October 6, 1936 New Zealand Law Journal. 261

“ It is the glory of English Law, that its roots are sunk deep into the soil of national history ; that it is the slow product of the age-long growth of its national life.”

--EDWARD JENKS, A Short History of English Law.

Vol. XII. Tuesday, October 6, 1936. No. 18

The Need for New Zealand Legal

SOME time ago, we made a pica in these pages for the writing of the contemporary history of the Law

in this country. We endeavoured to show how seri- ously handicapped the historian finds himself when confined to official and newspaper records for his information on past events. The interplay behind the scenes, the private conversation from which important events sometimes spring, and even the personal motive that is not aired in public-these are closed to the seeker after a connected and cohesive historical record.

It is, of course, too late now to repair the omissions from legal history in the contemporary writings of those who have gone before us. But our historical sense should be quickened by the approach of the centennial of New Zealand, and we should be bestirring ourselves to the securing of the compilation of a complete historical record of the birth and growth of our legal institutions, of the contribution made by members of the profession in the building-up of our national life, and of the part they played in our national story of the first hundred years.

We pride ourselves on our professional traditions. But we have few such traditions of our own ; since the traditions we venerate are for the most part imported from the British Isles. The vagueness of such locally- made traditions as we possess is no doubt due to the moagre nature of literature relating to the history of Law in New Zealand.

What we need chiefly at the present time is a better mental environment, in which, in Stevenson’s phrase, we may “ Keep open our communications with the extreme rear and first beginnings of the march.” Without the recording of our history, we shall never have the groundwork upon which to build our permanent traditions ; and, without such traditions, corporate and individual professional consciousness will continue to remain undeveloped. As Mr. Ernest Raymond says in another connection regarding history-and his words are applicable to ourselves and our present lack of historical literature relating to the Law in New Zealand, “ If we neglect it, we shall fail at several points to come alive. And it is a terrible thing to be partially dead.”

We learn that the Government proposes to mark the Centennial of New Zealand by the compilation of the century’s history and biography, and such a project has our cordial endorsement and support. We think, how. ever, that the legal profession as a whole should interest itself in ensuring that the history of legal institutions

and of the profession of the law itself is not overlooked in this proposed historical survey.

The development of legal institutions is one of the most important features in the growth of any nation. In fact, without the carefully compiled record of the history of Law in a country, its general history cannot be properly understood. Consequently, from the wider national aspect, any historical survey of New Zealand’s first hundred years would be seriously unbalanced if it omitted a carefully-compiled history of the Law during that period. This should not be treated from either the political or the sociological viewpoint : those aspects will, no doubt, receive adequate treatment elsewhere in the general survey. It should be written in the detached manner of the historian and the lawyer.

A history of the Law in New Zealand, such as we have indicated, would be of permanent national value. Since, in the phrase of Dionysius, “ history is philosophy teaching by examples,” such an historical survey would not only be of interest to the living, but it would prove of immense practical importance to those who will come after us to continue the task of national development. For, as Polybius has said, “ All men have two ways of improvement, one arising from their own experience, one from the experience of others.”

Prejudicing the Jury : Contempt of Court.

A few weeks ago we commented at some length on the newspaper publicity given to preliminary

hearings of criminal charges : see p. 213, ante ; and we suggested an amendment of the law to ensure that news- papers should not be permitted to influence, however consciously or unconsciously, the unprejudiced mind which a juryman should bring to his task in the administration of justice.

Recently, in England, very short shrift was given to newspapers which offended in this manner in relation to the charges laid against McMahon for being in possession of a firearm with intent to endanger life, and with two offences against the Treason Act, 1842. In Rex v. ” Evening News ” (Editor, Printers, and Publishers), ex parte The Director of Public Prosecutions, it was not disputed that the article complained of was a contempt of Court in the sense that it was bound to influence the minds of those who read it against the man who was accused of a crime before he could be brought to trial. The editor was fined g500, as were also the printers and publishers. Similar fines were imposed for the same reasons against the editor and the printers and publishers of the Daily Express.

A film is no more immune from the rules which forbid contempt of Court than is a newspaper. In Rex v. Hutchison and Others, ex parte McMahon, [1936] 2 All E.R. 1514, the Gaumont British Distributors, Ltd., were called upon to show cause why they should not be attached for contempt of Court by reason of their having distributed a film showing the applicant’s arrest, to which film a caption, consisting of the words, “ Attempt on the King’s Life ” had been affixed, the showing of such film being calculated to prejudice the trial of the applicant. Similar charges were made against the managers of certain picture theatres in respect of the exhibition of the offending film. All

New Zealand Law Journal. October 6, 1936

defendants apologised, and withdrew the films. The Court accepted the apologies and ordered the exhibitors to pay the costs of the application against them, and fined the distributors of the films and posters (which also contained the caption), with costs.

Summary of Recent Judgments. SUPREME COURT.

Dunedin. 1936.

I

BAILEY v. TAYLOR. July 1 ; Aug. 27. Kennedy, J.

Aircraft-Negligence-Accident in Landing-Maintenance of Flying Speed-Duty of Air-pilot-Objective Test.

An aeroplane crashed as the result of a stall caused by loss of flying speed when the machine was approaching a landing and a passenger received injuries from which he d&d. Engine failure was not a factor in the accident.

In such circumstances the question of weight does not enter into the matter as to whether the pilot was negligent, as he was endeavouring to land, and to reduce and glide downwards to a landing, maintaining air speed, is not, 8impZiciter a negligent act, nor is it negligence merely to undershoot a landing-place. The matter is one of judgment. and skill, and it is not neces- sarily negligence not to possess the requisite skill always accu- rately to judge the height when coming in.

It is not a test of diligence that the pilot may have been desirous of using all care ; the test is whether he in fact exercised the care and attention which were customary and proper. On this objective test, the defendant pilot failed at a critical stage to take the customary and proper precaution of main- taining air speed, and was guilty of negligence.

Biyth v. Birmingham Waterworks Co,, (1856) 11 Exch. 781, 156 E.R, 1047, and Lochgelly Iron and Coal Co., Ltd. v. M’Mullen, [1934] A.C. 1, applied.

Counsel : F. W. Ongley and Grater, for the plaintiff ; Hanlon, K.C., with him Warrington, for the defendant.

Solicitors : Ongley and Grater, Oamlru, for the plaintiff ; Simpson and Warrington, Dunedin, for the defendant.

Case Annotation : Blyth v. Birmingham Waterworks Co., E. & E. Digest, Vol. 36, p. 6, para. 1 ; Lochgelly Iron and Coal Co., Ltd. v. M’MuZZen, E. & E. Digest, Supplement No. 11, title Master and Servant, para. 4071~.

SUPREME COTJRT. Dunedin.

1936.

I

QUARTERMAIN v. PARGELL. August 26, 28.

Kennedy, J.

Magistrates’ Court-Appeal-Seeurity for Appeal not giVen within prescribed Time-Security not Waived-Effeet- Magistrates’ Courts Act, 1928, ss. 164, 169-Magistrates’ Courts Rules, R. 46.

As the rights of an unsuccessful party in the Magistrates’ Court to appeal depend upon compliance with the conditions prescribed by the statute, the Court may not dispense with the statutory requirements as to time in which to comply with the conditions of appeal.

The power of enlarging time given by s. 167 of the Magistrates’ Courts Act, 1928. relates only to time mentioned in that section.

Dowdeswell v. Francis, (1874) 30 L.T. 609 ; Ly Bow v. Magnus, (1897) 15 N.Z.L.R. 705 ; McKenzie v. Coles, (1917) 26 N.Z.L.R. 1090 ; Barraud and Abraham v. Fitzherbert, (1915) 34 N.Z.L.R. 1098, applied.

Counsel : Parcell, to oppose motion for leave to appeal in forma pauperis.

Case Annotation : For DowdesweZZ vu. Francis, see E. & E. Digest, Vol. 13, p. 537, para. 895.

NOTE :-For the Magistrates Courts A& 1928, SOG THE REPRINT OF THE PUBLIC ACTS OF NEW ZF.ALAND, 1908.1931, Vol. 2, title Courts, p. 98.

I :

SUPREME COURT. \

CONSOLIDATED GOLD FIELDS OF NEW ZEALAND, LIMITED v.

MORGAN.

Mines, Minerals, and Quarries-Residence-site License-Site in State Forest land-Whether License may be granted over such land-Mining on Crown lands-Mining Act, 1926, ss. 22, 144-Mining Amendment Act, 1927, s. 7.

Where a residence site is required to house miners the Warden has jurisdiction to grant a residence-site license, even over lands affected by the Forests Act, 1921-22.

