to enquire into Penalty on Ship entering Port with Customs Seal Broken-Seal Broken on High SeasExtra-territorial Jurisdiction. The Court of a State has jurisdiction to enquire whether laws made by the Parliament of the Commonwealth are within the powers conferred on the Parliament by the Commonwealth of Australia Constitution Act, and that jurisdiction is not limited to cases where such laws encroach upon the legislative power of any state. Held, that section 127, 128, 192 of the Customs Act 1901 are intrâ vires the power of the Commonwealth Parliament so far as they impose penalties on the consumption within the territorial waters of Australia of ships' stores, which have not been entered for home consumption, and on the entry into port by a ship whereon the customs seals have been broken without the authority of the proper officer of customs. The words "contrary to this section" in section 192 of the Customs Act 1901, mean without the authority of the proper officer of customs, and the offence created by the latter part of the section is complete on the ship entering port, notwithstanding that the seals were broken more than ten miles from the coast of Australia. Quære, whether the Commonwealth Parliament has jurisdiction to legislate beyond the territorial limits of the Commonwealth. Kingston v. Gadd, 152. s. 31--See Constitution Act Amendment Act 1890. Henningsen v. Williams, 92. 8. 51 (29)--See Extradition Act 1870. In re Gerhard, ex parte Martin, 127. Company-Directors-Promoters M. Misfeasance-Secret Profits-Gift of In an action by the company against the directors in respect of these shares.— Held, that the burden was upon the directors of establishing their nonparticipation in the fraud of the pro moters, and not having discharged Shares - Forfeiture -- Calls- Winding-up "B" Contributory-Registration of Transfer of Shares Compliance with Formalities. The Articles of Association of a company provided that until regis tration of the transfer of shares, and the entry of the transferee's name on the share register, the transferror should be deemed to be the holder thereof; and that when a transfer duly executed had been deposited with the company "a memorial of the same shall within fourteen days after such instrument is deposited be entered in a book to be called the Register of Transfers,' and the name of the transferee shall be entered in the register of members." A transfer was lodged with the company on the 12th February, and the transfer was registered and the transferee's name was placed on the register of members on the 31st March. On the 17th March of the following year the company went into liquidation. Held, that the transferror's name was properly placed on the list of "B" contributories. Tucker v. Mulligan; Ex parte The Federal Bank of Australia Ltd., 217. Liability of-See Customs Act 1901. Stephens v. Robert Reid and Coy., 242. Companies Act 1890 (No. 1074), s. 68-Plaintiff Company Registered in New South Wales - Voluntary Liquidation by Reason of Liabilities -Security for Costs. A plaintiff company registered in New South Wales went into voluntary liquidation on the ground that it could not, by reason of its liabilities, continue its business-Held, that it should be required to give security for the costs of the action. Acetylene Gas Coy. Ltd. v. Markwald, 54. -s. 371-Companies Act 1900 (No. 1699), s. 3 (3)-Policy of Life Assurance-Equitable AssignmentMarshalling of Assets. The provisions of section 371 of Act No. 1074 do not avoid a contract to assign a policy of life assurance, and as between the holder of such a policy and a creditor a binding agreement may be made entitling the creditor to demand a statutory assignment from his debtor, and to receive the proceeds of the policy in the event of his death before assigning. A testator made an equitable assignment to a bank by deposit and letter of lien of his life policy and other securities. The policy was not charged with the payment of debts. The bank, after his death, sold certain of the securities, and delivered other securities and the policy to the executrix, who sold certain of these other securities, and liquidated the liability to the bank: Held, that as between the executrix and other creditors the doctrine of marshalling applied, and that the creditors were entitled to be paid out of the proceeds of the policy an amount equal to that realised by the bank out of the securities other than the policy. Jenkins v. Brahe, 194. Companies Act 1896 (No. 1482), s. 53-Instruments Act 1890 (No. 1103) s. 133-Bill of Sale given by Company-Registration - Mortgagor and Mortgagee-Taxation of Costs-Reasonable Act of Solicitor. A bill of sale given by a company need not be registered under the Instruments Act 1890, it is only necessary to register it under the Companies Act 1896. But, held, that it was reasonable for the solicitor of the mortgagee to register such a bill of sale under -S. 282 - Commonwealth of Australia Constitution Act (63 & 64 Vict., c. 12), 8. 