Law for Laymen - An Australian Book of Legal Advice and Information. Clear, Concise and Practical

Biography of C. H. Chomley

Charles Henry Chomley was born on 28th April 1868 in Sale, Victoria, Australia. He was the son of banker, Henry Baker Chomley and his wife Eliza (daughter of lawyer and politician, Thomas Turner à Beckett). The second of four children, Chomley attended Trinity College, University of Melbourne, graduating with a BA in 1888, and an LL.B in 1889, consequently being accepted to the Victorian Bar in 1891. Chomley left the legal profession two years later however, and established a farming partnership in Australia with his cousin, Frank Chomley. With a group of friends, he settled in the King River Valley in northeast Victoria.

Chomley returned to Melbourne due to heart problems in 1900 - a move which signalled the launch of his journalistic career. Here, he took up editorship of the illustrated weekly Arena. Dedicated to the arts, politics, and society gossip, the magazine also demonstrated strong support of both the suffragette movement and free trade. Over the following few years, Chomley wrote and co-wrote several works, before setting sail for London in 1907. In 1908 he became editor of the British Australasian, a weekly tabloid that provided Antipodeans in London a link to news, markets, weather, and society information from home. Under Chomley’s editorship, the magazine developed a distinctly more artistic tone, with some summer numbers featuring sketches, poetry, short stories and interviews with prominent members of the Australasian arts community in London. He remained editor of the paper until his death in 1942.

Chomley was heavily interested in both Australian and British politics, and published his novel, Mark Meredith: A Tale of Socialism in 1905. It is an important work in the Australian literary canon as it provides not only an insight into the political sphere, but also the emotions of the Australian people at this changeable time. It depicts a fictitious period in Australian history where socialism has been in place for numerous years, according to Chomley, an entirely negative development. Another politically inspired work is Protection in Canada and Australasia (1904), discussing the federations of the British Empire in relation to free trade and protectionist battles. He maintained his early interest in the law though and wrote The True Story of the Kelly Gang of Bushrangers (1900), a highly researched biography utilising court documents, police records and court evidence. This was followed by The Wisdom of Esau in 1901, another fictional work examining land laws within Australia.

Chomley died on 21st October 1942, in London, England, aged seventy four.

PREFACE.

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THIS little book, in which I have had the assistance of a member of the Victorian Bar, who does not wish his name mentioned, is, as the title states, intended only for laymen. There are lawyers, indeed, who may sometimes find it useful to refresh their memories, but its aim is to give, in handy form, and with a generality of statement to which the expert might take exception, some of the most important principles of the common law, and certain statutory provisions concerning a number of affairs of business and every-day life. Portions of the book deal with special Victorian legislation, such as the Companies Acts; but the great bulk of the information given concerns the law which is common to all the States of Australia and to England. Where not otherwise specified, any Acts of Parliament quoted are those of Victoria. In such cases, with rare exceptions, legislation of a similar nature, varying in more or less important detail, is in force in other parts of the Commonwealth. It is not claimed that a layman will be wise to rely upon the guidance of this volume in disputed legal matters. A layman, indeed, is ill-advised if he rules his conduct on such matters upon anything he reads. Simple books upon a subject so vast and complex as law are necessarily simple at the expense of exhaustiveness, and the huge text books and lengthy reports which supplement the practising lawyer’s professional experience are bewildering and misleading to anyone but an expert. In serious matters, therefore, the author has merely endeavoured to tell, in a manner intelligible to anybody, what to do until the lawyer comes. If he has succeeded in this, he believes the book, full of imperfections as he knows it to be, will be useful to thousands of men and women in giving them some definite knowledge of their legal rights and duties, and the rights and duties of those with whom they enter into legal relations, intentionally or unintentionally, in the course of their daily affairs.

INDEX.

ABUSE OF PROCESS 175

ACCESSORY 175

Accommodation Party 16

ACCORD AND SATISFACTION 175

ACT OF GOD 175

Acts of Insolvency 95

Administration 148-156

Administration Bond 152

Adverse Possession 176

Affidavit 176

Affiliation 176

AGENCY (p.p. 1 to 7)—

Definition of 1

Implied from Conduct 2

Termination 7

Auctioneer as 2

Extent of Authority 2

Wife as for Husband 2

What may be done through 2

Duties of 3

Liability of the Principal 4

Remuneration 4

Liability to Third Parties 7

(See also Principal).