Webb v. Johnston, (1914) 33 N.Z.L.R. 987; Rimu No. 1 Dredg- ing Co., Ltd. v. Wilson, [I9181 N.Z.L.R. 921 ; Blackwater Mines, Ltd. v. Foster, [1935] N.Z.L.R. 282, referred to.

Counsel : defendant.

Morgan, for the plaintiff; A. A. Wilson, for the

Solicitors : L. E. Morgan, Recfton, for the plaintiff; A. A. Wilson, Westport, for the defendant.

NOTE :-For the Mining Act, 1926, see THE REPRINT OF THE PUBLIC ACTS OF NEW ZEALAND, 1908-1931, Vol. 5, title Mines, Minerals, a?& Quarries, p. 943 ; the Mining Amendment Act, 1927, ibid., p. 1167 ; the Forests Act, 1927, ibid., Vol. 3, title Forests, p. 423.

SUPREME COURT. Dunedin.

1936. July 14, 15, 16, L7 ;

August, 18. Kennedy, J.

BEALE v. HIDE AND ANOTHER.

Vendor and Purchaser-Right of Purchase-Distinction from Option to Purchase-Analogous as to Applicability of Principle regarding Effect of Delay.

B., who claimed possession of a racehorse and damages sustained through its non-delivery, had leased the horse from the defendant, H., from December 7, 1934, to August 1, 1935. The terms of the lease were expressed in a memorandum, which stated, inter alia, “ Lessee has right of purchase on or before August 1, 1935.”

On August 1, B. caused a telegram to be sent to H. in the following words :

” Exercised right of purchase Queen of Song paid cheque.” “ Dunedin Jockey Club consign mare F. Shaw Wingatui.”

On the same day B. also caused a letter to be sent by the Secretary of the club to H. in which it w&8 stated that B. had handed the writer a cheque for the purchase-money, f160, with notice of change of ownership for his signature.

The telegram and letter were received by H. in the late afternoon of August 2. H. claimed that the conditions of sale had not been complied with and returned the cheque which did not include exchange. He subsequently sold the mare which proved valuable.

On a claim against H. for specific performance of a contract to sell the mare, and. alternatively, for damages, being the value of the mare less the purchase price, and judgment for the stake-moneys or profits lost through non-completion of the contract ; and, as against the new owner, the second defendant, for possession of the mare, or sl,OOO if possession could not. be obtained, and judgment for lost profits.

Stephens and D. A. Solomon, for the plaintiff; C. S. Thomas, for defendant, Hide ; Donnelly, for defendant, Hogan.

Held, 1. That the right of purchase gave a right to delivery of the mare by payment of the price-which was a condition concurrent with the obligation to deliver-on or before August 1, whether prior notice were given before that day or not ; and it was not an option to purchase giving a right on or before August 1 to enter into a contract for performance after that date.

Octabx 6, 1936 New Zealand Law Journal. 263 ---

2. That an option to purchase and a right of purchase give no right to the vendor to insist upon purchase, and the principle applicable in considering the effect of delay in the exercise of an option to purchase applied to the said right to purchase.

3. That as B. had not availed herself of the right to purchase within the time limitod, she acquired no right against either defendant.

Solicitors : Solomon, Gascoigne, Solomon, and Sinclair, Dunedin, for the plaintiff ; C. S. Thomas, Christchurch, for the defendant, Hide ; Raymond, Stringer, Hamilton, and Donnelly, Christchurch, for the defendant, Hogan.

SUPREME COURT. Hamilton. HUGHES v. NORTHERN COAGMINE

1936. WORKERS’ INDUSTRIAL UNION OF June 11 ; Aug. 3.

J WORKERS.

Fair, J.

Industrial Union-Union Inducing Employer to break Contract of Employment-Resort to Illegal Means-Not solely in Interests of Union or its Members-Intent to injure Plaintiff-Damages.

H. was employed by the W. Collieries, Ltd., in its mine prior to September 16, 1935, on which date he sought employment by the G. A. Collieries, Ltd., and was given employment ir its McD. mine as a trucker. He commenced work on September 18, but on the following morning the miners at, the McD. mine held a meeting prior to the hour for commencing work, and, immedi- ately thereafter, intimated that, if H. were continued in employ- ment they would not go to their work in the mine. H. was paid a day’s wages by the company and was dismissed.

The preference clause in the industrial agreement made between the defendant union and the G. A. Collieries, Ltd., provided :

” 28. (a) If any employer shall hereafter engage any worker who shall not be a member of the union, and who shall not become a member thereof within seven days after his engage- ment and remain such member, the employer shall dismiss such worker from his service if requested to do so by the. union, provided there is then a member of the union equally qualified to perform the particular work required to be done and ready and willing to undertake the same.

“ (b) This clause shall not apply to officials of the com- pany, including deputies, underviewers, pumpmen, engine- drivers, fan attendants, firemen, banksmen, and railway hands.”

Clause 29 of the said agreement was as follows :-

“ It, is agreed (a) that the mansgement of every mine shall have the right to shorten hands when necessarv to meet trade conditions ; (b) that when it is necessary to shorten hands the management shall have the right to select the men to be retained in consideration of their suitability for the work to be done ; (c) that’ in the engagement of men, the manage- ment will give preference to ex-employees of the mine, if, in his opinion, they are suitable for the work required to be done ; (d) if the union alleges that a manager in exercise of these rights has been guilty of victimization or has com- mitted an injustice, the coal-owners will be prepared to investigate it in conjunction with the miners’ organization. If no agreement is reached, an independent chairman to be mutually agreed upon shall be appointed and his decision shall be final and binding upon the parties.”

Strang, for the plaintiff ; P. J. O’Regan, for the defendart.

Held, 1. That the preference clause, on which the defendant relied, required the existence of two conditions before it entitled the union to demand a miner’s dismissal : (a) that the worker was not a member of the union when engaged, and (6) that he had not become a member within seven days of his employ- ment.

2. That, as plaintiff had been dismissed on the second day of his employment, and consequently he had not had the seven days’ opportunity for becoming a member of the union, the second of the conditions required by the preference clause had not come into existence.

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3. That the plaintiff was entitled to succeed on the ground that his dismissal was induced by the threat of a strike, which was an illegal means to enforce a demand involving a breach of his existing rights.

Quinn v. Leathem, [1901] A.C. 495, and Read v. Friendly Society of Operative Stonemasons of England, Ireland, and Wales, [1902] 2 K.B. 732, applied and followed.

Chaplin v. Young, (1911) 31 N.Z.L.R. 214; Blanche v. McGinley, (1912) 31 N.Z.L.R. 807 ; and Miller v. Collet, (1913) 32 N.Z.L.R. 994, applied.

4. That the plaintiff was also entitled to succeed on the ground that, as the combination of the union and its members was not solely to protect their interests but was in fact with intent to injure the plaintiff, such action was illegal and actionable as it resulted in injury to him.

The plaintiff was accordingly entitled to damages. Semble. That, if without any threat of a strike the union

and its, members had combined solely to protect their own interests and had sought to enforce plaintiff’s dismissal on the ground that a continuance of his employment was a breach of the industrial agreement made with the defendant Company, the procuring of his dismissal might not have been unlawful.

Ware and De Freville, Ltd. v. Motor Trade Association, [1921] 3 K.B. 40, and Sorrel1 v. Smith, [I9251 A.C. 700, followed.

Solicitors : Strang and Taylor, Hamilton, for the plaintiff; P. J. O’Regan and Son, Wellington, for the defendant.

Case Annotation : For Quinn w. heathem, see E. & E. Digest, Vol. 14, p. 112, para. 814 ; Read v. Friendly Society of Operative Stonemasons of England, Ireland, and Wales, ibid., Vol. 34, p. 189- 190, para. 1656 ; Chaplin v. Young, ibid., Vol. 37, p. 549, para. 110 ; Ware and De Freville, Ltd. v. Motor Trade Association, ibid., Vol. 32, p. 61, para. 885 ; Sovrell a. Smith, ibid., Vol. 42, p. 985, para. 156.

SUPREME COURT. Wellington.

1936.

1

B. v. PUBLIC TRUSTEE. Aug. 21, 27.

Smith, J.

Married Woman-Restraint on Anticipation-Application to remove Restraint-Exercise of Court’s Power-Property Law Act, 1908, ss. 24, 112.

The power to remove the restraint on anticipation given by s. 24 of the Property Law Act, 1908, should be exercised with great caution and only when a strong case is made out.

In re Little, Harrison v. Harrison, (1889) 40 Ch.D. 418, referred to.

Plaintiff applied under ss. 42 and 112 of the Property Law Act, 1908, to remove the restraint on anticipation and aliena- tion of income in respect of annual payments arising from moneys held in trust under a will. She proposed using the annual payments to reduce the amount of a loan made to her by her daughter.

Baldwin, for the plaintiff; Broad, for the defendant.