31-Federal Election Work and Labor Liability of Candidate. Section 282 of Act No. 1075 is a section relating to elections, and is therefore incorporated by section 31 of the Commonwealth Constitution Act; Contract made by Firm-Dis- Act 1890. Rubinovich v. Emmett, 84. toms Act 1901. Stephens v. Robert Percentage payable to Master- Costs, Review of Taxation See -Security for-See Companies -Security for-See Service and -Special Scale of-Application -Taxation of-See Companies Costs of Appointment of Um- Costs of First Trial-See County See Practice. Ferne v. Wilson, 47. 90. Government Act 1891. The King v. -s. 133 Practice - Appeal County Court-Non-suit-New Trial -Costs of first Trial. Where in the County Court a judge non-suits the plaintiff at the conclusion of his case, and without hearing the defendant's case, and on appeal to the Full Court the non-suit is set aside and a new trial ordered, the costs of the first trial should abide the event of the new trial. Warnock v. McCulloch, 240. County Court Rules 1891, rr. 197, 200, 204 --See County Court Act 1890. Bongiorno v. Bongiorno, 51. Crimes Act 1890 (No. 1079), s. 142-Embezzlement--Public Servant -Money received by "Virtue of his Employment." In order to constitute an offence under section 142 of the Crimes Act 1890, the accused must have been authorised by the Crown to receive the money alleged to have been embezzled by him. The King v. Houston, 21. 66 دو Crimes Act 1890 Amendment of that company within the meaning Counsel for Marine Board, Ap- Criminal Law - Evidence pearance of-See Marine Act 1890- Court most Easy of Access Wilkinson See Husband and Wife. County Court Act 1890 (No. Section 62 of the County Court Act 1890 applies 8. 121 (3), (5)-See Local Evidence Act 1890 (No. 1088), s. 60-Statement made not in Presence of Prisoner-Right of Jury to Question Witness. On a criminal trial A, a Crown witness, said that she had made a statement to B, another Crown witness, not in the prisoner's presence. B also said that a statement was made to him by A. The jury asked what was the statement and B detailed it. The prisoner having been convicted :-Held, that the statement was not evidence, and that the conviction should be quashed. R. v. James, 10 V.L.R., 193, distinguished. The King v. Coleman, 29. Cruelty, Adultery coupled with-See Husband and Wife. Firkins v. Firkins, 122. Customs Act 1901 (Federal, No. 6), s. 127-See Commonwealth of Australia Constitution Act 1900. Kingston v. Gadd, 152. Act 1901 (No. 2), ss. 22, 24-Document Produced to Customs Officer Untrue Statement-Innocent ErrorMens Rea-Liability of CorporationServant acting within Scope of Authority. A charge may be established under section 234 (e) of the Customs Act 1901 of making an untrue statement in a document produced to an officer of Customs although the statement was made in error and without any fraudulent intention. A corporation is liable to prosecution under this section, where the untrue statement was made by its servant in the course of his duty, and acting within the scope of his authority. Stephens v. Robert Reid and Coy. Ltd., 242. Cy-pres, Doctrine of-See Practice (Probate). Moule v. The AttorneyGeneral, 55. Damage, Fresh - See Easement. Damage caused by False See Husband and Wife. 114. Debt, Civil, under £5-See Justices Act 1898. Hepworth v. Gleeson, 66. Debtor, Examination of-Neglect to Pay. See Imprisonment of Fraudulent Debtors Act 1890. Clarke and Co. v. Reeves, 176. Deduction-See Stamps Act 1890. Domicile-See Husband and Wife. In re Timms, 197. Firkins v. Firkins, 122; Crook v. Crook, 123. Driving, Negligence in-See Police Offences Act 1890. Stait v. Colenso, 245. Drunken Person on Licensed Premises, Permitting Knowledge. See Licensing Act 1890. Hillard v. Fitzpatrick, 91. Duplicate Receipt-See Stamp3 Act 1890. McManamny v. Goodwin, 137. Duplicity--See Street Betting Suppression Act 1896. O'Donnell v. Clementson, 196. such obstruction not only prior to, but also during the six years preceding the action. Shadwell v. Hutchinson, 2 B. & Ad., 97, Bonomi v. Backhouse, 9 H.L.C., 503, and Mitchell v. Darley Main Colliery Co., 11 App. Cas., 127 distinguished. Green v. Walkley, 139. Ejectment See Landlord and Tenant Act 1890. Green v. O'Donoghue, 101. Election, Relator taking part inSee Local Government Act 1890. Rex v. Hendy; Ex parte Clayton, 230. Electric Light and Power Act 1896 (No. 1413), ss. 38, 39-Supply of Electricity-Uniform Price-Preference-Different Prices according to whether Supply for Motive Power or for Light. Section 39 of the Electric Light and Power Act 1896 provides that "The undertakers shall not, in making any agreement for a supply of electricity, show