AGENT AND PRINCIPAL 1-8

ALIBI 177

Alimony in Divorce 62

ANCIENT LIGHT 177

ARSON 177

Articles of Association 23

ASSAULT 177

ASSIGN 177

Assignee in Insolvency 99-100

Associate 177

ATTACHMENT 177

ATTORNEY 177

Attornment 177

AUCTIONEERS 9-13

Licenses of, how obtained 9-10

Conduct of Business of 11-13

Penalty for pretending to be 11

Agent for Buyer-Seller 12

Power of to sue for Price of Goods 7-12

Lien of for Fees 7-12

When Sale complete 12

Implied Agent for Highest Bidder 2

AUTREFOIS ACQUIT 178

AUTREFOIS CONVICT 177

BAIL 178

Bailment 178

BATTERY 178

BEQUEST 178

BETTING 178

BIGAMY 178

BILL OF EXCHANGE (14-20)—

Definition of 14

Cheque is 14

Form of 14

Parties to 14

Holder of 15

Accommodation Party 16

Indorsement of 16

Validity of 17

Inland and Foreign 17

Bona-fide Traveller 77

BOND 178

Breach of Promise of Marriage 38

BRIBERY 178

BROKER 178

BURGLARY 178

BY-LAW 179

Calls 27

CAPIAS 179

CAVEAT 179

Caveat in Probate and Administration 150

Certificate of Discharge in Insolvency 103-105

Certiorari 179

Cestui que trust 160

CHAMPERTY 179

CHEQUE (18-20).—

Is Bill of Exchange 14

Definition of 18

Open 18

Crossed 18

Not negotiable 19

Who may cross 19

Drawn on Sunday 19

Ante-dated 19

Post-dated 19

Delay in presenting 19

Stopping Payment of 20

Of Marksman 20

Of Person too ill to Write 20

Death of Drawer 20

Discrepancy between Words and Figures 20

CODICIL 170, 179

COLLUSION 180

Collusion, in Divorce 60

COMMITTEE of a Lunatic 180

COMMON LAW 180

COMPANY (21-32).—

How many may form 21

Trading 21

Unlimited 21

Limited by Shares 21

Memorandum of Association of 21, 23

Limited by Guarantee 22

No Liability 22, 31

Proprietary 22

Articles of Association 23

Special Resolution 23

Directors 24

Promoters 25

Prospectus 25

Shares 26

Preference Shares 26

Calls 27

Forfeiture of Shares 27

Dividends 28

Profits 28

Contracts 28

Contributories 30

Life Assurance Companies 32

Trustee Companies 32

COMPOUNDING A FELONY 180

Compulsory Sequestration 94

Conclusive Evidence 189

Condonation in Divorce

CONSIDERATION 180

(See also Contracts.)