Held, 1. That, assuming s. 24 of the Property Law Act, 1908, applied, it had not been shown that it was for plaintiff’s benefit, to give up her right to her income, and, as the benefit would not enure to her personally but to other persons, the Court would not exercise its power to remove the restraint.

2. That,, assuming s. 112 of the Property Law Act, 1908, might, be invoked by plaintiff to remove the restraint, the same reasons were sufficient to justify the refusal of an application under that section.

Solicitors : P. E. Baldwin, Palmerston North, for the plaintiff ; Public Trust Office Solicitor, Wellington, for the defendant,.

Case Annotation : For In re Little, Harrisonv. Harrison, 888 E. & E. Digest, Vol. 27, p. 125, para. 1013.

NOTE :-For the Property Law Act, 1908, see THE REPRINT OF THE PUBLIC ACTS OF NEW ZEALAND, 1908-1931, Vol. 7, title Real Property and Chattels Real, p. 1077.

264 New Zealand Law Journal. October 6, 1936

Maori Hearsay Evidence. Traditional History.

By R. C. SIM, Es-Judge of the Native Land Court.

As the Maori had no written language his memory supplied the place of history books. In the Native Land Court, therefore, the stories told by witnesses of persons and events of long ago are not only admissible but form the basis on which the ownership of Native lands is determined. In English Courts such evidence would be regarded as hearsay of the weakest description. It would almost seem like taking the testimony of one of Bill Adams’s descendants as to how the Battle of Waterloo was fought and won.

The general rule as applied by the Court is quite clear. No outsider can spea,k with authority on the history of a tribe ; he may gather information at tribal meetings or discussions or through inter-marriages, but this is treated as largely hearsay, and, even if ad- mitted, carries no great weight. The evidence of a member of the tribe is in a different category. The latter claims, and his claim is recognized as valid, that he has been taught the history by his elders, who them- selves have learned it from their elders, and so on back to the source, Such evidence is regarded as authentic, and, to distinguish it from pure hearsay, is referred to as traditional evidence.

Most of the evidence given to the Court is allegedly traditional, but the Maori is a past master in the art of faking testimony to support a spurious claim. He could outrival the Tichborne claimant in weaving a colourable case out of scanty materials. As a rule he does not falsify events ; he simply transfers them to his own people, and asserts that all the doings and happenings relate to his own ancestors and not to those of his opponents.

The Court is thus often unable to discriminate between rival claimants, each of whom professes to give the traditional history, and whose stories agree in the main, except that each ascribes the actions and events to his own party. Each of the stories on its face appears to be authentic. Ultimately recourse is had to the test of possession, or, as the Maoris term it, occupation. The presumption is strongly in favour of those then actually occupying, and the evidence against them must be overwhelming to establish that they are not there as of right. The real difficulty, however, arises over lands once occupied and since abandoned, or never occupied except to gather food supplies. In the case of such lands there are no actual occupiers, and in con- sequence a spurious claim has a longer run and a better chance. It usually fails in the end because the claimant is ignorant of some material facts in the ancient history, and the superior knowledge of his opponents on these matters counts very heavily against him.

A case which curiously illustrates these principles occurred in connection with a block of land in the Ure- wera District. This block had once been occupied but had long since been deserted. There were two claimants, one, an influential chief of the Urewera t,ribe, the other, a less distinguished rangatira. At an inquiry before a special Commission the decision went in favour of the chief. Later the defeated party was enabled to apply to the Chief Judge for leave to have the matter reviewed by the Native Land Court. The grounds of his application were that his ancestors and elders

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had lived on the land from ancient times, and that no one else had occupied it down to the present day. As a proof he asserted that an old fortified pa on the land had been built and occupied by one of his ancestors ; that the pa was an earthwork pa, and, to his belief, traces of it still remained. His opponent denied that there was any such pa ; he averred that his elders had given him the history of the land, and never mentioned the existence of any pa. The Chief Judge interrogated

the applicant, the gist of whose replies was that his mother, a very old lady, had told him of the pa, that neither she nor he himself had ever seen it, but that they confidently relied on the tradition handed down to them. The case then resolved itself into a kind of wager. The Chief Judge asked the applicant whether he agreed to let the decision rest upon the existence or non-existence of the pa ; if he produced the pa, he won, if he did not, he lost. He agreed without hesita- tion ; the chief also agreed, relying, no doubt, on the fact that no one living had ever seen the pa, and that none of his party had ever heard of it. So, upon those terms the case was referred to the Native Land Court. Upon appearance before that Court the applicant had to confess failure. He had made an intensive search, but the whole district had become so thickly covered with manuka and second growth that he could not locate the site or find any sign of the pa. The award, therefore, again went to the chief and his party.

The applicant’s faith in the truth of the traditional history was, however, proof against adversity. He appealed to the Appellate Court. Some months inter- vened, and then at that Court, sitting at Taneatua, our battler, now the appellant, duly appeared and tri- umphantly announced that he had found the pa. An- other search having failed, he had set fire to the bush and scrub and burnt it off, and in the clearing thus made the site of the pa had been discovered. He invited the Judges to come with him to inspect the pa, and satisfy themselves that his statement was correct. A thirty- mile ride on horse-back, through bush-clad country, along stony river-beds, up ravines, and over precipitous ridges did not appeal to the Judges, so without hesita- tion they conferred the honour upon the Interpreter. Three days later, the Interpreter rode back into the town- ship, stiff, weary, and sore ; he reported that there were unmistakeable traces of an old pa : portions of the em- bankments were still standing, and the trenches were plainly evident. He verified his report with photographs of the site and its neighbourhood, which showed clearly that the place was just such as the old Maoris would have chosen for the location of a fortified pa. The Appellate Court, by the terms of the agreement, thereupon reversed the decision of the lower Court, and awarded the land to the party of our battling friend.

This case shows the genuineness of traditional history, and the strength of Maori belief in it. This Maori staked all the rights of himself and his party on his belief in the existence of a pa, of which he knew only by hearsay, and which no one had seen for probably three generations.

A Definition.-“ My Lord,” cried a witness whom Curran was cross-examining, “ I cannot answer Mr. Curran, he is putting me in such a doldrum.” “ A ‘ d0ldrum ! ’ ‘7 exclaimed the Judge. “ What is a doldrum, Mr. Curran Z ” “ My Lord,” replied Curran, “ it is a common complaint with persons like this witness. It is a confusion of the head, arising from corruption of the heart.”

October 6, 1936 New Zealand Law Journal. 265

Substitutionary Gifts to Grand- children.

A Point of Draftsmanship.

By C. STANLEY BROWN, LL.B.

It is a very common practice of testators, after making gifts to their children, to provide in one form of words or another that in the event of the death of any child before the death of the testator the children of such child shall take the share which their parent would have taken if he or she had survived. There is, of course, no fixed or universal form of words for such a provision ; but it is very commonly expressed in some such language as this :

I declare that if any child of mine shall die in my lifetime leaving a child or children living at my death then such last-mentioned child or children shall take equally among them the share which his her or their parent would have taken if such parent had survived me.

Every now and then a question arises in the Courts as to whether under such a provision the children of a child who died before the date of the will are to be admitted as beneficiaries per stirpes, or whether t,he substitutionary benefit is to be treated as limited by the words of futurity in the will (“ if any child . . . shall die “) to grandchildren whose parent may have died after the date of the will. In all such cases, as Williams, J., remarked in In re Nicolson, (1913) 33 N.Z.L.R. 203, 207,

“ the problem is to discover from the language of the will and the circumstances of the particular case what was the real intention of the testator.”

These cases are frequently of great difficulty, and give rise to much diversity of judicial opinion. Thus in In re Gorringe, Gorringe v. Mahlstedt, the Court of Appeal reversed the Chancery Division, and the House of Lords reversed the Court of Appeal, [1906] 1 Ch. 319 ; [1906] 2 Ch. 341 ; [1907] A.C. 225. Presumably, if there had been a higher Court than the House of Lords, that august body might itself have been reversed.

There are two lines of cases on the subject, one being headed by Loring v. Thomas, (1861) 1 Dr. and Sm. 497, 62 E.R. 397 ; and the other by Christopherson v. Naylor, (1816) 1 Mer. 320, 35 E.R. 693. In Loring v. Thomas, a gift to the children of D. was followed by these words :

“In case any child or children of the said D shall die in my lifetime leaving any children who shall be living at my death and who shall live to attain the age of 21 years then and in such case the children of each such child so dying shall represent and stand in the place of their deceased parent . . . etc.”

On the construction of the will as a whole the words “ shall die in my lifetime ” were held to extend to the case of a child who was dead at the date of the will. As Lord Lindley expressed it in Barraclough v. Cooper, (1908) 2 Ch. 121, n. :

“ The words ‘ shall die ’ are an old phrase that has been treated over and over again as equivalent to ‘shall be dead’ . . . There is no magic in the words ; you must look and see what is meant.”

