against all taxes, etc., in respect of the land sold. Held, that even if the terms of the agreement were adequate to include land tax, such agreement was void under s. 162 of the Land and Income Tax Act 1916. HANNAH V. KOTLOWSKI, 19 M.C.R. 123. [New Zealand.]

Land tax-Mortgagee called on to payBankrupt taxpayer discharged prior to notice of mortgagee-Tax paid by mortgagee— Right to recover.-Sect. 147 of the Land and Income Tax Act, 1923, makes the mortgagee, upon receipt of notice in writing " thereupon personally liable in the same manner as the taxpayer "but until notice he is under no obligation to pay the amount. Sect. 148 gives him a statutory right to recover from the defaulting taxpayer, but only when he pays the tax. Where, therefore, the defendant, a defaulting taxpayer had become bankrupt and had been discharged before the plaintiff as mortgagee had received notice from the Commissioner calling upon him to pay the land tax unpaid by defendant, and the mortgagee had, after notice, paid the tax, held that the debt had arisen by force of the Statute after defendant's discharge and that therefore the discharge was no answer to plaintiff's claim to recover. WALKER CRUICKSHANK, 19 M.C.R. 126. [New Zealand.]

6. WAR TIMES FROFITS TAX (FEDERAL).

v.

War-time profits tax-Assessment-Calculation of War-time profits-Accounting period -Pre-war standard-" Last_pre-war_trade year "-By s. 7 (4) of the War-time Profits Tax Assessment Act 1917-1918 it is provided that for the purposes of this Act the accounting period shall be taken to be the the period of twelve months for which the accounts of the business have been made up for the purposes of the Income Tax Assessment Act 1915-1916, and where the accounts of any business have not been made up for any definite period, or for the period for which they have been usually made up, or a year or more has elapsed without accounts being made up, shall be taken to be such period not being less than six months or more than a year as the Commissioner determines ending on such a date as the Commissioner determines." Held, by Knox, C.J. and Gavan Duffy J. (Isaacs, J. dissenting), that s. 7 (4) impliedly provides that, where the accounts of a business have not been made up for the purposes of income tax but have been made up as usual for the purposes of the business, "the accounting period "shall be the period for which the accounts of the business have been so made up. By s. 16 (12) of the War-time Profits Tax Assessment Act 1917-1918 it is provided that The last pre-war trade year' means the year ending at the end of the last account. ing period before the fifth day of August one thousand nine hundred and fourteen, and 'the last three pre-war trade years' means the three years ending at the three corres

ponding times." The accounts of a business being carried on under an indenture of partnership as from 1st September 1900 were regularly made up for half-yearly periods ending on 28th February and 31st August in each year prior to 5th August, 1914; and no accounts of the business had been made up for the purposes of the Income Tax Assessment Act 1915-1916 prior to the year ending 31st August 1915. Held, by Knox, C.J. and Gavan Duffy (Isaacs, J. dissenting), that under s. 16 (12) the last pre-war trade year of the business for the purposes of assessment under the War-time Profits Tax Assessment Act 1917-1918 ended on 28th February 1914; not on 31st August 1913, as determined by the Commissioner. Per Isaacs, J. By virtue of s. 7 (4) the accounting period' for the purpose of calculating the total war-time profits arising in the respective financial years is in each case the period of twelve months" which begins on 1st July in one calendar year and ends on 30th June in the next calendar year. WALKER V. FEDERAL COMMISSIONER TAXATION, 32 C.L.R. 401; 30 A.L.R. 64. [High Court.]

""

OF

War-time Profits Act-Assessment--A ccounting period-Pre-war trade year-Acts Interpretation Act 1901-1918 (No. 2 of 1901No. 8 of 1918), s. 22.-A partnership, which commenced business in June, 1912, pursuant to its deed of partnership took yearly accounts of its transactions as on the last day of December in each year. In assessing the partnership for war-time profits tax for the year 1916-1917, the Commissioner adopted the period of the calendar year for the purposes of computing the war-time profits. Held, that, for the purposes of assessing the partnership for war-time profits tax under the War-time Profits Tax Assessment Act 1917-1918, the accounting period" was the yearly period ending on the last day of December, and that, as there was only one of such periods before 5th August, 1914, there was within the meaning of s. 16 (12) only one pre-war trade year. Walker & Co. v. Federal Commissioner of Taxation ([1923] 32 C.L.R. 401) (supra), followed and applied. HENDERSON AND SONS v. THE FEDERAL COMMISSIONER OF TAXATION, 34 C.L.R. 294. [High Court.]