CONSPIRACY 180

CONTRACTS AND AGREEMENTS (33-39).—

Definition of 33

When Writing required 33, 34

Under Seal 33

Statute of Frauds 33

For Sale of Land 35

Grounds for Setting Aside 36

Of Lunatics and Drunken Persons 36

Remedies for Breach 37

Damages 37

Specific Performance 38

Breach of Warranty 38

Contracts of Companies 28

Contributories 30

CONTRIBUTORY 180

CONTRIBUTORY NEGLIGENCE 180

Coroner’s Court 51

COSTS BETWEEN PARTY AND PARTY 181

COSTS BETWEEN SOLICITOR AND CLIENT 181

COURTS (40-52).—

High Court of Australia 40-42

Supreme Court of Victoria 42-43

Country Court 43-45

Court of Mines 45

Court of Insolvency 45

Court of General Sessions 46

Licensing Court 47-49

Courts of Petty Sessious 49-51

Coroner’s Courts 51

Warden’s Court 52

Covenants in a Lease 116-118

Covenants in a Mortgage 137

COVERTURE 181

COVIN 181

CRIME 181

Criminal Líbel 125

CROSS EXAMINATION 181

Curator of Estates of Deceased Persons 153

Damage by Fire 72

Damages for Breach of Contract 37

Deceased Wife’s Sister 78

Decree Absolute 60-61

Decree Nisi 60-61

DEED-POLL 181

DK FACTO 181

DEFEASANCE 181

DEL CREDERE 181

DE JURE 181

DEVISE 182

Directors of Companies 24

Distress for Rent 118-120

Distress under a Mortgage 138

DISTRIBUTION OF ESTATES OF INTESTATES (53-57).—

Per Stirpes, Per Capita 53-54

Hotchpot 54

Share of the Widow 55

Next of Kin 55-57

Dividends 28

DIVORCE (58-62).—

Grounds of 58-59

Procedure in 60

Decree Nisi 60

Decree Absolute 60-61

Collusion 60-61

Intervention by Attorney-General 61

Alimony 62

DOGS (63-65).—

Registration of 63

Damage by 64

Doctrine of Scienter 64

Dog Act (Victoria) 1890 63-65

DOMESTIC SERVANTS 66-67

Notice to terminate Employment 66

Dismissal of 66

Wages of 66

Misconduct of 67

Wrongful Dismissal 67

Right to Reference 67

Domicile as Affecting Marriage 58, 79

DUCES TECUM SUBPŒNA 182

EASEMENT 182

EJECTMENT 121, 182

EMBEZZLEMENT 182

Equitable Mortgage 137

EQUITY 182

EXECUTORS (68-70)—

(See also Probate and Administration).