With respect, the humble conveyancer may be permitted to remark that, if there is no magic in the words, then there is no certainty either.

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On the other hand, in cases of the Christopherson v. Naylor type there has been found no context or circum- stances to justify this extended meaning ; hence the Courts have had to exclude grandchildren whose parent was dead at the date of the will. A recent authoritative case of this type is Re Walker, Walker v. Walker, [1930] 1 Ch. 469, L.T. 472. The decision of the Court Of Appeal may be summarized in the following sen- tences from the judgment of Lawrence, L.J. :

“It is well settled by authority binding on us that an expression such as ‘ shall die ’ must be given its primary meaning of ‘ shall hereafter die,’ unless there are words in the context by which a different meaning must be implied. It seems to me thot there are no such words in the present case.”

Ct is worthy of note that in deciding against the claim 3f the granddaughter in the Divisional Court, Eve, J., did so with obvious regret. After remarking that a slight variation in the form of the bequest would have enabled the Court to arrive at the opposite result, he proceeds :

“Unfortunately for this child who has just attained her majority, there is no such bequest, nor indeed is there any- thing in this will to impose on the word the meaning for which Mr. Johnston has contended. I regret that it should be so, because in all probability if the testator’s attention had been directed to the matter, he might have altered the expression he has used.”

Similarly in In re Syms, Guardian Trust, etc., v. Spading, [1932] N.Z.L.R. 332, Smith, J., rejected the claim of grandchildren who, as he says, at all material times visited the testatrix frequently and were on terms of friendship with her, holding himself bound to give to the words “ shall die ” their primary meaning of “ shall hereafter die,” as he said at p. 334,

“ Even though I might speculate that the testatrix would have used other words if her attention had been called to the legal effect of t,he words she was asing.”

Loring v. Thomas has been followed in New Zealand in In re Howe, Newsome v. Brechin, (1913) 32 N.Z.L.R. 1281 (C.A.) ; Craig v. Craig, [I9191 N.Z.L.R. 106; In re Tarbutt, Public Trustee v. Tarbutt, [1922] N.Z.L.R. 316 ; In re Leslie, Public Trustee v. Leslie, [1933] N.Z.L.R. 199. On the other hand, our Courts have taken a similar line to that taken by the English Court in Walker’s case in In re Nicholson (supra), In re. Rachel Collins, (1911) 30 N.Z.L.R. 830 (CA.) ; In re #yms (supra) ; N. 2. Insurance Co. v. Acton, [1924] N.Z.L.R. 193 ; N. Z. Insurance Co., Ltd. V. Hoole, [1935] G.L.R. 717.

Broadly speaking, one may say that to bring in Loring v. Thomas it is necessary to show that such a clause, though in form substitutionary, constitutes in reality an addition to the class of persons taking under the original gift, by reference to the issue of what may be called hypothetical persons (cf. per Sim, A.C.J., in In re Tarbutt, supra). Where there is a substitutionary clause of the type here referred to, Loring v. Thomas opens the door to grandchildren whose parent was dead at the date of the will ; Re Walker emphasises that not- withstanding the open door, they still cannot be admitted without affirmative indication of the testator’s intention to that effect.

It is not intended here to consider what may, and what may not, be considered a sufficient indication of such intention ; the point is that the cases show (as indeed their very number indicates) that the distinction may be both fine and difficult. For example : In Loring V. 1’lLomas itself, Kindersley, V.-C., based his

266 New Zealand Law Journal. October 6, 1936

judgment largely on the fact that the gift was to grand- children of D. “ who shall live to attain the age of twenty-one years.” The testator, it was held, could not have meant to exclude grandchildren who had already attained twenty-one ; hence, as the words “ shall attain ” did not apply to the future only, so the words “ shall die ” could not be limited to the future. Yet in In re Nicholson (supra) the presence of a similar provision was held by Williams, J., to lead to exactly the opposite result, the explanation being that in the one case there apparently were, and in the other case there were not, grandchildren who had attained their majority at the date of the will.

Now what is the moral of all this from the point of view of the draftsman ? Surely it is this : That in the use of language such as “ if any child shall die . . . ” there lurks a dangerous ambiguity. The question whether a testator does or does not desire his fatherless grandchildren to represent their deceased father for the purpose of sharing in the testator’s estate is a plain and simple question, and its determination should not be left as a matter of doubtful inference from ambiguous language in the will. It is suggested that where a child of a testator has died leaving issue, a solicitor having instructions for the will should ascertain explicitly what the client’s wishes may be with regard to the question here raised. If it is not desired that such grandchildren should be included in any substi- tutionary provisions of the will, it is suggested that the clause should be framed to read expressly :

If any child of mine shall die hereafter leaving issue living at my death . . .

But if such grandchildren are to be included, it is suggested that some such words as the following should be used :

If any child of mine shall at t,he dat,e of my death be dead but shall have left issue then living, whether such child may have died before or after the date of this my will, then such issue shall take . .

Sometimes, however, wills must be drawn hurriedly, and without proper opportunity for the solicitor to acquaint himself with the family history of the testator. Moreover, a testator when he signs his will may not always know the state of his own family, and still less that of others. A child may have died recently and the testator may not yet have heard ; if knowledge or lack of knowledge be the crucial point, what evidence will be available to settle it when the will falls to be interpreted, perhaps many years later ? Again, if a death took place between the dates of preparation and signature of the will, would a layman be likely to realize the bearing of that fact on the document already drawn ? The adoption of the latter type of clause above suggested will prevent a possible accidental injustice arising in such cases, as well as in those of sheer mistake or forgetfulness of the testator. Moreover it is inherently the more natural and reasonable-unless of course where independent provision has been made for the children of a deceased child. To adapt to the duties of a solicitor in preparing wills the language which Fletcher Moulton, L.J., in In re Gorringe used of the attitude of the Courts in interpreting them,

“This method of distribution to children, or, where children have died, to grandchildren in their parent’s place, is so well known and is so equitable t,hat ” . . . the draftsman may well prefer to draw the bequest “ . . . in the sense that it does not ox&do grandchildren by r8ason of t.he accidental fact that the death of their parent was earlier than the date of the will, instead of later.”

Society of Notaries Public.

New Scale of Charges.

The Notaries Public practising in Wellington City have recently formed a Society of Notaries with a view to safe-guarding the interests of practitioners generally and of obtaining uniformity of practice, particularly with regard to charges.

For the time being the Society consists only of Not.aries practising in Wellington City, but it is proposed to invite Notaries practising in other parts of the Wellington Province to become members. The Society would also be pleased to co-operate with Notaries praotising in other parts of New Zealand.

The following scale of fees has been fixed by the Society :-

General : S e. d. I Verifying execution of Deed, one Declaration and

Certificate . . . . . . . . . . . . 1 11 6 When more than one Declaration but only one

Certificate, for each additional Declaration Declaration under 3 k 4 William, Chap. 62-f;;

10 6

use in England, and Certificate . . . . . . 111 6 Each additional declarant , .

(Note: The foregoing fees of ki/11/6’may be 10 6

reduced to El/l/- to solicitors and other persons or bodies approved by the Council.)

Any certificate . . . . . . . . Oath to Affidavit, or Declaration of one deponent

1 1 0

or declarant . . . . . . Each additional deponent or declarant : : : :

10 6 5 0

Each exhibit . . . . . . . . . . 2 6 Attestation of execution of Pow8r of Attorney for

sale of stock and attending execution one Grantee of Power-under $100 . . . . . . 10 6

do. -beyond UOO . For each additional attendance, where more than

1 1 0

one Grantee If for sale of foreign Sticks, and C&ificatb

10 6

required in foreign language, for such Certificate -according to arrangements.

Attestation of any other document where no Certificate required (e.g., Land Transfer Docu- ments for Australia) one signature . . . . IO 6

Each additional signature , , . . . . Attending Mayor or Consul of a State to obtain

5 0

verification of Notary’s signature . . . . 10 6 Consul’s f08 . . . . Interpreter’s fee . . . . 1:

. . . . as paid

Noting Bill of Exchange or Promissory Note : : as paid

7 6 If more than one mile from Notary’s office, for

each additional mile or fraction thereof Protesting Billof Exchange (in addition to Notingj-

3 6

Single Protest . . . . . . Duplicate . . . . . 1: 1:

1 1 0 10 6

Acts of Honour . . . . . . . . . 1 1 0 Copy of Bill or Cheque with Notarial Certificate. . 1 1 0 Declaration on application for refund of English

Income Tax, not less than . . . . . . 5 0 Ship’s Protests :

Noting Protest on arrival of ship . . Extended Protest : General charge td ‘include

1 1 0

everything (except stamp duty), from f4/4/- and upwards according to work involved.