66

War-time profits tax-Assessment—Business to which tax applies-Exemption of profession-Meaning of profession Herbal Institute.-Sect. 7 of the War-time Profits Tax Assessment Act 1917-1918. levies a tax upon all war-time profits from any business to which the Act applies; by s. 4 of the Act "business' includes any profession or trade," etc.; and by s. 8 the Act applies to all businesses of any description deriving profits from sources within Australia, with certain exceptions, one of which is stated in s. 8 (1) (d) as follows: 'Any profession the profits of which depend mainly on the personal qualifications of the person by whom it is carried on, and in which comparatively little or no capital expenditure

Herbal Institute " on freehold premises owned by them, professed to cure diseases by herbal remedies. They did not possess any of the qualifications of practitioners in medicine or surgery, nor any special knowledge of medical botany as applied to treatment of human diseases. They prescribed for their patients, and their prescriptions were dispensed by employees on their premises who did not possess any recognised qualifications in dispensing. They made charges, generally of a named sum per month, and those charges included without differentiation the charge for the advice given and for the herbs and herbal medicaments supplied. The latter were largely procured from America and China, and could not readily be purchased locally when required. The appellants were assisted by a staff comprising two trained nurses and a masseur. On the advice of the appellants vapour baths and massage treatment were also given by their employees at the business premises, and special charges were made therefor. Held, that the appellants did not exercise or carry on any profession within the meaning of the Act, and were not included in the exception stated in s. 8 (1) (d); and, therefore, that they were not exempt from war-time profits taxation. Held, also, that the words,

or em

War-time profits tax-Assessment-Business-Exception-" Profession ”. Employment 9966 Gratuity "_" Bonus "-Racehorse trainer-Additional tax-Power to remit. Sect. 7 (1) of the War-time Profits Tax Assessment Act 1917-1918 levies a tax upon all war-time profits from any "business to which the Act applies. By s. 4" business" includes any profession.' Sect. 8 (1) provides that the businesses to which the Act applies are all businesses (whether continuously carried on or not) of any description deriving profits from sources within Australia, excepting (c) offices ployments; and (d) any profession the profits of which depend mainly on the personal qualifications of the person by whom it is carried on, and in which comparatively little or no capital expenditure is required"; etc. Held, that, in order to bring his business within the exception of s. (1) (d) of the War-time Profits Tax Assessment Act 19171918, it is not sufficient for the taxpayer to show that his profits depend mainly on his personal qualifications and that comparatively little or no capital is required, but he must also show that his occupation can properly be called a profession." Held, also, that the business of training racehorses for their various owners, separately and individually,

is not a ment

י,

profession"; nor is it an employwithin the meaning of s. 8 (1) (c). Held, further that a payment of a sum of money to a trainer of racehorses by an owner of one of the horses in addition to the stipulated payments is not a gratuity" within the meaning of s. 14 (f) of the Income Tax Assessment Act 1915-1918, but is a gratuity or a bonus" within the meaning of s. 14 (g) of that Act. Held, by Higgins, J., that no officer other than the Commissioner of Taxation has power to relieve a taxpayer from the liability to payment of the additional tax prescribed by s. 55 of the War-time Profits Tax Assessment Act for omission to pay war-time profits tax within the specified time. BRADFIELD v. FEDERAL COMMISSIONER OF TAXATION, 34 C.L.R. 1; 30 A.L.R. 69. [High Court.]