Accounts of 69

Infant Cannot Act 69

Executors’ Commission 153-154

ESCROW 182

ESTATE TAIL 182

EVIDENCE—Prima Facie 189

EVIDENCE Conclusive 189

EXECUTION 183

EXPARTE 183

Factor 183

Fair Comment 127

FEE SIMPLE 183-184

Felony 183

Feme Couvert 183

Feme Sole 183

FIERI FACIAS 183

FIRE INSURANCE 71-72

Firm, Definition of 73

Firm Name 73

FIRM REGISTRATION 73-74

Flagrante Delicto 183

Foreclosure 139

Forfeiture of Shares 27

FORGERY 183

Fraud Summons 87-92

Fraudulent Preference 98

Freehold 183

GARNISHEE 184

General Sessions, Court of 46

GUARDIAN AD LITEM 185

HABEAS CORPUS 184

HEREDITAMENT 184

High Court of Australia 40-42

HOMICIDE 184

Hotchpot 54

HOTELKEEPERS ANDTRAVELLERS (75-77).—

Law as to Valuables 75

Travellers’ Right to Accommodation 75

Travellers’ Right to Refreshment 75

Travellers’ Right to Remain 75

Distraint in Hotel 76

When Liquor may be sold 76

Hotelkeepers’ Lien 76

Bona fide Lodger 77

Bona fide Traveller 77

Duiies under Health Act 77

Sunday Trading 77

Unlawful Games 77

HUSBAND AND WIFE (78-86).—

Marriage with Deceased Wife’s Sister 78

Legal Union in Australia recognised in England 78

Effect of Domicile 79

Marriage of Minors 80

Presumption in favour of Marriage 80

Presumption of Death 80

Certificate of Marriage 81

Celebration of Marriage 81

Consent necessary for Mariage of Minor 82

Husband’s Control over Wife and Children 82

Custody of Children after Divorce, 82-83

Custody of Illegitimate Child 83

Religion of Children 83

Deserted Wives and Children 83

Evidence of Paternity 84

Married Woman’s Liability for Debt 84

Husband’s Liability on Contracts of Wife 85

IMPRISONMENT OF FRAUDULENT DEBTORS (87-92).—

On Judgment of Supreme Court 87-88

On Judgment of County Court 89-90

On Order of Court of Petty Sessions 90-91

Married Woman cannot be committed to 92

IN COURT, IN CHAMBERS 184

IDEM SONANS 184

INDICTABLE OFFENCE 184

INDICTMENT 184

Indorsement of Bill 16

Industrial Insurance Policies 130

INFANT 185

Infant Executor 89

Infant’s Maintenance from Trust Property 163

IN FORMA PAUPERIS 185

INFORMATION AND COMPLAINT 185

INHERITANCE 185

Injunction 185

Inn, Legal Definition of 75

Inland Bill 17

Innuendo 127

Insolvency, Court of 45

INSOLVENCY (93-106).—

Voluntary Sequestration 93

Compulsory Sequestration 94

Effect of Order for Sequestration 95-96

Acts of Insolvency 95

Petitioning Creditor’s Debt 95

Avoidance of Settlements 97

Avoidance of Certain Transactions 97

Fraudulent Preferences 98

Property Divisible among Creditors 99

Assignees and Trustees 99-100

Duties of Insolvent 101-102

Composition, Liquidations by Arrangement, Deeds of Arrangement 102

Release of Insolvent’s Estate 103

Certificate of Discharge 103-105

INTERLOCUTORY PROCEEDING 185

Interpleader 185

Interrogatory 185

JOINT TENANCY AND TENANCY IN COMMON 107-108

JURIES (109-113).—

Exemptions and Disqualifications 109-110

Common and Special Juries 110-111

Selection of 111

Challenge 112

Disagreement 112

Payment of 112-113

Various Provisions 112-113

Justices 49

LACHES 186

LANDLORD AND TENANT(114-123).—

Various Kinds of Tenancy 114

Termination of Tenancy 114

Tenant at Will—By Sufferance 115

Leases for More Than Three Years 115-116

Covenants in a Lease 116-118

Repairs 117

Non-payment of Rent 118

Distress 118-120

Sale of Goods Distrained 119

Things Exempted from Distress 119-120

Lodgers’ Goods 120

Notice to Quit 120, 121

Ejectment 121

Jurisdiction of Justices 122-123

Conveyancing Act 1904 (Victoria) 123

LARCENY 186

LEADING QUESTION 186

Leases 114-123

LHX SCRIPTA 186

LIBEL AND SLANDER (124-129).—

Publication 124

Distinction between Libel and Slander 124

Truth as a Defence 125

Criminal Libel 125

Presumption of Damage 120

Special & General Damages 126

Fair Comment 127

Innuendo 127

Privilege 128

Malice 129

Licensed Victuallers 75-77

Licensing Court 47

LIEN 186

Life Assurance Company 32

LIFE ASSURANCE COMPANIES AND TRUSTEE COMPANIES 186

LIFE INSURANCE (130-135).—

Who May Insure 130-131

Industrial Policies 130

Material Facts 131

First-class Life 131

Extra Risk 131–132

Suicide 132

Loans on Policies 132

Surrender Value 133

Liability of Policy for Debts 133–135

Provisions of Companies Acts 133-135

Limited Company 21-22

LOCUS STANDI 186

Lodgers’ Goods 120

MALA IN SE 186

Malice in Libel 129

MANDAMUS 186

Mandatory Order 51

MANSLAUGHTER 187

Marksman 20

Memorandum of Association 21-23

MESNE PROFITS 187

MESSUAGE 187

MINER’S RIGHT 187

Mines, Court of 45

Mining Companies 31

MISDEMEANOUR 183

Misrepresentation 36

Mistake 36

MORTGAGE OF LANDS (136-139).—

General Law as to 136

Making and Registration 136-137

Under Transfer of Land Act 136-137

Equitable Mortgage 137

Covenants 137

Power of Sale 138

Distress 138

Foreclosure 139

Executor of Mortgagee 139

