of their representative capacity. The defendants, who had appeared, did not deny the representative capacity in their defence, and at the hearing their counsel objected that the action should be dismissed, on the ground that it was not shown that the executors had proved the will of the deceased in South Australia. Held, that the defendants if they wished to deny their representative capacity, should have done so expressly. Held, also, that the defendants had submitted to the jurisdiction of the Supreme Court. LEA v. SMITH, 1923 S.A.S.R. 560. [South Australia.]

Death duty-Estate duty-Right of executors to recover duty or deduct from benefits under will. See STAMP DUTY, col. 417.

Appointment of executrix under name adopted by testator as member of religious order. See PROBATE AND ADMINISTRATION, col. 371.

Adding parties in place of deceased party -Adding executors-Magistrate's CourtWhether action abated.-See JUSTICES, col. 247.

Probate duty-Reduction in favour of children When reduction can be claimedAdministration Act (W.A.).-See STAMP DUTY, col. 418.

Will-Adequate provision-Delay in making application-Whether executor justified in distributing estate. See FAMILY PROTECTION Аст.

See also ADMINISTRATION.

FACTORIES AND SHOPS.

Wages boards-Power to appoint-Appointment by Minister of Labour-Validity of appointment—Boards to be appointed by Governor-in-Council-Factories and Shops Act 1915 (No. 2650), ss. 133 (1) and (2) 136 (5) and (6), 138-140-Factories and Shops Act 1919 (No. 3048), s. 2-Factories and Shops Act 1920 (No. 2093), s. 2-Factories and Shops Act 1922 (No. 3252) ss. 14, 15.GOLDMAN v. CHIEF INSPECTOR OF FACTORIES 1924 V.L.R. 33. [Victoria.]

Same case: 45 A.L.T. 83; 29 A.L.R. 497 ; 1923 Digest, col. 160.

Wages boards-Chairman-AppointmentRe-appointment of previous chairmanValidity. Where upon the appointment of a wages board, pursuant to the Factories and Shops Act 1915, as amended by the Act No, 3252, the members cannot agree upon the nomination of a chairman, the Minister of Labour has no power, under s. 140 of the Principal Act (as amended), to re-appoint as chairman the person who was chairman of the immediately pre-existing board. GOLDMAN v. THE CHIEF INSPECTOR OF

FACTORIES (No. 2), 1924 V.L.R. 92; 45 A.L.T. 112; 30 A.L.R. 72. [Victoria].

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Failure of occupier to keep posted lowest prices or rates of payment determined by wages board Whether offence.-The occupier of a shop, to which the determination of a Special Board under the Factories and Shops Act 1915 relative to the lowest prices or rates of payment applies who fails to keep printed, painted or affixed in legible Roman characters in some conspicuous place at or near the entrance" to such shop a true copy of the determination is guilty of an offence against s. 169 of the Act. Dangerfield V. McDonald & Co. [1924] V.L.R., 357 applied. AHEARN V. NELSON, 1924 V.L.R. 127; 45 A.L.T. 127; 30 A.L.R. 103. [Victoria.]

Regulations-Removal of dust from buffing wheels and polishing belts-VentilationHealth of employees Generally-Validity.— Regulations under the Factories and Shops Act 1915 provided that every grinding, polishing or buffing wheel at which dust is generated shall be provided with a hood, connected by means of a pipe to an exhaust fan in such manner as to carry away the dust thrown off by such wheel either to some receptacle, in which the dust shall be confined, or to the outer air. The regulations also prescribed certain details of construction be observed in carrying out these provisions. Held, that the power to make regulations given by s. 242 of the above mentioned Act was not restricted or cut down by s. 62, and that the regulations were validly made under the powers conferred by s, 242. Williams v. Chief Inspector of Factories (1924 V.L.R. 321; 46 A.L.T. 12; 0 A.L.R. 244) affirmed. WILLIAMS v. CHIEF INSPECTOR OF FACTORIES 1924 V.L.R. 391; 30 A.L.R. 306. [Victoria.]