War-time profits tax-Assessment - Deductions from profits-Commonwealth income tax-Taxpayer a company-Shareholder a trustee. Held, that the proper method for determining the deduction, from the profits of a company provided for by sub-ss. 4 and 5 (c) of s. 15 of the War-time Profits Tax Assessment Act1917-1918, of Commonwealth income tax paid in respect of the profits is (a) as to the accounting periods 1916-1917 and 19171918, to find the amounts of income tax that would have been payable by each shareholder of the company if the share of the profits credited or paid to him had been the only income derived by him from sources within Australia, whether the shareholder is a trustee or not; and (b) as to the accounting period 1918-1919, to find the amounts of income tax that would have been payable by each shareholder of the company if the share of the profits credited or paid to him had been the only income derived by him from sources within Australia, but limited where the shareholder is a trustee to the amount for which the trustee is to be separately assessed and liable under s. 26 (2) of the Income Tax Assessment Act 1915-1918. Sendall v. Federal Commissioner of Land Tax ([1911] 12 C.L.R. 653) not followed by Isaacs and Rich JJ., with respect to the war-time Profits Tax Assessment Act 1917-1918. WILLIAM KUHNEL & Co. LTD. v. DEPUTY FEDERAL COMMISSIONER OF TAXATION, 33 C.L.R. 349; 30 A.L.R. 137. [High Court.]

War-time profits tax-Assessment-Deductions from profits-" Income tax paid in respect of the profits "-Payment after accounting period-Income tax on profits paid to shareholders-Dividends paid after accounting period-Capital of business-Meaning of trading profits invested in the business."-Held, by Knox C.J., Higgins and Gavan Duffy, JJ., that under s. 15 (4) (b) of the War-time Profits Tax Assessment Act 1917-1918 a deduction is allowed of income tax paid in respect of the profits of the accounting period notwithstanding that it is paid after the accounting period has expired Held, also, by Knox, C.J., Higgins and Gavan Duffy, JJ. (Isaacs and Rich, JJ. dissenting), that, in the case of a company, for the purpose

or

of estimating under sub-s. 5 (c) the aggregate of the amounts of tax that would have been payable to each shareholder if the share of the profits credited or paid to him had been the only income derived by him from sources in Australia, a dividend declared after the accounting period had expired out of the profits of the accounting period should be taken into account. Held, also, by Isaacs, Higgins and Rich, JJ. (Knox, Č.J. and Gavan Duffy, J. dissenting), that, for the of purpose estimating the aggregate referred to in sub-s. 5 (c) where two more dividends have been paid out of the profits of the accounting period, the income tax which would have been payable by each shareholder should be calculated on the sum of the dividends paid to him and not on each dividend separately. Per Isaacs and Rich, JJ.: The only questions raised by the case being (a) whether a dividend declared after the accounting period had expired out of the profits of the accounting period should be taken into computation, and (b), if it should, whether it should be aggregated with a dividend declared during the accounting period, these questions should be answered; (a) the later dividend being a transaction outside the accounting period is not computable in respect of that period; and (b) if it were so computable it should be aggregated. Held, further, by the whole Court, that, in order that accumulated trading profits" may be invested in the business" within the meaning of s. 17 (1) there must be shown an intention permanently to use those profits for the purposes of the business, and the facts that the profits have been ascertained and that they are being used in the business do not constitute an investment of them in the business. HOOPER & HARRISON LIMITED v. FEDERAL COMMISSIONER OF TAXATION, 33 C. L.R. 458; 30 A.L.R. 205. [High Court.]

7.-ENTERTAINMENTS TAX.

Entertainments tax

Entertainment-Instruction incidental and subordinate to amusement-Entertainments Tax Assessment Act 1916, ss. 2, 7-Entertainments Tax Regulations 1917 (Statutory Rules, 1917 No. 227Statutory Rules, 1918 No. 299), regs. 4, 21.The fact that instruction is given does not of itself prevent what would otherwise be an amusement " from coming within the definition of "entertainment" in s. 2 of the Entertainments Tax Assessment Act 1916. Held, therefore, that an assembly of persons for admission to which payment was made, at which there was dancing for the purpose of amusement and at which instruction was

given which was merely incidental and

subordinate to the amusement character of the proceedings, was an entertainment." CLYDE v. BOLOT, 34 C.L.R. 144; 30 A.L.R. 437. [High Court.]

Hedge on boundary-Right of occupant of adjoining land to cut-Whether title to land in question.-See FENCING.