!k&n8kZtiOn8 : Interpreter’s fee-as paid. Attestation to translation-according to length

and trouble. Copy documents translated per folio . . Note : Stamp Duty and other disbursements to

0 1 0

be additional in all cases. Special or additional work to be charged for in

the disoretion of the Notary.”

October 6, 1936 New Zealand Law Journal. 267

London Letter. --

BY AIR &IL. Temple, London,

My dear N.Z., September 1, 1936.

This is my holiday letter written in the middle of the Long Vacation, and-1 will let you into the secret- not from the place which appears at the head of this letter in the space reserved for the address of the sender, but from another place not a mile from the sea. You will not, therefore, expect a great deal of legal news from me on this occasion. There are, however, one or two items of strictly legal news, which I shall refer to presently ; and I can even mention a case which came before the Vacation Court of Criminal Appeal which I happened to have occasion to attend on the 13th of last month. Not that the case concerned any important principle of law, but it revealed just one novel incident. It appears that the prisoner, on being convicted, lost his temper, swore at the Judge and threw a policeman’s hat at him. There are, of course, many instances of various missiles being thrown at Judges, from brickbats to the famous egg that was thrown at Malins, V.C., but I know of no other instance of the use of a policeman’s hat for’ this purpose.

Lord Trevethin.-You will no doubt have read of the death on the 3rd of last month of Lord Trevethin, one time Lord Chief Justice of England ; but I am constrained to write something of him partly because he was in many ways a remarkable character and partly because of a personal interest by reason of the fact that he was the father of the present Mr. Just& Lawrence with whom I was in chambers for many years before his elevation to the Bench. Lord Trevethin died while fishing in the river either through having slipped or by reason of a seizure, and it is probable that death was caused by the shock of sudden immersion in the cold water, for, although his chauffeur was with him at the time and immediately went to his assistance, life was extinct on his being taken out. It seems remarkable that he should have been fishing at all at his age, but I understand that he did little more than instruct his chauffeur how a’nd where to cast his fly.

Lord Trevethin is probably better known to the more elderly in the legal profession as Mr. Justice A. T. Lawrence, as he was called to distinguish him from Mr. Justice P. 0. Lawrence. He was called to the Bar as Iong ago as 1869 by the MiddIe Temple and became a member of the Oxford Circuit. He soon acquired a considerable practice, and in 1880 was made Junior Counsel to the Admiralty. In 1885 he was made Recorder of Windsor, and in 1897 he took silk. After acting on more than one occasion as a Commissioner of Assize he was appointed to the Bench in 1904. He served with distinction as a Judge of the High Court until 1921, when, at the age of seventy-eight, he was appointed Lord Chief Justice of England, and became Lord Trevethin. His term of office as Lord Chief Justice was extremely short, as he resigned the following year, but he continued for several years to render useful services on various committees.

Although such a record of legal distinction will not soon be forgotten, Lord Trevethin will be remembered perhaps even longer for his many sporting activities. He was at one time a fine horseman and was a leading member of the Pegasus Club. He seldom missed the

-

annual Point-to-point races and until recent years frequently acted as judge or in some other official capacity. He was a keen golfer and was also fond of shooting ; but perhaps the sport which attracted him more than any other, especially during the last part of his life, was fishing. It is said that for the last twenty years of his life he lost no opportunity to indulge his paRsion for this sport, and so it was that fishing finally brought about his end. Such an end might, nevertheless, well be the envy of many of us.

The Circuit Towns Committee.-There has recently been issued the report of the Circuit Towns Committee, which was appointed to review the present distribution of Assize facilities and to report whether the County should be retained as the judicial unit, aay further towns should be added to those already visited or any towns at present visited should be omitted. The report makes a number of recommendations, of which perhaps the most, important is that the North Wales and South Wales Circuits should be amalgamated. It also suggests that some five or six towns should cease to be Anaize Towns, but that certain other busy centres should be visited by more than one Judge. A.nother important recommendation is that civil business should be taken on every circuit at every Assize town visited by a Judge. At present this is not so, and in some instances a good deal of inconvenience has been caused. The report will, I think, be generally welcomed, although certain claims have had to be rejected. One result, if the recommendations are carried into effect, will be that more Judges will be taken away from London. A year or two ago this might have been an objection, but in the present state of affairs it will be a distinct advantage. I understand that there were scarcely any arrears of work at the end of last term, at least in the King’s Bench Division, and, unless there is an unusual accumulation during the long vacation or a sudden increase next term, it is difficult t,o see how our King’s Bench ,Judges are going to be occupied towards the end of the year.

The Lord Chief Justice in South Africa.-Although members of the Bench and Ber frequently take the opportunity of the Long Vacation to visit other countries, they do not often travel so far afield as South Africa where the Lord Chief Justice is at present touring. I see that in a speech which he made in Johannesburg the other day he made some very pertinent remarks with respect to the Judicial C!om- mittee of the Privy Council, pointing out that that Committee constituted an Imperial Tribunal a,nd not an English Court, and that, therefore, appeals from the Dominions and Colonies should not bc considered as appeals to England but rather as appeals to the Crown to be heard by the pick of the judicial brains of the Empire. Lord Hewart reminds his listeners t’hat earlier this summer there were no fewer than four members of the Privy Council from other parts of the Empire who sat in Downing Street as members of the Judicial Com- mittee. Included in these was, of course, the Chief Justice of New Zealand, whom we were all delighted to welcome to London. My only regret is that rircum- stances prevented me from presenting myself to him and thus renewing the acquaintance that I made with him in New Zealand, when, I remember, he received me with the greatest kindness and cordiality. I very much hope that he enjoyed his visit.

Pours ever, H. A. P.

268 New Zealand Law Journal. October 6, 1936

New Zealand Conveyancing. By 8. 1. GOODALL, LL.M.

1. Letter of Request and Indemnity in respect of Shares addressed to a Trustee by a Number of Beneficiaries for whom the Shares are to be held.

2. Deed of Declaration of Trust in respect of Shares purchased by a Trustee with Indemnity by the Beneficiary.

1. LETTER OF REQUEST AND INDEMNITY IN RESPECT OFSHARESADDRESSEDTOATR~STEEBYANUMBER OF BENEFICIARIES FOR WHOM THE SHARES ARE TO BE HELD.

To : A.B. of &c. 1. WE the undersigned whose names addresses and

occupations are set out in the Schedule hereunder written DO HEREBY SEVERALLY REQUEST you to sub- scribe [or apply for allotment] in your own name on our behalf for [or of] the number of shares set opposite our respective names in the said Schedule such shares being of dil each in the capital of C.D. LIMITED a Com- pany about to be incorporated under the Companies Act 1933 as a private [public] Company with its rcgis- tcred office at

2. You will hold the said shares so subscribed for us respectively and will notify us of the distinctive numbers allotted to and identifying the respective holdings in the capital of the Company and will generally deal with dispose of and exercise the voting and other powers incidental to the same in such manner and to such effect as we shall severally from time to time direct.

3. WE will each of us at ah times and from time to time pay the several application and allotment moneys calls interest and other moneys due and to become due in relation to the respective holdings of shares subscribed on our behalf and will each of us indemnify you and your estate from and against the respective application and allotment moneys calls interest and other moneys claims costs expenses proceedings and actions what- soever in respect thereof.

4. OUR liability hereunder to you shall be several and shall extend to the said respective number of shares subscribed by you on account of each individual one of us and such liability shall bind each of us accordingly and our respective administrators or executors. As WITNESS our hands this day of 19 .

SCHEDULE.

NNIX% Address. Occupation. Signature. Numborof Shares.

1 ----

WITNESS to the above signatures : ACCEPTED: WITNESS &c.

-

2. DEED OF DECLARATION OF TRUST IN RESPECT OF SHARES PURCHASED BY A TRUSTEE WITH IN- DEMNITY BY THE BENEFICIARY.

THIS DEED made the day of 19 BETWEEN A.B. of $c. (hereinafter called “ the Trustee “) of the one part AND C.D. LIMITED a Company duly incorporated under the Companies Act 1933 and having its registered office at (hereinafter called “ the Beneficiary “) of the other part WHEREAS the Trustee has entered into and signed a certain agreement being an agreement for the purchase of certain shares in the capital of E.F. LIMITED a Com- pany duly incorporated as aforesaid and having its registered office at (hereinafter called “ the Company “) bearing date the day of 19 and made between G.H. of the one part as vendor and the Trustee of the other part as purchaser AND WHEREAS the parties hereto are desirous of declar- ing the terms of the above recited trust Now THIS DEED WITNESSETH as follows:-

1. THE Trustee DOTH HEREBY ACKNOWLEDGE that he has entered into and signed the said recited agree- ment to the extent of [two-thirds] of the total holding of the said shares that is to say fully paid shares of &l each comprised in and described by and agreed to be sold and purchased by the said recited agreement as trustee for the Beneficia,ry and to the extent of the remaining [one-third] thereof for the Trustee in his own right.