A

Employee Broken time-Employment less than full week and continued thereafter -Right to loaded rate.-Under the Factories and Shops Act 1915, s. 141, as amended by the Factories and Shops Act 1922, s. 18, employees became entitled to additional rates of pay if "employed on time wages for a number of hours less than the number of hours of an ordinary week's work.” printer's employee, having been away from work for about a fortnight owing to accident, resumed work on a Monday morning, worked four days, and was on the following Thursday night paid up to that time at the ordinary rate of wage, Thursday being the regular pay-day in the establishment. She continued work thereafter, and on the next pay day received her wages for the intervening days. She remained in the employment for several months, and afterwards claimed that under s. 141 (3) of the above Act as amended, she was entitled to be paid for the above mentioned four days at the additional rate prescribed by that section. Held, that the additional rate was not applicable, there being nothing in the nature of broken time nor any cessation of the employment before

66

Shops and Offices- -"Shop "-Office adjoining billiard saloon.-Defendants were the proprietors of a large billiard saloon which they were licensed to keep open till 11 o'clock each evening. Adjoining the saloon was a small office in which were kept (inter alia) a small stock of aerated waters and cigarettes for sale to patrons of the saloon. Held, that the office was a shop " within the meaning of the Shops and Offices Act 1921-22, and must be closed both for the sale of aerated waters and cigarettes from 1 p.m. on one day in the week; that as the entrance to the shop was also the entrance to the office, defendants, by virtue of s. 28 might comply with the Act by keeping the door closed with out locking it. HANLON v. BEAN & O'CALLAGHAN, 19 M.C.R. 43. [New Zealand.]

Offence Taking a premium-ApprenticeShop assistant.-The appellant was convicted of a breach of s. 11 (f) of the Shops and Offices Act 1921-1922, by accepting a premium from a Miss M. The defendant was a hair and toilet specialist carrying on business at Palmerston North, and M. arranged with the appellant to pay the latter a premium of £50 to be taught toilet work. M. was with the appellant as a pupil for about 6 weeks and on occasions did work on some of the defendant s clients, but was not paid for such treatment, and she practiced on the appellant and her daughter. M. was not tied down to hours and could please herself as to the hours when she attended the appellant's rooms, but although M. attended during the hours the appellant's rooms were open for business, no special arrangement was made as to hours and she received

no wages. Held, that M. was not an apprentice or a shop assistant within the meaning of the Act. CURRIE v. LOWDEN, 1924 G.L.R. 636 [New Zealand.]

Costumier's business-Controlled by manageress Owner resident abroad-All goods imported Assistant occasionally altering articles.-Defendant lived in Sydney but carried on a costumier's business in New Zealand controlled by a manageress. All goods sold were imported. Occasionally an article required minor alterations and these were done by a female assistant, and no other person was engaged in such work. Defendant was charged that being the occupier of premises in which two or more persons are employed directly or indirectly in any handicraft or in preparing goods for sale he did fail to register such premises as required by the Factories Act, 1921-22. Held, that only one person was so employed on the premises. INSPECTOR OF FACTORIES v. WOOLF, 19 M.C.R. 112. [New Zealand.]

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Industrial Arbitration Award-Jurisdiction to vary closing day fixed by Shops and Offices Act (N.Z.). See INDUSTRIAL ARBITRATION, col. 225.

FAMILY PROTECTION.

Application for Maintenance—Originating Summons issued-Not served until after Estate distributed-Application too late.— Where an origniating summons in an application for maintenance under the Family Protection Act, 1908 is issued but not served, and where, prior to service of such summons, the estate is finally distributed, the application is too late, and the Court will not make any order interfering with the distribution already affected. MCCARTHY v. MITCHELL 1924 N.Z.L.R. 847; G.L.R. 571 [New Zealand.

Family Protection Act, 1908-Whether Power to contract out of the Act.-PARISH v. PARISH, 1924 N.Z.L.R. 307. [New Zealand.]

Same case: 1923 G.L.R. 712; 1923 Digest, col. 161.

the

Adequate provision for the proper maintenance and support of testator's wife or children-Meaning of "adequate provision -Suspensory orders. On appeal from an order made by Adams, J., under the Family Protection Act 1908 that residuary estate of the testator to the extent of £1,000 was to be charged with the incidence and burden of the order to meet any payment to be made under any further order the Court might make for the maintainence and support of the appellant, the Court of Appeal varied the order appealed from by directing that the appellant should receive the lump sum of £1,000 out of the testator's estate. Per Salmon, J., and Reed, J.-1. Proper maintenance and sup

port mean such maintenance and support as it was the moral duty of the testator, having regard to all the circumstances of the individual instance, to provide for his wife or children by means of his testamentary dispositions. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances. The true measure of a testator's moral obligations is not necessarily to be found in the standard of maintenance and the way of life to which his family was accustomed in his lifetime. 2. That the Court had no jurisdiction to make a suspensory order of the kind made by Adams, J.: Parish V. Valentine, (1916 N.Z.L.R. 455) and Toner v. Lister, (1919 G.L.R. 498) disapproved. WELSH v. MULCOCK, 1924 N.Z.L.R. 673; G.L.R. 169, [New Zealand.]

