I New Zealand -...

March 19, 1935 New Zealand Law Journal.

New Zealand

” The common law of England is no crystallized code ; its adaptability is one of its chief advantages, and it seeks within due bounds to facilitate, not to fetter, trade and industry.”

--XANKEY, L.J., as be then was in English Hop Growers, Ltd. v. DeringN [1928] 2 K.B.

174, 187.

Vol. XI. Tuesday, March 19, 1935 No. 6

Commissions of Inquiry and Forensic Privilege.

T HE law as to judicial privilege has developed ih process of time. “ No action will lie for defamatory

statements, whether oral or written, made in the course of judicial proceedings before a Court of Justice or tribunal recognized and constituted according to law, even though such statements are made maliciously, without any justification or excuse, and from Fersoral ill-will or anger against the party defamed ” : Gatley on Libel and Slander in a Civil Action, 2nd Ed. lE6. This absolute immunity was granted with the object of allowing Judges to exercise their functions free from any danger that might arise of their being called to account for any words spoken as Judges. Lord Atkin, in delivering the judgment of the Privy Council in O’Connor v. Waldron, (1934) 51 T.L&. 125, at 1). 126, said :

“ The doctrine has been extended to tribunals exercising judicial functions equivalent to those of an established court of justice. In their Lordships’ opinion the law on the subject was accurately stated by Lord Esher in Royal Aquarium and Summer and Winter Garden Society ‘u. Parkinson, [lS92] 1 Q.B. 431, at p. 442, where he s’\ys that the privilege ‘ applies wherever there is an authorized inquiry which, though not before a court of justice, is before a tribunal which has similar attributes. . . . This doctrine has never been extended further than courts of justice and tribunals acting in a manner similar to that in which such courts act.’ ”

The question is important to practitioners who appear before Commissions, of which so many are now in existence or in process of creation in t’his country, because as Kelly, C.B., said in Da&%ns v. Lord Rokeby, (1873) L.R. 8 Q.B. 655, 2G3 :

“The authorities are clear, uniform, and conclusive, that no action of libel or slander lies, whether against Judges, cozmsel, witnesses, or parties, for words written or spoken in the ordinary course of any proceeding before any Court or tribunal reoognised by law.”

Of the three classes- Judge, witness, and counsel-counsel has a special need to have his mind clear of all anxiet’y. As Brett, M.R., as he then was, said in Munster v. Lamb, (1883) 11 Q.B.D. 588, 603, 604 :

“ A counsel’s position is one of the utmost difficulty. He is not to speak of that which he knows : he is not called upon to consider whether the facts with which he is dealing are true or false. What he has to do is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that

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he could not do the duty which he is called upon to perform. For, more than a Judge, infinitely more than a witness, he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administra- tion of the law is privileged; and the reason of that rule covers a counsel even more than a Judge or a witness. . . . The reason of the rule is, that a counsel who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him.”

Section 3 of the Commissions of Inquiry Act, 1908, is as follows :

“ So long as any member of such Commission acts bona fide in the discharge of his duties, no action shall lie against him for anything he may report or say in the course of the inquiry.”

Here, it is clear, there is only a qualified privilege pro- tecting the members of a Commission appointed under the Act, for the protection afforded by s. 3 is not an absolute protection as outlined above in relation to judicial proceedings.

In Jellicoe v. Hazelden, (1902) 22 N.Z.L.K. 343, the Full Bench of the Supreme Court was asked to decide the question as to whether or not there was absolute immunity from liability in respect of words spoken by a Commissioner during the hearing of the Commission. This was prior to the passing of s. 3 of t#he Commissioners Act, 1903, which is reproduced as s. 3 of the Commis- sions of Inquiry Act, 1908, already quoted. The majority of the Court held that alleged defamatory ut’terances by a member of a Commission were not spoken upon an occasion of absolute privilege. As Stout, C.J., in the course of his judgment, said :

“ None of the cases dealing with actions against Judges, parties, counsel, or witnesses in a Court of justice is in point unless this was a Court in law. The two cases which decide this are, in my opinion, Home 2). Lord Bentinck [(1820) 2 Br. and B. 130; 129 E.R. 9071, and Dawkins v. Lord Rokeby [supa].”