2. THE Trustee DOTH HEREBY DECLARE that hence- forth he will accordingly stand possessed of the said shares to the above-defined extent in trust for the Beneficiary and will on being so required by the Benefi- ciary assign and transfer the resultant [two-thirds] part thereof to the Beneficiary or as it shall direct and in the meantime will subject as hereinafter mentioned exercise as the Beneficiary may from time to time direct the voting-powers and statutory and other powers and remedies vested in him in relation to the same resultant [two-thirds] part thereof.

3. THE Beneficiary DOTH HEREBY COVENANT with the Trustee to indemnify the Trustee and his estate to the extent of [two-thirds] thereof from and against all proceedings costs charges claims expenses and liabilities whatsoever under or in respect of the said recited agreement and the holding of the said shares comprised in and described by and agreed to be sold and purchased by the said agreement.

4. IT IS HEREBY EXPRESSLY DECLARED that the Trustee before exercising any powers or pursuing any remedies vested in him in trust for the Beneficiary may require from the Beneficiary security for or payment of the appropriate contribution by the Beneficiary of the costs likely to be incurred in and about the proposed exercise or pursuance of such powers or remedies.

5. THE Beneficiary DOTH HEREBY ACKNOWLEDGE &ND AGREE that the Trustee may serve and be employed by the Company in any capacity whatsoever including that of director and may accept remuneration therefor tnd that all such remuneration shall belong to the Trustee in his own right and free from any claim by or on behalf of the Beneficiary.

6. THESE presents shall bind and enure to the benefit of the Trustee his executors or administrators and assigns and the Beneficiary and its successors and assigns. IN WITNESS WHEREOF &C. SIGNED &c. THE COMMON SEAL &C.

October 6, 1936 New Zealand Law Journal. 269

The Palmerston North Golf Tournament.

An Appreciation.

My Lord, I did visit the Olym& Games, Maid Modesty forefend I tell my deeds, But such a goodly show of fellowship, Such turn for speed, such thews, such strength of wrist, Such honied tongues for golden oratory, I trust I may bear witness to again.

s. s. M.

Some five years ago there originated in the fertile brains of the Palmerston North Bar the idea that in the absence of a legal conference it would be a good thing to have a legel golf tournament. Accordingly on Dominion Day, 1932, a number of practitioners fore- gathered to forget their worries in the pursuit of one or more golf bslls. So good was the report that these pioneers brought back, that year by year tho fixture has been growing in size and popularity until this year nearly eighty of the Devil’s Own forcgathcred.

This tournament is like no other golf tournament inasmuch as fellowship is the first csncntial, golf the second. To arrive on the links and hear an ex-field officer of His Majesty’s forces and a senior member of the Bar being greeted cheerfully by the Chairman of the Entertainment Committee in terms usually reserved for the 13th Bunker, helps to break down any feeling of restraint a newcomer may feel.

Golfers were there of all sorts-from the sylph-like creatures we imagine we still arc, to the bifurcated pear- shaped figures that our wives and families recognize as us-from the plus one golfers, who follow their drives monotonously down to the fairway, to those of us who have to carry a folding seat to rest on while our caddie searches vainly in the rough. The golf varied from the three (3) at the third to the thirteen (13) at the thirteenth, and the putts we missed were never more than two feet long. At this tournament there were no holes in one- although we have it on the highest authority (his own) that South Island’s only representative, The Mayor Apparent of Motueka (for whom we shall ever pray, as in duty bound), missed this feat by a foot . . . but took two putts !

In the whole tournament there was only one moment of strain. Two very well-known members of the Bar, partnered in the foursomes, had taken post in opposite bunkers and were solemnly batting their ball back and forth across the green when, at the sixth attempt, their caddie, an otherwise much-respected lady, laughed. The matter, we understand, was satisfactorily settled.

We have other memories of this tournament-of the ever-smiling and ever-efficient George McGregor who kept the tournament running without a hitch and apparently without effort ; of Bert Jacobs who, as Chairman of the Entertainment Committee, helped us to forget that he has been a leading practitioner for a quarter of a century, and with brilliant wit and cheerful countenance made certain that everybody should feel that a welcome would be waiting at Palmerston next year ; of the Bench’s sole representative who proved himself a doughty man in the rough and a good fellow withal ; of the courtesy of the Hokophitu (sic) Golf

Zlub who allowed us the full use of their links ; of the hospitality of the Manawatu Club which opened its loors to us ; of the geniality of our starter, Jock Jalloway, who has not yet told us that story he promised ; of Dave Perry’s failure with the tent. Of these things and many more, we trust we may bear witness to again.

The more unimportant results arc chronicled else- where.

-H. H. D.

Tactics in Court. By W. BLACKET, K.C.

A Love Story.-R. ‘11. Porter, t’ried at Maitland, New South Wales, Sessions in 1890, or thereabouts, was an interesting study in the art and practice of defending in criminal cases. One Porter, who had been married in \;ictoria, after living with his wife for some years deserted her and came over to New South Wales. He there assumed the name of “ Dare ” and ten years after the desertion was, aud had been for some time, steward of the Newcastle Club. He was much liked by the members, for he was everything that a club steward should be, and he also made many friends in the City ; but his wife happened to hear that he was at New- castle, and that’s how the row began. She went t,here to see him, and did her utmost to persuade him to go back and iive with her at her home in Victoria. In spite of all his faults she loved him still.

For many days she urged him to return, and then there were some strange happenings. He told her that he would get a fortnight’s holiday lcave from the club, and tha’t they two would spend that time in Sydney. He told her not to wear any clothing marked with her name or initials and to tell the people at the boardinghouse where she was staying that she was returning to Victoria. He obtained two days’ leave from the club : she got on the train as arranged by him at Newcastle, and he got on at Honeysuckle Point, the next station. In Sydney they stayed at a coffee palace, and on the evening after their arrival went out to Bondi, and, following a pre- cedent well established at Bondi sat on a tussock on t,he beach. He followed another local precedent inasmuch as he offered her some lollies. She took two or three and at once complained that they were nasty, and spat out all of them t,hat she could. She said they burned her mouth and gave her much pain elsewhere. For a couple of hours she lay there suffering grievously, but, assisted by her husband and a kindly stranger, managed to catch the last tram to the City, the husband explaining that she was suffering from a severe attack of toothache. Her lips at that time were swelled and she was evidently in great pain. Next day husband and wife returned to Newcastle, and she very soon after her arrival told Mrs. Harvey, keeper of the board- inghouse, all that had happened in connection with the trip to Sydney and the visit to Bondi, but still she urged her husband to return with her to Victoria.

For a month or so this state of affairs continued ; then she heard that he had been very friendly with a local dressmaker, a Miss Laxton, who had just gone away to Queensland. She accused him of “ carrying on ” wit,h this lady : he suddenly left Newcastle : she

270 New Zealand Law Journal. October 6, 1936 --

went to Sergeant Brennan of the local police force, told him all about the Bondi affair, and he urged her to prosecute for the crime disclosed. This she refused to do, but swore an information against her husband for wife desertion, and when h-e was brought back under t’he warrant for desertion offered to stop the proceedings if he would return with her. This he refused to do, and she then swore an information against him for causing her to take a poison with intent to murder.

At the trial at the Sessions she was a wonderful witness. I have never since seen any woman in the box so accurate, deliberate, and calmly self-possessed : only when she made allusion to her desire to get her husband to return to their home did her self-possession yield to her emotion. But, even so, her evidence was not quite convincing. Her story was too deliberately told to win the sympathy of her audience : her poise was too perfect. She was the prosecutrix rat’her than the wronged wife. And the facts before the jury made t-he case seem a gift to the defence.

As the law t,hen stood, the Crown could not get, in the statements to Mrs. Harvey and to Sergeant Brennan, and so it would appear that it was only after she heard about Miss Laxton, and after she had issued the warrant for wife desertion, that she first revealed the fa,cts as to the attempted poisoning : and moreover it was clear on her own statement that after the trip to Bondi she had during many days tried to induce him to live with her again. But “ Charley ” Readett for the defence thought he had a better “ get out ” than the plain facts afforded. He thought that aq the t,ale seemer? to have been “ learned and conned by rote ” it would be three times as unconvincing, if you see what I mean, if it were twice repeated so he made, her go all over the “ Bondi episode ” again in answer t)o his queshion, “ What did you t#ell Mrs. Harvey about this on the day you came back from Sydney ? ” and then again in ma.king her repeat what she had told Sergeant Brennan, but with each repetition the recital grew in strength and con- sistency. Then he referred slightingly to her love for her husband. The prosecutrix disappeared, and a weep- ing broken-hearted woman stood in her place. Her wonderful love for a worthless husband whom she had forgiven unto seventy times seven explained every inconsistency in the facts, and supplied the solution to every problem of her conduct. She proved t,hat there are no limits to the love of some women, even where the object of their love is one of the meanest of God’s creatures. The jury were only out for a little while, but Wilkinson, J., sent the prisoner out for fifteen years’ penal servitude. And within a month the wife was wearing boo& and going round Newcastle with a petition for his relea.se ! “ Love-passing the love of women ” : (2 Samuel 1.26), there never was any.