Testator dying intestate as to part of his estate-Lapse of part of residueJurisdiction of Court-Patient in mental hospital. The testator died in 1922, leaving a widow and ten adult children. The widow and one of the children were patients in a mental hospital. The testator by his will gave to his two sons R. and G. all his lands and everything he possessed and declared that they were his only executors, and that their shares were equal. The son G. died in his father's lifetime without issue, with the result that the testator died intestate as to one-half of his estate which estate was worth between £3,000 and £4,000. The plaintiff applied as administrator of the estate of the daughter of the testator, under the Mental Defectives Act 1911 for a further provision out of her father's estate. Held, that on a partial intestacy the Court had jurisdiction to make an order under the Family Protection Act 1908 affecting the entire new Zealand estate, and that a partial intestacy had not the effect of automatically exempting from the incidence of the order the property disposed of by the will, but that as regards the daughter in a mental hospital whose share was less than £150 in value, no order was made, as the matter should properly be left to the operation of the Destitute Persons Act, PUBLIC TRUSTEE v. WILLIS, 1924 G.L.R. 238. [New Zealand.]

Will-Whether adequate provision-Daughter taking nothing under will-Due explanation -Delay in making application. This was an application by a daughter of testator against his executor under the Family Protection Act 1908. Testator died in November, 1922, and probate was granted on the 16th November, 1922. Testator left a son and two daughters, Mrs. M. and the plaintiff, and, apart from £220 given in small legacies, his estate, worth £3,752 8s. ld. was given to the son and Mrs. M. On the 11th November, 1922, plaintiff's solicitors wrote to the executor informing him that plaintiff had instrutced them to make application for an allowance under the

Family Protection Act, but, on the 4th December, 1922, plaintiff herself wrote the executor that she did not intend to dispute her father's will nor to take action in any shape or form. By the 23rd May, 1923, the executor had distributed the estate, and, on the 27th December, the summons herein was issued. The facts showed that the plaintiff's husband had purchased from her father a property worth £2,400 for £1,500 and that he had sold the property a few days after the purchase, making a 60 per cent, profit on the transaction, and that, apart from sums of money for which plaintiff and her husband had made themselves liable as guarantors of their sons liability to a bank, they were in a better position financially and otherwise than plaintiff's brother and sister. The Court did not decide whether, by virtue of the amendment to sub-s, 9 of s. 33 of the Family Protection Act 1908 by the Amending Act of 1921, the application was not too late, and, held, that having received plaintiff's letter of the 4th December, 1922, and the estate being wound up, the executor was justified in distributing the estate and that, no order, should be made. SOLLITT v. FAIRHEAD, 1924 G.L.R. 533. [New Zealand.]

Refund under Family Protection Act of duty paid under Death Duties Act-Limitation of action.-See LIMITATION OF ACTIONS.

Order under Family Protection ActStamp duty.-See STAMP DUTY, col. 421.

FEDERAL LAW.

Practice-High Court-Declaratory orderHypothetical state of facts-Exercise of discretion-Entertainments tax-Rules of the High Court 1911.-The plaintiff company brought an action in the High Court against the Commonwealth in which it alleged that it intended in conducting its place of public entertainment to charge sixpence for admission to the main enclosure where entertainment was provided, and a further sum of sixpence for admission to each of several other enclosures (within the main enclosure) where other entertainments were provided; and that the Commonwealth claimed that the plaintiff should pay or account for tax, pursuant to the Entertainments Tax Assessment Act 1916 and the Regulations made thereunder, in respect of all payments amounting to or exceeding one shilling in the aggregate made by any one person for his admission to the main enclosure and the other enclosures, and intended and threatened to prosecute the plaintiff for offences against the Act and the Regu lations if the plaintiff did not so pay or account. The plaintiff claimed declarations that certain of the regulations were invalid, and that the plaintiff was not liable to pay tax on any payments for admission to any entertainment save that it was liable to pay tax on any payments for admission to a separate entertainment which amounted

to or exceeded one shilling. The parties concurred in stating a case for the opinion of the Full Court upon the questions whether the regulations referred to were invalid and whether the plaintiff was liable to pay entertainments tax on payments for admission to any entertainment other than that on any single payment for admission to an entertainment which amounted to or exceeded one shilling. Held, by Knox, C.J., Isaacs, Higgins, Rich and Starke, JJ., that the questions should not be answered on the ground that, the facts upon which the claim to declarations was based being purely hypothetical, the Court should not make a declaratory order; and, by Higgins, J., on the ground also that the action was not properly brought within

66

the meaning of Order IV., r. 1, of Part I of the Rules of the High Court. LUNA PARK LIMITED v. COMMONWEALTH OF AUSTRALIA, 32 C.L.R. 596. [High Court.]