TORT.

Joint tort-Evidence of. The plaintiff suffered damages from a shot which struck him while he was proceeding along a public road. The two defendants were shooting birds in an adjoining paddock. The evidence shewed that they had entered the paddock together with their guns for the puropse of shooting and had arranged that one would go in one direction the other in a different direction. Held, on the evidence that the defendants were not joint tortfeasors. WILLIS V. ALLEN & HARRISON, 1923 S.A.S.R. 146. [South Australia.]

Bankruptcy Act (N.S. W.)-Cross demand" including claim for unliquidated damages for tort.-See BANKRUPTCY, col. 24.

Claim against Government of South Australia -Damage to wheat delivered under Wheat Harvest Acts. See NEGLIGENCE, col. 340.

Club Expulsion of member-Liability of members of committee in tort for procuring breach of contract.-See CLUB.

Industrial union preventing expelled member from obtaining employment-Tort-See INDUSTRIAL ARBITRATION, col. 220.

TRADE MARK.

Registration Imposition of conditionDisclaimer of right to exclusive use of added matter-Discretion of Registrar and of CourtEvidence. The appellant applied for the registration of a trade mark consisting of a design of which the word Lincoln" was a most prominent feature, and the application was opposed. Nearly three years after the application was made, the Deputy Registrar decided that the mark should be registered, holding that to a large section of the public the word Lincoln " in fact denoted the goods of the appellant in the market. On appeal by the opponent, the Supreme Court of Victoria decided that the mark should be registered provided that the applicant disclaimed any right to the exclusive use of the word Lincoln." On appeal to the High Court, held, that, as there was no evidence to justify a finding that the word " Lincoln " in fact denoted the goods of the appellant in the market, there was no reason for interfering with the exercise of the discretion given to the Supreme Court by s. 24 of the Trade Marks Act 1905-1912 to impose the condition as to disclaimer. Quaere, whether evidence of user after the date of the application was admissible to prove a right to exclusive use. In re Inns's Trade Mark, (1923 V.L.R. 359; 44 A.L.T. 174; 29 A.L.R. 174) affirmed. INNES v. LINCOLN MOTOR COMPANY, 32 C.L.R. 606; 1924 V.L.R. 46. [High Court.]

Same case : 29 A.L.R. 495; 1923 Digest,

col. 442.

-Use of mark

Infringement- “Camp Pie ". likely to deceive-Identification of name with goods by user. By s. 53 of the Trade Marks Act, 1905-1912 (Commonwealth), it is provided that the rights acquired by registration of a trade mark shall be deemed to be infringed by the use, in respect of the goods in respect of which it registered, of a mark substantially identical with the trade mark, or so nearly resembling it as to be likely to deceive. The plaintiff and the defendant were rival manufacturers of (inter alia) a foodstuff composed of veal, ham, tongue and bacon prepared in jelly and packed in tins. The plaintiff had registered as a trade mark the the following words " Camp Pie" in white Roman letters on a black background, with the word Rex above, and the words,

in small type, consists of ham, bacon, veal and tongue below on the left hand side, and "In jelly " below on the right hand side. The defendant used a label on its tins having (inter alia) a scroll with the words Camp Pie in Jelly" in white Roman letters on a blue-black background, with a monogram with the letters R. & K. above, and with the words consists of ham, bacon, veal and tongue " below the scroll. Held (affirming McCawley, C.J.) that there had been no infringement of the plaintiff's trade mark. Held, (reversing McCawley, C.J., on the facts) that the defendant's label so nearly resembled the plaintiff's label as to be likely to deceive. FOGGITT JONES LIMITED, v. DARLING DOWNS CO-OPERATIVE BACON COMPANY LIMITED, 1924 S.R. (Q.) 123: [Queensland.]

Forfeiture of goods imported into New Zealand-False Trade Description-Whether calculated to deceive Gramophone record made in United States of America bearing substantially same trade-mark as that of owner of registered trade-mark in New Zealand-Manufacturer of record registered owner of trade-mark in America-Patents, Designs, and Trade-marks Act, 1908, ss. 82, 83, 85, 96-Customs Act, 1913, s. 259.MACLAURIN 2. MCILVENEY, 1924 N.Z.L.R.