Making an Example of Him.-In a certain district in East Africa there is a Resident Magistrate. When he is away a doctor acts for him. Recently each agreed that he had broken the law by driving at night without a light. Both thought the law would be vindicated if each appeared in Court before the ot,her. The Magis- trate sat first and fined the doctor five pounds. When it was the doctor’s turn to administer the law, he fined the Magistrate twenty pounds. The Magistrate looked aghast, but the doctor justified his severity by empha- sizing that an example was needed, since the offence was obviously becoming a common one ; this was the second case that day.

Lawyers at Golf. Palmerston North Tournament.

-- The fifth annual gold tournament for members of

the legal profession concluded after three days’ play at Hokowhitu links on Dominion Day. The growing popularity of the tourney was shown by an increase of twenty in last year’s number of entrants. Many competitions were held, the players being fully occupied until late on the final afternoon, when the prizes were presented by Mrs. G. I. McGregor, wife of the secretary of the Palmerston North Law Society, under whose patronage the tourney is held.

The following trophies were won : Devil’s Own Cup : F. P. Fawcett (Feilding) ; runner-

-up, A. E. Lawry (Napier). Mortgagors’ Relief Stakes : S. K. SiddelIs (Pahiatua) ;

runner-up, H. C. Sproule (Napier). Paupers’ Relief Stakes : A. M. Goulding (Auckland) ;

runner-up, J. W. Ward (Wellington). Industria,l Union of Bunkereds’ Trophy : A. T.

Young (Wellington) ; runner-up, J. S. Gra.nt (Palmerston North).

Match play trophy for non-qualifiers : D. L. Taverner (C,arterton) .

Cup for best qualifying rounds : A. M. Ongley (Pal- merston North).

Teams’ match : Wellington Bench and Bar (W. F. Stilwell, E. D. Blundell, C. N. Armstrong, T. P. McCarthy).

Cy-p&s stroke handicap : A. M. Ongley, 1 ; A. W. Yortt (Palmerston North), 2.

Guarantee Fund Handicap : G. C. Phillips (Wel- lington), 1 ; J. Graham (Feilding), 2.

Certiorari Bogey Handicap : A. E. Lawry, 1 ; G. Saunders (Wanganui) and C. 0. Edmunds (Te Awamutu), 2, equal.

Public Trust Bogey Handicap : A. T. Young, 1 ; J. Humphries (Napier), 2.

Distress Foursome : W. F. Stilwell and E. D. Blundell. Butterworth Hurdles Fourball : A. W. Yortt and

I. J. Carruthers (Pahiatua). Putting competition : P. C. Miles (Feilding). Devil’s Own Sweepstake : W. A. Todd, 1 ; R.

McCaw (Hamilton), 2. Mr. A. E. Lawry, Napier, said that the success and

growth of the tourney was largely due to Mr. McGregor’s splendid efforts. On behalf of the players he presented Mr. and Mrs. McGregor with a decanter and glasses. Mr. Lawry then presented J. Galloway, Manawatu professional, with a pipe on behalf of the players.

-- Wellington Junior Tournament.

Held mainly for the junior members of the Profession, the annual Dominion Day golf tournament was held on the Paekakariki links on Dominion Day. About thirty players took part.

An individual bogey round was held in the morning for the “ Little Devil’s Own ” trophy, which was won by J. McCarthy, one up. I). Riley finished square, followed by G. A. Wylie, W. Kember, and K. G. Twiss, one down,

A fourball bogey resulted in a win for K. G. Twiss and G. A. Wylie, with a score of five up, followed by C. Redward, G. Riddell, and F. J. Kelleher, one up.

October 6, 1936 New Zealand Law Journal. 271

Practice Precedents. Decree Nisi to Respondent-No Damages against Co-

respondent-Costs. Decree Nisi-Damages against Co-respondent ordered

to be paid into Court-Costs.

By s. 29 of the Divorce and Matrimonial Causes Act, 1928, a husband may in his petition for divorce claim damages from any person on the ground of his having committed adultery with the wife of the petitioner, but a petitioner is not to be entitled to claim damages in respect of adultery committed more than three years before the filing of his petition. Sec- tion 31 of the Act provides that the damages to be recovered on any such petition must in all cases be ascertained by the verdict of a jury, although the respondents or either of them may not appear ; and after the verdict has been given such damages a’re to be paid or applied in such manner as the Court directs, and the Court may direct that the whole or any part thereof must be settled for the benefit of the children (if any) of the marriage, or as a provision for the maintenance of the wife ; provided that if any such petition is dismissed no damages are recoverable from the adulterer.

Two precedents are given hereunder : In the first, no damages were awarded ; in the second, damages were awarded and ordered to be paid into Court : see s. 31, supra. In both cases the issues are submitted as well as the decree nisi in each case.

In Asher v. Asher and Another, [1931] G.L.R. 619, it was said that the case of Hall v. Hall, (1902) 21 N.Z.L.R. 251, 4 G.L.R. 208, is authority for saying that simultaneous decrees nisi might be granted to both the petitioner and the respondent, though this point may require further consideration in view of the dicta of Adams, J., in Borth v. Weir, [1929] G.L.R. 503.

In Cadwallader v. Cadwallader, [1936] N.Z.L.R. 621, G.L.R. 576, it was held that, in a case where both parties were found guilty of adultery, the Court has power in its discretion to withhold a decree upon the respondent’s application ; and that there should be only one decree dissolving the one marriage, and, accordingly, there should be in existence at one time only one decree nisi upon which the decree absolute may be made. It was directed that where such a decree nisi is granted to the petitioner, the decree should be drawn up so as to show that both parties have been found guilty of adultery, and liberty should be reserved to the respondent to apply for a decree nisi upon his answer in case it should later appear to the Court that neither the petitioner nor the respondent can obtain a decree absolute upon the decree nisi granted to the petitioner.

In the first precedent it is assumed that the decree is granted to the respondent only on the issues (No. 1) which issues are similar to those in Asher’s case.

Issues No. 1 WITI, !LNSWERS.

1. Did the respondent commit acl.:‘tery with the co- respondent ? Answer : Yes.

2. Did the co-respondent commit adultery with the respondent ? Answer : Yes.

3. If the co-respondent did commit adultery with the respondent, what damages, if any, is the petitioner entitled to ? Answer : None.

I:

4. Did the petitioner commit adultery with M. ? Answer : Yes.

5. If the petitioner did commit adultery with M., was such adultery condoned ? Amswer : Yes.

6. If the petitioner did commit adultery with M., and such adultery was condoned, was such adultery revived by the subsequent cruelty of the petitioner ? Answer : No.

DECREE NISI GRANTED ON ISSUES No. 1. IN THE SUPREME COURT OF NEW ZEALAND.

. . . . . . District. IN DIVORCE.

. . . . . . . . R,egistry. NO.

BF,TWBRN Petitioner AND Respondent AND Co-respondent.

day the day of 19 . THIS SUIT c~oming on for trial on the day of

19 before the Honourable Mr. Justice and a common jury of twelve persons. UPON READING the Petition filed herein on behalf of the petitioner and the answers filed on behalf of the respondent and the co-respondent and the affidavits verifying the same UPON HEARING Mr.

of Counsel for the petitioner Mr. of Counsel for the respondent and Mr. of Counsel for the co- respondent AND UPON HEARING the evidence adduced on behalf of the petitioner the respondent and the co-respondent and the jury on the issues having found that the respondent committed adultery with the co-respondent and that the co- respondent committed adultery with the respondent and that the petitioner committed adultery with one and t,hat the petitioner’s said adultery was condoned but was revived by the subsequent cruelty of the petitioner and the jury having made no award of damages THIS COURT being satisfied that the case of the respondent has been proved and not finding that the respondent has been in any manner accessory to or conniving at the adultery of the petitioner as set forth in the said answer or that the answer is presented or prosecuted in collusion with the petitioner and being satisfied that the adultery of the petitioner has been condoned by the respondent but has been revived by the cruelty of the petitioner to the respondent DOTH DECREE that unless cause be shown why this decree should not be made absolute the marriage of the petitioner with the respondent held and solemnized on the

day of 19 at be dissolved and that an application to have this decree made absolute may be made by motion in Court at any time after the expiration of three months from the date hereof AND THE COURT doth order that until the further order of the Court the respondent shall have the custody of and the children of the said marriage but it is directed that the said children be not removed out of the jurisdiction of the Court without its sanction AND THE COURT DOTH FURTHER ORDER that the co-respondent pay the petitioner f: for costs and that the petitioner pay t,he respondent E for costs.