any preference to any council, company or person, and the charge for such supply shall be uniform throughout such area, so that each council, company or person shall be supplied at the same price, and not less than any other council, company or person." Held, by Williams and Hood, JJ. (A'Beckett, J., dissenting), reversing the judgment of Madden, C.J., that the section prohibited the undertaker from charging a lower price for electricity when supplied for motive power than when supplied for light, for by so doing a preference was shown to those persons supplied with electricity for motive power over those supplied with it for light. The Attorney-Generul v. The Mayor &c. of Melbourne, 7, 123. Embezzlement-See Crimes Act 1890. The King v. Houston, 21. Employe, Dismissal of-See Railways Act 1890. Bremner v. Victorian Railways Commissioner, 210. Employers, Representatives ofSee Factories and Shops Act 1900. In re Gibb, 58. and Employers Employes Act 1890 (No. 1087), ss. 38, 41, 43 -Negligence-Action in County Court-Joinder of Common Law and In the Statutory Cause of Action. County Court a cause of action for damages for personal injuries sustained by an employé founded on the provisions of Part III. of the Employers and Employés Act 1890, may be joined with a common law cause of action in respect of the same injuries, and the plaintiff is not bound to elect with which cause of action he will proceed. But the plaintiff can only recover damages in respect of one of the causes of action. Munday v. The Thames Ironworks and Shipbuilding Coy., 10 Q.B.D., 59, distinguished. Stephens v. Austral Otis Coy., Ltd., 201. Duty, Stamp-See Stamps Act 1892. In re Austin, 85. Easement--Right to Light—Statute of Limitations, 21 Jac. I., c. 16, s. 3 -Continuous Obstruction-No fresh Damage New in Kind or Degree. More than six years before action brought the defendant built a wall which obstructed the access of light and air to a window in the plaintiff's house, the plaintiff being then entitled to such access of light and air:-Held, that the Statute of Limitations (21 Jac. I., c. 16, s. 3), was an answer to the plaintiff's claim for damages for Emoluments for Performing Extra Duties-See Public Service Act 1890. Wallace v. The Queen, 167. Engine, Sparks from-See Railways Act 1896. Dennis v. Victorian Railways Commissioner, 103. Enter, Authority to-See Mines Act 1897. Newham v. Duchess of Cornwall G. M. Coy., 178. Entering and Alighting, Reasonable Facilities for-See Negligence. Smith v. Victorian Railways Commissioner, 188. Equitable Mortgage by Vendor-See Transfer of Land Act 1890. General Finance &c. Coy. v. Perpetual Executors &c. Association, 202. Equitable Ownership-See Ship. Steamship "Boveric" Coy. Ltd. v. Howard Smith and Coy. Ltd., 107, 220. Equitable Remedy-See Income Tax Act 1895. Kelly v. The King, 214. Error, Innocent-See Customs Act 1901. Stephens v. Robert Reid and Coy., 242. Escape from place of Legal -s. 60-See Criminal Law. The King v. Coleman, 29. Evidence, Admission of Additional, on Criminal Charge- See Justices Act 1890. Ross v. Heil, 35. In -Person Charged Compellable to give-See Marine Act 1890. re Emmerson, 10. Evidence of Assessment Register-See Income Tax Act 1895. Kelly v. The King, 214. Evidence Relevant to another offence-See Licensing Act 1890. Molyneux v. McPherson, 228. Executors, Identification of Will by -See Practice (Probate). In Will of Donelan, 100. Extradition Act 1870 (33 & 34 Vict., c. 52), ss. 1, 8, 17, 26-Commonwealth of Australia Constitution Act (63 & 64 Vict., c. 12), s. 51 (29)– Offender against Swiss Law-Requisition by Consul to Governor-Warrant by Police Magistrate-Application of Extradition Act to Victoria not withstanding Federation. The requisition for the surrender of a fugitive criminal to the Governor is not absolutely essential before a warrant for the apprehension of such offender is issued by a Police Magistrate. The Extradition Act 1870, having been applied to Victoria before federation, is still applicable to that state, although the Act has not been applied to the Commonwealth. In re Gerhard, ex parte Martin, 127. -ss. 7, 8, 10, 12, 14, 17, 18, 21, 26-Extradition Act 1873 (36 & 37 Vict., c. 60)-Extradition Act 1877 (Victoria)-Habeas Corpus Act (31 Car., c. 2), s. 6--Extradition Treaty with Switzerland, Articles I., II., V. (d), VIII.