Same case: 29 A.L.R. 438; 1923 Digest, col. 162.

66

,,

High Court Jurisdiction-Question as to limits inter se of constitutional powers of Commonwealth and State-"In any cause pending "'in Supreme Court of State Appeal from inferior Court of State.-Per Isaacs, Higgins, and Starke, JJ.: An appeal to the Supreme Court of a State from an inferior Court of that State is a cause pending in the Supreme Court of a State within the meaning of s. 40a of the Judiciary Act 1903-1920. Per Higgins, J. Under s. 40A of that Act as soon as it appears to the Supreme Court that the Appeal cannot be completely decided without a decision on the question as to the limits of the constitutional powers of the Commonwealth and of the States, it is the duty of the Supreme Court to drop the case and make no order of any sort. GEORGE HUDSON LIMITED v. AUSTRALIAN TIMBER, WORKER'S UNION, 32 C.L.R. 413; 30 A.L.R. 13. [High Court.]

:

Same case on other points, INDUSTRIAL ARBITRATION JUSTICES.

High Court-Appeal from inferior Court of State exercising Federal jurisdiction— Extension of time for appealing-Court of Petty Sessions of Western Australia-Order to review.-Per Higgins, J.; Where an appeal from a Court of Petty Sessions of Western Australia to the High Court is brought by way of order to review, the High Court may, under Order LIII., r. 6, of the Rules of the High Court, enlarge the time for obtaining the order nisi, notwithstanding that the time limited by s. 197 of the Justices Act 1902-1920 (W.A.) has expired. JIRO MURAMATS บ. COMMONWEALTH ELECTORAL OFFICER FOR THE STATE OF WESTERN AUSTRALIA, 32 C.L.R. 500; 30 A.L.R. 81. [High Court.]

Same case on another point, ELECTORAL LAW.

High Court-Appellate jurisdiction-State Court invested with Federal jurisdiction— Court of Requests of Tasmania-Matter arising under law made by Parliament of the Commonwealth-Wrong decision of fact

giving jurisdiction-The Constitution, ss. 75, 76.-On proceedings in a Court of Requests of Tasmania by a judgment creditor an order was made for the attachment of a debt owing by the Commonwealth to the judgment debtor, the Court wrongly determining that the judgment debtor was an employee in the Commonwealth Service within the meaning of s. 64 of the Commonwealth Public Service Act 1922, which provides that an order "for the attachment of the salary, wages or pay of any officer or employee in the Commonwealth or Provisional Service may be made by any Court of competent jurisdiction." Held, that the matter was one arising under a law made by the Commonwealth Parliament that the Court of Requests was invested with Federal jurisdiction in the matter by s. 39 of the Judiciary Act 1903-1920, and therefore that an appeal would lie to the High Court under that section. COMMONWEALTH V. COLE, 32 C.L.R. 602. [High Court.]

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Acts of officials Requisition of ships Bona fides Cause of action Trespass Transfer of ownership-Liability of the Commonwealth for acts of officials-Conspiracy— Pleading. Two steamers, Emerald Wings and Bright Wings, were requisitioned by the Commonwealth, such requisition purporting to be made under the Defence Act 19031915, s. 67 and Australian Military Regulations 1916, No. 1307, which enabled the Commonwealth to requisition vessels which were required for naval or military purposes. The plaintiffs were the owners of the steamers at the time of bringing the action. having become the owners of the Emerald Wings after requisition and of the " Bright, Wings" prior to requisition. The defendant Scott Fell had been the charterer of the steamers prior to requisition and he remained in control of them after requisition, acting as agent for the Commonwealth. C. was the official of the Commonwealth who was in control of coastal shipping traffic and who was duly authorised to and did requisition the two steamers. The plaintiffs sued in trespass for the taking of the steamers, and to the plea that they had been requisitioned for naval and military purposes to plaintiffs replied that the steamers were not required bona fide or at all for naval and military purposes, on which issue was joined. In effect a conspiracy was alleged between the defendant Scott Fell and C., with the knowledge of the Prime Minister of the Commonwealth, to requisition the steamers ostensibly for naval and military purposes, but actually to benefit the defendant Scott Fell and certain companies. The use to which the steamers had been put prior to requisition and were put after requisition was one which, it was admitted, might be classed as one for naval or military purposes. In answer to questions left to them, the jury found (1) that the steamers were not requisitioned in good faith by the Commonwealth Government for naval and military purposes, and (2) that they were requisitioned in pursuance of an agreement between the defendants that they should

