency of.]— -See Fugitive 
Offenders. Mc Kelvey v. Meagher, 4 C.L.R., 
265 ; 12 A.L.R., 483. 

Justices Act 1890 (No. 1105), sec. 141— 
Fugitive Offenders Act 1881 (44 & 45 Vict, 
c. 69) — Order by Victorian Magistrate exer- 
cising powers conferred by Imperial Act — 
Whether it may be dealt with by order to 
review.] — See Fugitive Offenders. O'Don- 
nell v. McKelvey, (1906) V.L.R., 207; 27 
A.L.T., 164 ; 12 A.L.R., 39. 

Fugitive Offenders Act 1881 (44 & 45 Vict, 
c. 69), sees. 5, 6 — -Fugitive committed to 
prison to await return — Legality of detention 
affirmed by Supreme Court — Bail, whether 
Court may grant.] — See Fugitive Offenders. 
Re McKelvey, (1906) V.L.R., 304; 12 
A.L.R., 168. 

Fugitive Offenders Act 1881 (44 & 45 Vict, 
c. 69), sees. 5, 6 — Fugitive committed to 



371 



CRIMINAL LAW. 



372 



prison to await return — Legality of detention 
affirmed by Supreme Court — Appeal to High 
Court — Bail.] — See Fugitive Offenders. 
Re McKelvey, (1906) V.L.R., 304; 12 
A.L.R., 209. 

Service and Execution of Process Act 1901 
(No. 11), sec. 18 — Person arrested on warrant 
issued in another State — Duty of Justice of 
Peace before whom such person is brought.] — 

See Service and Execution of Process Act. 
O'Donnell v. Heslop ; The King v. Cresswell, 
Ex parte Heslop, (1910) V.L.R., 162; 31 
A.L.T., 173 ; 16 A.L.R., 168. 

Service and Execution of Process Act 1901 
(No. 11), sec. 18— Warrant endorsed for 
execution in another State — Apprehension of 
accused on unsustainable charge — Exercise 
of discretion by Justice — Jurisdiction of Judge 
— Review of Justice's discretion by Judge.] — 
See Service and Execution of Process 
Act. In re George, (1909) V.L.R., 15; 30 
A.L.T., 141 ; 15 A.L.R., 27. 

Service and Execution of Process Act 1901 
(No. 11), sec. 18 (4)— Application to Judge — 
Jurisdiction — Whether original or appellate.] 

— See Service and Execution of Process 
Act. O'Donnell v. Heslop ; The King v. 
Cresswell, Ex parte Heslop, (19101 V.L.R., 
162 ; 31 A.L.T., 173 ; 16 A.L.R., 168. 

Service and Execution of Process Act 1901 
(No. 11), sec. 18— Person charged with offence 
in another State — Execution of warrant in 
Victoria — Power to discharge accused — 
Whether it may be exercised after his admis- 
sion to bail to appear and answer the charge.] 
— See Service and Execution of Process 
Act. O'Donnell v. Heslop ; The King v. 
Cresswell, Ex parte Heslop, (1910) V.L.R., 
162 ; 31 A.L.T., 173 ; 16 A.L.R.. 168. 

Service and Execution of Process Act 1901 
(No. 11), sec. 18 (4)— Person arrested on war- 
rant issued in another State— Return of such 
person to such other State, whether unjust or 
oppressive— Dispute as to facts alleged in 
defence — Bona fide assurance of dispute by 
prosecutor.] — See Service and Execution 
of Process Act. O'Donnell v. Heslop ; 
The King v. Cresswell, Ex parte Heslop, 



(1910) V.L.R., 162; 31 A.L.T. 173; lft 
A.L.R., 168. 

Service and Execution of Process Act 1901 
(No. 11), sec. 18 (4)— Practice— Application to 
Judge for discharge of prisoner, how made.]— 

See Service and Execution of Process 
Act. O'Donnell v. Heslop ; The King v. 
Cresswell, Ex parte Heslop, (1910) V.L.R., 
162 ; 31 A.L.T., 173 ; 16 A.L.R., 168. 

Service and Execution of Process Act 1901 
(No. 11), sec. 18 (4)— Warrant— Execution- 
Application for discharge of person appre- 
hended — Procedure — Form of order.]— See 

Fugitive Offenders. In re George, (1908) 
V.L.R., 734 ; 30 A.L.T., 113 ; 14 A.L.R., 
699. 

Service and Execution of Process Act 1901 
(No. 11), sec. 18 — Execution of warrant issued 
in another State — Order of Justice of Peace 
directing return of accused — Review of order 
by Judge — Costs, jurisdiction to award.]— See 
Service and Execution of Process Act. 
In re George, (1909) V.L.R., 15; 30 A.L.T., 
141 ; 15 A.L.R., 27. 

XXIV. — Stolen Property. 

See also, Police and Police Regulation 
Act. 

Conversion — Sale of stolen goods— Recovery 
of value of goods from purchaser — Payment by 
cheque — Proceeds afterwards coming to hands 
of owner of goods — Obligation to elect to affirm 
or disaffirm sale.] — See Sale of Goods. 
Creak v. James Moore & Co. Proprietary Ltd., 
(1912) 15 C.L.R., 426 ; 18 A.L.R., 542. 



CROSS-EXAMINATION. 

See EVIDENCE. 



CROWN. 



See also Commonwealth of Australia 
Constitution ; Constitutional Law ; Min- 
ing ; Public Service. 

Minister of the Crown— Attachment— Con- 
tempt of Court— Mandamus— Statutory public 
duty.] — Semble. — There is no privilege in a 



373 



CROWN— CUSTOMS. 



374 



Minister of the Crown entitling him to 
immunity from attachment for contempt of 
Court for his disobedience of a mandamus 
calling upon him to perform a statutory 
public duty. The King v. Watt, Ex parte 
Slade, (1912) V.L.R., 225; 33 A.L.T., 222; 
18A.L.R, 158. F.C., Madden, C.J., Hodges 
and Cussen, J J. 

Relief against forfeiture for non-payment 
of rent — Crown, relief against — Settlement of 
Lands Act 1893 (No. 1311), sees. 5, 10— Lease 
by Board of Lands and Works — Supreme Court 
Act 1890 (No. 1142), sec. 202.]— See Landlord 
and Tenant. The King v. Dale, (1906) 
V.L.R., 662; 28 A.L.T., 140; 12 A.L.R., 
549. 

Chose in action consisting of right against 
the Crown — Assignment — Petition of right 
by assignee — Crown Remedies and Liability 
Act 1890 (No. 10801, sec. 20.]— See Crown 
Remedies and Liability Act. The King 
v. Bro