—Extradition Crime-Fugitive Criminal Reapprehension of Prisoner after Discharge-Evidence British before Police Magistrate Possession-Offence Substantially the Same in both Countries-GovernorGeneral, Jurisdiction of. If a person is accused of a crime, he may be committed to prison in order that he may be surrendered under the Act, provided evidence is brought before the magistrate which would have justified him in committing the prisoner to take his trial for a similar offence alleged to have been committed in Victoria. If the prisoner is surrendered he does not take his trial here, but in his own country, and (semble) a prisoner may be apprehended again after his discharge. If the prisoner has been convicted, proof of the conviction, and the nature of the crime and the sentence, must be produced before the magistrate, and, if the proof be such as would, according to the law of Victoria, be sufficient to establish the fact of his conviction of such a crime, he may be sent back to receive such punishment as the law awards him in his own country. The English Extradition Acts are, by the joint effect of section 17 of the Extradition Act 1870, and of the Orderin-Council of 18th May, 1881, extended to every British possession. Although the offence in each of the two countries is not known by the same name, yet it is sufficient if it is the same in substance. The meaning of the word "Governor" in the Extradition Act 1870 cannot be altered except by the Imperial Parliament, or, perhaps, by the Parliament of the Commonwealth, and, therefore, the Governor-General has no jurisdiction to direct an order to a Police Magistrate in Victoria for the issue of a warrant of a fugitive criminal. Semble, such an order should still be issued by the Governor of Victoria. In re Gerhard, 181. -s. 10-Swiss Treaty, Articles V., VIII., XVIII.-Month-Lunar Month. In a treaty between two Powers the meaning of the language used in the treaty is not to be regulated by the special meaning given to the same words in an Act passed by the Parliament of one of such Powers; and, therefore, where a treaty uses the word "month," a lunar month is intended. In re Gerhard, ex parte Martin, 129. Extradition Act 1873 (36 & 37 Vict., c. 60)-See Extradition Act 1870. In re Gerhard, 181. Extradition Act 1877 (Victoria) -See Extradition Act 1870. In re Gerhard, 181. Extradition Treaty with Switzerland - See Extradition Act 1870. In re Gerhard, 181. Extraterritorial Jurisdiction --See Commonwealth of Australia Constitution Act 1900. Kingston v. Gadd, 152. SS. Martin v. God Fact, Dispute of, on Originating Summons-See Practice. frey, 73. Factories and Shops Act 1900 (No. 1654), ss. 4, 15, sub-s. (1) (7) (10) 16, 17, 18-Special Board Validity of Appointment--Time for Challenging-Separate Boards for Branches of Trades-Minimum Wage -Improvers, What are-Employment of too many Improvers -Whether Sons of Employer are Improvers. A determination of a Special Board de facto appointed by the Governor-inCouncil under the Factories and Shops Acts, and dealing with matters within the Act, can only be challenged in the manner directed by section 16 of Act No. 1654, even where the appointment of the Board is alleged to be invalid. Therefore on a prosecution for employing a greater number of improvers than the proportionate number determined by a Special Board, it is no defence that the Board was invalidly appointed. Nor is it a defence on such a prosecution that the Board has determined no rate of wages for the particular class of work performed by such improvers. Quere, whether, under section 15 of the Factories and Shops Act 1900, one Special Board may be appointed to deal with wages of persons employed in the businesses of butchers, sellers of meat, and makers or sellers of small goods, or whether a separate Special Board should be appointed for each of those businesses. An improver" within the meaning of section 4 of the Factories and Shops Act 1900, includes a person under 21 years of age, who receives smaller wages than those determined by a Special Board for the particular class of work upon which he is engaged, although the wages he is receiving are equal to or higher than those fixed in respect of one or more classes of work in the same trade. The sons of a butcher employed by him in his business in which other persons are also employed, are in the same position as regards the Factories and Shops Acts as strangers. McGlinchy v. Narracott, 15. Pursuant to section 15 (1) of the Factories and Shops Act 1900, the Legislative Assembly passed a resolution that it was expedient to appoint a special Board to determine the rates of wages of persons employed in "the trade of a fellmonger, or woolscourer, or tanner of sheepskins." There was evidence that these three classes of business were, in some cases, conducted as one business: Held, that the Governor-in-Council might law. fully appoint one special Board to deal with all three businesses. Per Holroyd, J.