By thn Court. Registrar.

Norm%-Should the petitioner or respondent contract marriage before the decree shall be made absolute, then such contracting party will be guilty of bigamy.

Registrar.

ISSUES No. 2, WITH ANSWERS. 1. Has the respondent committed adultery with the co-

respondent ? Answer : Yes. 2. Has the respondent committed adultery with the

respondent ? Answer : Yes. 3. Assess the damages : Q .

DECREE NISI-DAMAGES-ISSUES No. 2. (Same heading.)

day the day of 19 . THIS CAUSE coming on for trial on the and days of 19 before the Honourable Mr. Justice and a common jury of twelve persons UPON READING the Petition filed herein and the affidavit verifying the same AND UPON HEARING Mr. of Counsel for the petitioner, Mr. of Counsel for the respondent, and

272 New Zealand Law Journal. October 6, 1936

Mr. of Counsel for the co-respondent AND UPON HEARING the evidence adduced on behalf of the petitioner, the respondent, and the co-respondent, and the jury having found on the issues that the co-respondent committed adultery with the respondent and that the respondent committed adultery with the co-respondent and that the co-respondent do pay to the petitioner the sum of pounds (g ) for damages THIS COURT not finding that the petitioner has been in any manner accessory to or conniving at the adultery of the respondent as set forth in the said petition or has condoned the same or that the petition is presented or prosecuted in collusion with the respondent or the co-respondent DOTH DECREE that unless cause be shown why this decree should not bo made absolute the marriage of the petitioner with the respondent had and solemnized on the day of 19 at be dissolved and that an application to have this decree made absolute may be made by motion in Court at any time after the expiration of three calendar months from the date hereof AND THIS COURT DOTH ORDER that until the further order of the Court the petitioner shall have tho custody of and tho children of the said marriage, but it is directed that thi said children be not removed out of the jurisdiction of the Court without its sanction AND THIS COURT DOTH FURTHER ORDER that the co-respondent do lodge in this Court the sum of pounds (S ) the amount of damages assessed by the jury to abide the further order of the Court AND THIS COURT DOTH FURTHER ORDER that the co-respondent pay the petitioner the sum of pounds (E ) for costs and that the petitioner pay the respondent the sum of pounds

W ) for costs. By the Court.

Registrar.

ALTERNATIVE FORM OB ORDER AS TO COSTS. . . . AND THIS COURT DOTH FURTHER ORDER

that the potitionor do pay t,o the respondent hor costs on the higher scale as on n dofended suit togcthor with witnesses’ expenses and disbursements to be fixed by the Registrar and an allowance of $8 8s. for the second day of trial and that tho amount of such costs be added to the costs hereafter mentioned of the petitioner against the co-respondent and be paid by the said co-respondent AND IT IS ORDERED that the co- respondent do pay to the petitioner his costs on tho higher scale as on a defended suit together with witnesses’ expenses and disbursements to be fixed by the Registrar together with an allowance of c8 8s. for the second day of trial.

By the Court. Registrar.

NOTICE.-Should the petitioner or respondent contract marriage before the decree shall be made absolute, then such contracting party will be guilty of bigamy.

Registrar.

Practice Note. Rule 185 : Preparation of Affidavits.

In an oral judgment delivered recently in respect of a summons to strike out an affidavit, Mr. Justice Ostler, after saying that on several occasions he had had to drew attention to the laxity with which affidavits are drawn, continued :

‘<An affidavit is the solemn oath of the deponent as to facts within his own knowledge, and he is not permitted by the Rules to give any hearsay evidence except on interlocutory proceed- ings ; and then he is required to state the grounds of his belief in the fact to which he deposes.

“ This is not an interlocutory proceeding, but one in which the rights of the parties will be finally decided.

“ It is important in tho interests of justice in such cases that this Rule should be strictly enforced, and that affidavits should be confined to facts within the knowledge of the deponent.

“ In this case the deponent is a solicitor. He has filed a long affidavit. of fifty-one paragraphs, and in nearly half of them he has infringed R. 185, inasmuch as he deposes to facts which could not have been within his knowledge if he did not attend the Magistrate’s Court proceedings in Wellington, which it is admitted ho did not, Moreover, he expresses opinions in various places instead of confining himself to facts.

“The affidavit is so gross a breach of the Rules and it is so long that it would be very inconvenient to strike out the

- -

offending paragraphs which have been interspersed through it. It will be more convenient to reject the whole of the affidavit, leaving it to the defendant to prove the facts it wishes to prove by a fresh affidavit or affidavits.”

It was ordered that the whole affidavit be treated as a nullity and not be allowed to be read at the trial, with costs to the opposing party.

Bills Before Parliament. Industrial Efficiency Bill.-The proposed Act is expressed to

be an Act to promote the economic welfare of New Zealand be providing for the promotion of new industries in the most economic form and by so regulating the general organization, development, and operation of industries that a greater measure of industrial efficiency will be secured. Cl. 3 provides for the constitution of a bureau of industry. The bureau is to be appointed by the Minister of Industries and Commerce and provision is made for the appointment of persons to represent different interests engaged in industry. Cl. ‘7 prescribes the functions of the bureau which in general are to make reoom- mend&ions to the Minister, after inquiry, in respect of matters arising in the course of administration of the Act. Cl. 9 provides for the preparation and submission to the Minister of “ industrial plans.” Cl. 10 provides for the establishment of industrial committees the functions of which will be to prepare and submit industrial plans and generally to oversee the operation of the plan when it is adopted. Cl. 14 provides for the imposition of levies to provide for the cost of preparation and administra- tion of plans.

Part III provides for the registration andlicensing of industries. Cl. 15 provides for the completion and maintenance of registers containing such information as the Minister shall specify. Cl. 16 provides that if the Minister so directs no industry shall be carried on except under a license to be issued under the Act. Tho licensing authority will be the bureau, and in considering applications for licenses in respect of industries not being carried on at the date of the appliaction tho bureau shall take into account the mat.ters specified in cl. 18 which include all matters likely to affect the proposed industry. In considering ctpplica- tions for licenses in respect of existing industries the bureau is to consider such of the matters referred to in cl. 18 as it considers relevant and such other matters as it thinks fit. The bureau may grant or refuse licenses or grant licenses subject to conditions. Cl. 21 provides for the revocation of licenses. Cl. 23 gives a right of appeal to the Minister from decisions of the bureau. Cl. 25 provides that no person shall commence to carry on any industry specified by the Minister unless he gives notice of his intention to do so.

Land and Income Tax Amendment Bill.-This Bill amends the Land and Income Tax Act, 1923. Cl. 1. Act to come into force on April 1, 1936. Cl. 2 amends the definition of “ Native.” Cl. 3 m-enacts s. 52 of the principal. Act, which was repealed by s. 2 of the Amendment Act, 1931, and provides for the assessment of lessees for land-tax. Cl. 4 adds to the list of exemptions from land-tax provided by s. 69 of the principal Act, land owned by trustees of superannuation funds. Cl. 5 reduces the rate of land-tax payable by the owners of property used for religious, charitable, or educational purposes. Cl. 6 provides for the deduction by way of exemption from assessment of the sum of s210 from the income of all individuals and repeals the existing provisions making that exemption reducible with increase of income. Cl. 7 provides that no exemption shall be allowed for unemployment-tax payments. Cl. 8 provides that an exemption may be made in assessing income for tax in respect of premiums paid on account of leased machinery. Cl. 9 amends s. 81 of the principal Act, and provides that, in respect of claims for exemption by companies on account of loss incurred in a previous year, the exemption shall not be allowed unless the Commissioner is satisfied that the shareholders are substantially the same in the year of the loss as in the year immediately preceding assessment. Cl. 10 provides that income derived by life insurance companies otherwise than from the business of life insurance shall be liable for income- tax without exemption. Cl. 11 relates to income-tax on income derived from debentures. Cl. 12 provides that the sum of E50 shall be added to the flat exemption of $210 allowed by cl. 5, in respect of a wife or a husband, and cl. 13 makes a similar provision in respect of a housekeeper. Cl. 14 provides that the Commis- sioner may allow income-tax to be paid by instalments. Cl. 15 provides that in respect of income derived from alimony or maintenance, for the purpose of the Act, the payor shall be deemed to be the agent of the payee.