be requisitioned in order to enable the ships to be run in the interests of the defendant Scott Fell subject to a limitation of freight charges in the interests of certain companies. The jury gave a verdict for the plaintiffs for £19,480. The defendants appealed. Held, that if the purpose for which the ships were requisitioned was a naval or military purpose, the requisition was valid, although some subsiduary matters connected with the requisitioning may have been ill-advised, or even designed to injure the plaintiffs and benefit one of the defendants. But that in the present case, as regards those persons connected with the requisitioning and with the leaving the ships under the control of the defendant Scott Fell, there was no evidence of any motive save that of doing what was thought at the time to be the best under the circumstances in the interests of the Commonwealth and of the Empire. Held, by Ferguson and James, JJ. (1) Where goods are handed over under compulsion of a requisition which is in fact invalid the act of taking over such goods is a trespass. (2) Since the Emerald Wings was not at the time of the requisition the property of the plaintiffs, no action was maintainable by them in respect of her being requisitioned, whether such requisition was valid or not. (3) Even if the alleged conspiracy existed between the defendant Scott Fell and C., the Commonwealth was not liable as for the act of an agent since entering into a conspiracy was outside the scope of C.'s, employment. (4) Once it is found that the steamers were requisitioned for the purpose of use in a particular trade, and that such purpose was a naval or military purpose, the question of bona fides does not arise. But bona fides might be material where there was a contest as to whether the vessels had been requisitioned for use in the particular trade. LIMERICK STEAMSHIP Co. LTD. ". THE COMMONWEALTH OF AUSTRALIA ANOR. 24 S.R. 214; 41 W.N. 45. [New South Wales.]

AND

Income Tax Assessment Act 1915-1921 s. 14 Satisfaction of Taxation Commissioner -Review by High Court.-See TAXATION, col. 440.

Officer in public service of State-Transfer to Commonwealth Rights. See PUBLIC SERVICE.

Awards of Federal Arbitration Court and State Arbitration Court-Whether inconsistent application of.-See INDUSTRIAL ARBITRATION, col. 212.

Appeal against State award-Effect of of election to proceed in Federal jurisdiction.— See INDUSTRIAL ARBITRATION, col. 216.

Decree directing inquiries-Appeal to High Court-Application to proceed-High Court Rules. See PRACTICE, col. 357.

High Court Jurisdiction-Original and appellate jurisdictions. See CONSTITUTIONAL LAW.

Special leave to appeal to High Court— Costs Taxation.-See COSTS, col. 90.

Interpretation of contract by Commonwealth for taking over of ammunition factory -Defence Act.-See CONTRACT, col 78.

Jurisdiction of High Court to entertain appeal from Central Court of New Guinea.See CONSTITUTIONAL LAW.

Appeal to the High Court from order of Supreme Court of State granting leave to appeal to Privy Council.-See APPEAL.

Court of Petty Sessions-Jurisdiction— Federal or State-Matters arising under a law of the Commonwealth Farliament.-See JusTICES, col. 249.

FENCE.

Hedge planted close to but not on boundary line-Hedge Boundary fence for many years-Right of occupier of land on which hedge is planted to cut down.-Respondent was awarded damages for the cutting down by appellant of a hedge dividing their respective properties. The hedge had for some years served as a dividing fence, though the line of the hedge was from lft. 8in. to lft. on appellant's property, Held, that the fact that the stumps of the fence were a few inches off the correct boundary line did not entitle the appellant to destroy it, and that his proper remedy, if he wished to have the fence erected on the proper boundary line was to apply to a magistrate under s. 36 (h) of the Fencing Act, 1908. Semble, that the title to the lands in question was not substantially in dispute, or, if it was in dispute, the question only arose incidentally. EASDALE v. BYGATE, 1924 N.Z. L.R. 422; G.L.R. 198.-[New Zealand.]

Adjoining owners

Agreement between

predecessors in title as to ownership of fence Validity Statement of claim Amendment Alternative claim.-Adjoining owners cannot make agreements about the ownership of a fence or the right to remove the whole or any part of it except under the provisions of s. 15 of the Fencing Act 1908. Plaintiff claimed to recover £7 10s., being £2 the value of wire netting removed by defendant from the dividing fence between his property and that of the plaintiff, 10s. labour replacing the netting so removed and £5 damages for alleged wrongful conversion. The plaintiff set up that this wire netting had been put on the fence at the sole expense of M., a predecessor in title of the plaintiff, and that by agreement between M. and S., the then owner of defendant's land, the netting was to belong to M. and that he could do what he liked with it. Plaintiff's solicitor applied to have the claim amended if it was thought necessary to include an alternative claim for damages.