He held that Dawkins v. Lord Rokeby (supra) did not apply, and that the Commission was not a Court of Justice, and there was t’hus no absolute privilege but that if malice were distinctly and clearly proved an action would lie. Williams, J., said, after explain- ing at p. 360 the ratio decidendi in Da&ins v. Lord Rokeby :

“ It is true’that the judgment in the Exchequer Chamber in Dawkins 0. Lord Rokeby speaks of ‘ Court or tribunal,’ but, as suggested by Fry, L.J., in The Royal Aquarium and Summer and Winter Garden Society, Ltd. v. l’arkinson [supa], the use of the word ’ tribunal ’ tends to embarrass the matter, because the word has not, like the word ‘Court,’ an ascer- tainable meaning in English law. Moreover, Fry, L.J., points out that in Dawkins 2). Lord Rokeby the Exchequer Chamber proceeded on the hypothesis that the word ‘ tribunal ’ was really equivalent to the word ‘Court.’ It may be that the ratio decidendi in Dawkins v. Lord Rokeby would justify the conclusion that a witness, whenever compellable to give evidence, whether before a Court or before any person or persons authorised to take his evidence, whether they constituted a Court or not, would be absolutely privileged. Court or no Court, such a witness is practically m the same position as if he were before a Court. He has the same duties and the same or similar liabilities. But the person examining him is not necessarily the Judge of a Court and entitlod to absolute protection. Dawkins V. Lord Rokeby certainly does not decide that he is so if his functions are not judicial, although he may be a member of what is in name a Court.”

For some time it was thought that our Supreme Court’s decision in Jellicoe u. Hazelden tElat Commissions under the Commissions of Inquiry Act are not in the strict sense a “ Court,” and that’ their functions, despite their ancillary powers of compelling the a’ctentlance of witnesses and of inflicting costs, are still non-judicial, may have been shaken by a subsequent decision of the Court of Appeal in England in Barrett v. Kearns, [1905] 1 K.B. 50-t, where absolute privilege was assigned to a Bishop’s Commissio:=rs whose duty was to report to

66 New Zealand Law Journal. March 19, 1935;

his Lordship, who had a discretion to act on their report “ if he should think fit.” But in O’Connor v. Waldron (supra) the Judicial Committee dismissed that case with the comment that in it, as well as in Dawkins v. Lord Rokeby (supra), there were conditions as to the way the tribunal exercised its functions, and as to the effect of its decisions, which led to the conclusion that such a tribunal had attributes similar to those of a Court of justice.

If a Commission is an administrative tribunal, or in other words, if it is an executive as distinguished from a judicial tribunal, though it may have the trappings of a Court, nevertheless it is not a Court in the strict sense of exercising judicial power : Shell Company of AUS- tralia, Ltd. 2). Federa, Commissioner of Taxation, [1931] A.C. 275, 296. And the fact that a Commission may be exercising merely administrative functions, though in so doing it must act “ judicially,” is well established and appears clearly from the Royal Aquarium case (supra). Where a Commission ap-

pointed to inquire into and report upon the working of any existing law and regarding the necessity or ex- pediency of any proposed legislation is not of such a nature as to admit parties, and such Commission exercises no judicial functions and is not a judicial tribunal in any legal sense, the inquiry is not a judicial inquiry : Timberlands Woodpulp Ltd. v. Attorney-General, [1934] N.Z.L.R. 270.

It must be understood that although the Commis- sions of Inquiry Act, 1908, gives qualified immunity to the members of a Commission, and so to counsel appearing before it, the common-law doctrine of absolute privilege extends to Commissions “ exercising functions similar to those of an established Court of justice.” For instance, there can be “ parties ” only where the rights of an individual are at stake : Reynolds v. Attorney- General, (1909) 29 N.Z.L.R. 24. As the Full Court said in the Timberlands Woodpulp case, at p. 293 :

‘I We think that the question as to whether or not pro- hibition will lie [i.e., against a Commission]-we are not referring to any other form of remedy-depends upon whether or not, having regard to the nature of a particular Commission, there are parties who are liable to be cited and against whom costs may be awarded. If there are parties who are liable to be cited, then any such party-to use the words of Williams, J., in Cock’s case [(1909) 28 N.Z.L.R. 405]-is in peril of costs ; and to that extent at all events the Commission may be said to be possessed of a judicial function.”