-One special Board may be appointed with respect to the various classes of persons employed in different businesses of the same or a similar character. Persons not employers or employés may be ap pointed by the Governor-in-Council as representatives of the employers or employés respectively upon a special Board. It must appear on the face of a determination of a special Board that each of the classes of employés whose wages are dealt with is a class of persons employed in the trade or business under consideration. Therefore, where one of the classes dealt with was designated "watchmen": Held, that the deter mination to that extent was bad. In re Gibb, 58. Dis The Factories and Shops Act 1896 (No. 1445), s. 48--Justices Act 1890 (No. 1105), s. 199-Shop AssistantWeekly Half-Holiday--Meaning of "Permit"- Trifling Charge missal-Reasons for Dismissal. employer has to see that the weekly half-holiday is taken under section 48 by each of his shop assistants, and it is not sufficient for him to inform his employés that he or she may have a half-holiday if he or she pleases A whole holiday or two half-holidays every second week is not sufficient. Where a charge is made under section 48, such charge cannot be dismissed as trifling under section 191 of the Justices Act 1890. Where justices are asked for their reasons, in view of the questiou whether they treated the case as a trivial one or not, they ought to state them. Ellis v. Hartley, 2. False Statement not Defamatory Causing Damage - Belief in Truth-Duty and Interest of Person making Statement - Malice Cause of Action. A false statement not defamatory, but which reasonably probably might and did produce damage, was made withont malice and under the belief that it was true, and under circumstances such that if the facts stated were true it would have been the defendant's duty and interest to make the statement. Held, no action would lie. The Mentone Racing Club Ltd. v. The Victorian Railways Commissioner, 231. Federal Election Work and Labor-Liability of Candidate. See Constitution Act Amendment Act 1890. Henningsen v. Williams, 92. Fee on Brief-See Lands Compensa tion Act 1890. In re Glassford and the Ferntree Gully, &c., Trust, 74, 159. Fidelity Guarantee-See Guarantee. The King v. Shaw, 24. Finding of Previous Court, Copies of-See Marine Act 1890. In re Emmerson, 10. Firm, Contract made by-Dissolution -Novation. See Partnership. Davis v. Firman and Stevens, 211. -Complaint by-Non-Registration. See Registration of Firms Act 1892. Gleeson Brothers v. Ellison, 172. Footpath, Paving, &c., Requisition to pay. See Local Government Act 1890. Mayor of South Melbourne v. Thomson, 12. Foreclosure-See Transfer of Land Act 1890. In re Burton; ex parte Union Bank, 114. - Gaols Act 1890 (No. 1096), ss. 22, 24-Escaping from Gaol-Removal of prisoner from one Gaol to another Warrant of Inspector-General Approval of Governor Evidence. The approval under the hand of the Governor of a report purporting to be signed by the Inspector-General of Penal Establishments, stating that a prisoner has been removed from one gaol to another, is sufficient evidence that section 22 of the Gaols Act 1890 has been complied with, and that the prisoner is lawfully in custody at the gaol to which he was removed. The King v. O'Connor (No. 2), 232. --ss. 34, 53-Escaping from Gaol -Jurisdiction of Supreme Court. The prosecution of a person for the felony created by section 34 of the Gaols Act 1890 is not a proceeding under that Act within the meaning of section 53. Such a felony is, there fore, properly prosecuted in the Supreme Court. The King v. O'Connor, 200. Gates Left Open-See Vermin Destruction Act 1890. Ross v. Heil, 35. General Sessions, Right of Convicting Justice to appear on Appeal to-See Justices Act 1890. Maher v. Orr, 78. Grazing Licence, Holder of-See Gold Mining Lease, Application 233. Governor, Approval of-See Gaols Act 1890. The King v. O'Connor (No. 2), 232. Governor-General, Jurisdiction of -See Extradition Act 1870. In re Gerhard, 181. Guarantee-Fidelity GuaranteeEmbezzlement by Principal-Voluntary Payments by Principal to Use of Assured-Right of Guarantor to Setoff. A. guaranteed the Crown against any loss by reason of the dishonesty of B., a public servant. B. embezzled certain moneys of the Crown, and also made certain payments out of his own moneys to creditors of the Crown. Held, that in an action by the Crown upon the guarantee A. was not entitled to set off the moneys paid by B. to the creditors of the Crown, as they were voluntary payments. The King v. Shaw, 24. Guilty, Plea of See Street Betting Suppression Act 1896. Clementson, 196. O'Donnell v. See Police O'Donnell v. Plea of-Review. Offences Act 1890. Gardener, 196. Habeas Corpus Act (31 Car. II., c. 2), s. 6-See Extradition Act 1870. In re Gerhard, 181. Habeas Corpus-See Practice. In re Marshall, 50. Half-Holiday, Weekly-See Factories and Shops Act 1896. Ellis v. Hartley, 2. Heirs of Life Tenant, Direction to Transfer to See Practice (Probate). Black v. Cox, 116. House, Proprietary Use of - See Police Offences Act 1890. O'Donnell v. Gardener, 196. -Use of, for Betting-See Justices Act 1890. O'Donnell v. Hitchen, 166. |