Transfer of Mortgage 139

MANSLAUGHTER 187

MURDER 187

NECESSARIES 187

NEGLIGENCE 188

NEXT FRIEND 188

Next of Kin 55, 57

NISI PRIUS 187

No Liability Company 22, 31

NOLLE PROSEQUI 188

Notice of Loss by Fire 71

Notice to Quit 120, 121

Not Negoiiable 19

NULLA BONA 188

ORDER ABSOLUTE 188

ORDER NISI 188

Order to Review 50

ORIGINATING SUMMONS 188, 70

PAROL 188

Partition Act 108

PARTNERSHIP (140-144).—

Nature of 140

Relations of Partners to Persons dealing with them, to each other 140-142

Books of 141

Assignment of Shares 142

Accounts between Partners 142

Dissolution of Partnership 142-144

Distribution of Assets 143-144

Desirability of Written Agreement 144

PAWNBROKERS AND PAWNING (145-147).—

License 145

Pledge, what is 145

Redemption of Pledges 145

Sale of Pledges 145, 146

Interest Chargeable 146

Pawn Tickets 146, 147

Executors of Pawnbroker 147

Various Provisions 147

PENDENTE LITE 189

Per Capita 53, 54

PERJURY 189

Per Stirpes 53, 54

Petitioner in Divorce 58-62

Petty Sessions 49

PLEADINGS 189

Pledges 145, 146

Police Magistrates 49

Power of Attorney 2

Preference Shares 26

PRESCRIPTION 189

PRESENTMENT 189

PRIMA FACIE 189

PRINCIPAL (1-6).—

Definition of 1

Liability of to Third Parties on Contracts of Agent 5

Liability for wrongs done by Agent 6

Privilege in Libel 128

Privy Council, Appeal to 41, 42

PROBATE AND ADMINISTRATION (148-156).—

Powers before grant of 148

Payments without 148-149

Of Estates under £500 149

Caveats 150

Procedure to obtain 150

Granting of 151

Statement of Assets 151

Next of Kin 151

Administration Bond 152

Sureties 152

Curator of Intestate Estates 153

Executor’s Commission 153, 154

Trustee Companies 154

Accounts 154, 155

Foreign Probate 155, 156

PROHIBITION 189

PROMISSORY NOTES (157-159).—

Form of 157

Joint and Several Liability 157

Endorsement and Transfer 158

Renewal 159

Promoters 25

Proprietary Company 22

Prospectus 25

PUISNE 189

QUASH 189

QUI TAM 190

QUO WARRANTO 190

RECOGNISANCE 190

Registration of Firms Act (Victoria) 73-74

REPLEVIN 190

RESIDUE 190

Respondent in Divorce 58-62

SALE OF GOODS 190

Servant 66-67

Shares 26

Slander 124-129

Specific Performance 38

Statute of Frauds 33, 115

SUBPŒNA 190

SUMMONS 191

SUMMONS FOR DIRECTIONS 191

Sureties to Administration Bond 152

Surrender Value 133

Table A, Companies Act 23

Tenancy in Common 107-108

Tenant at Will 115

Tenant by Sufferance 115

TENEMENT 191

TIPSTAFF 191

Tort 101

Transfer of Mortgage 139

Travellers 75, 77

TRESPASS 191

TROVER 191

Trustee Companies 32, 153, 154, 164

Trustees in Insolvency 99-101

TRUSTS AND TRUSTEES (160-165).—

Express and Implied 160

Private and Public Trusts 160

Cestui que Trust 160

Method of Appointing Trustees 161

Powers of Trustee 161

Advice from the Court 162

Investment of Trusts Funds 162

Infants’ Maintenance 163

Remuneration of Trustees and Trustee Companies 163-164

Removal of Trustee 164

Trustee Companies 164

Conclusion of Trust 164-165

ULTRA VIRES 191

Uncertificated Insolvent 106

Unlimited Company 21

USUFRUCT 191

VENUE 192

VERDICT 192

VESTED 192

Voluntary Sequestration 93

Warden’s Court 52

WARRANT 192

WARRANTY 192

Widow’s Share on Intestacy 55

Widows’ and Young Children’s Maintenance Act 57

Wife, when Husband’s Agent 2

WILLS (169-174).—

What may be given by 169

Requisites of Valid Will and Codicil 170

Attestation Clause 170

Form of Will 170

Witnesses 171

Corrections 171

Interlineations 171

Erasures 171

Gifts to Witnesses Bad 172

Revival of Will 182

Revocation 172

Construction 172

Grounds for Upsetting 173

Mental Unsoundness 174

Undue Influence 174

Without Prejudice 192

Contents

Agent and Principal

Auctioneers

Bills of Exchange

Companies

Contracts and Agreements

Courts

Distribution of Estates of Intestates

Divorce

Dogs

Domestic Servants

Executors

Fire Insurance

Firms’ Registration

Hotelkeepers and Travellers

Husband and Wife

Imprisonment of Fraudulent Debtors

Insolvency

Joint Tenancy and Tenancy-In-Common

Juries

Landlord and Tenant

Libel and Slander

Life Insurance

Mortgage of Lands

Partnership

Pawnbrokers and Pawning

Probate and Administration

Promissory Notes

Trusts and Trustees

Statutes of Limitations

Copyright

Wills

Glossary of Legal Terms Commonly Met With

LAW FOR LAYMEN.

AGENT AND PRINCIPAL.

________

Where one person authorises another to represent him, or act on his behalf, and undertakes to be answerable for what that other does within the scope of the authority conferred on him, and such other person undertakes to accept the authority, and obey all lawful instructions which the first person gives him with regard to it, the first-mentioned person is called a principal, the second an agent, and the relation of agency is created between them.

Where the