292. [New Zealand.]

Same case 1923 G.L.R. 494; 1923 Digest, col, 444.

device

Registration Whether trade mark calculated to deceive-Onus-Whether common to trade. In June, 1918, the appellant applied for registration of its trade mark in respect of paints. In January, 1920, the respondent company gave notice of opposition to the application on the ground that the appellant's trade mark so nearly resembled respondent's trade mark as to be calculated to deceive and another ground was added by amendment at the hearing to the effect that the device of a sun or the word sun had become common to the trade, and was included in many of the marks already registered. On the 26th May, 1921, the Registrar refused appellant's application, the main ground of his decision being that appellant's trade mark so closely resembled respondent's as to be calculated to deceive.

In July, 1919, the respondent had applied for registration of its trade mark in respect of paint goods and its application had been opposed by C. & Co., who owned a registered trade mark dated 1898, in respect of paint goods which it alleged respondent's trade mark so closely resembled as to be calculated to deceive. In August, 1922, this objection was sustained. In the respondent's and in C. & Co.'s trade mark, the leading idea was a representation of the sun with a human face thereon casting its rays over the globe, While the leading idea of appellant's trade mark was a distinctive device " B.P." placed in a circle on a representation of the sun itself without any face depicted thereon. The appellant company gave evidence that for years past in the ordinary course of its business it had received orders for paints under the description " B. P. in the Sun" and " B. P. in the Sun's Rays." The respondent company on the other hand claimed to have used its mark only upwards of twelve months, and that its goods were well known to the trade and the public in New Zealand under the name of "Sun Face and Rays" goods, There was not evidence whatever of any person having been actually deceived by the use of appellant's trade mark. Held, (1) that it was incumbent on the appellant to show beyond doubt that his trade mark was not calculated to deceive and that appellant had discharged that onus in every respect; (2) that it had not been proved that the device of a sun or word Sun had become common to the trade. LEWIS BERGER & SONS (AUSTRALASIA) LTD.. v. THE PATTON PAINT Co., 19 24 G.L.R. 294. [New Zealand.]

66

TRADE UNION.

Election of officers-Ballot-CorruptionSpurious votes-Matter of internal regulation Right of action-Jurisdiction of Court.-A statement of claim alleged (inter alia) that an election by ballot of officers of the A.W.U. took place at the end of 1923. The rules of the Union provided that the branch returning officer should be responsible for the conduct of the ballot, but that his decision in all cases should be subject to appeal to the Convention by any candidate directly affected by it. The plaintiff J., was a candidate, and at a local ballot taken at T. received a number of votes. The voting papers from T. were intercepted and tampered with in transit to the returning officer, and he had received spurious votes, purporting to come from nonexistent places, which were included by him in the counting. It did not appear, however, what the proportion of false votes was to the total number of votes recorded, nor that the votes had yet been counted. The plaintiffs asked for orders to restrain the returning officer from declaring the result of the ballot and to compel the Union to take a fresh ballot On demurrer to the statement of claim, held, that the statement of claim disclosed no facts to justify the interference

TRESPASS.

Animals-Horse gored by bull-Trespass— Whether negligence Scienter-Impounding Act, 1908, s. 5. EDWARDS v. RAWLINS, 1924 N.Z.L.R. 333; 1923 G.L.R. 690; 1923 Digest col. 447. [New Zealand.]

Unfenced land in county-Whether damages recoverable for trespass.-The occupier of unfenced land in the counties named in the Appendix A. to the Impounding Act, 1908, may bring his action in any Court of competent jurisdiction for all actual damage sustained by him by reason of the trespass of cattle thereon. In an action for damages for injury done to the appellant's bull by the respondent's bull which had trespassed on the appellant's land, Held, that the injuries to the appellant's bull were inflicted by the respondent's bull, and that the defendant was liable for damages. MARSHALL V. BAIRD, 1924 G.L.R. 35. [New Zealand.]

Stock trespassing on travelling routeor camping reserve Power to impound.— See IMPOUNDING.

Execution of process-Exclusion by bailiff -Damages. See DAMAGES.