The Court held in effect that while the Commission under notice exercised no judicial functions and wa,s not a judicial tribunal in any legal sense, and that such Commission was not a judicial inquiry, it is open to show in the case of a Commission of Inquiry that it has the attributes of a judicial tribunal. It follows, therefore, where the provisions of the Commissions of Inquiry Act, 1908, have been imported into other statutes, the immunity to Commissioners, counsel, and witnesses may in appropriate circumstances I;e absolute, or, in other circumstances, it may be merely qualified privilege. Each Commission’s or tribunal’s powers must be examined for the purpose.

The provisions of the Commissions of Inquiry Act have been imported to a widely varying extent in s. 36 of the Transport Licensing Act, 1931 (Licensing Authority) and in s. 12 of the Transport Law Amend- ment Act, 1933 (Transport Co-ordination Board) ; s. 15 of the Counties Act, 1908 ; s. 4 of the River Boards Act, 1908 ; s. 2 of the River Boards Amendment Act, 1917; s. 138 of the Municipal Corporations Act, 1932. In each case, counsel would do well to consider whether the tribunal so sut up is discharging administrative duties or judicial functions.

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As Lord Atkin said, in delivering the judgment of ;he Judicial Committee in the recent case of 0’ Connor ). Waldron (supra) :

“ The question in every case is whether the tribunal in question has similar attributes to a court of justice or acts in a manner similar to that in which such courts act ? This is of necessity & dijjerentiae which is not capable of very precise limitation. It is clear that the functions of some tribunals bring them near the line on one side or the other, and the final decision must be content with determining on which side of the line the tribunal stands. There must be remembered on the one hand the public policy which protects the inde- pendence of the Judge, and on the other the public policy which requires that a citizen’s reputation must be protected against false and malicious defamatory statements.”

Where, as in this recent Canadian case, a Commissioner has not when exercising the duties of his Commission attributes similar to those of a Court of Justice, his duties are of an administrative, and not of a judicial, nature ; and his conclusion, which is expressed in the form of a report, determines no rights nor the guilt or innocence of anyone. The measure of protection which he, or counsel appearing before him, enjoys is that he is protected if he establishes that he spoke words com- plained of on a privileged occasion and the complainant fails to prove express malice. On the other hand, when a Commission exercises judicial functions and has the attributes of a Court of justice, Commissioners and counsel have, in otherwise similar circumstances, absolute privilege.

Summary of Recent Judgments. SUPREME COURT

Auckland. 1935. THE KING v. ILICH.

Feb. 12. Fair, J. I

Criminal Law-Bigamy-Evidence-Admissibility of Certified Extract from Marriage Register of a Parish in Yugoslavia- Yugoslavian Priest-Whether Expert Witness as to Marriage Law.

The Crown in a trial for bigamy called a Roman Catholic priest, a native of Yugoslavia, who produced what purported to be a certified extract from the marriage register of a parish in Yugoslavia, showing an entry which the accused admitted was that of his own marriage with a woman in that country. The witness himself had not officiated at the ceremony. He stated that he was well acquainted with the priest who bad issued the certificate, and that he could identify the signature thereon. The identity of the parties was established.

H. J. Butler, for the accused ; Hubble, for the Crown.

Held, 1. That the strict rule of the common law of England relating to the proof of foreign marriages applies in New Zealand, despite the greater difficulty in the Dominion of proof and in obtaining evidence.

2. That the priest, who, on being recalled, stated that the parish priest in Yugoslavia was paid a fee by the Government for keeoine the register and issuing certificates of marriage and that su>h certificaies were accepte’d in the Courts of Yug&lavia in proof of the marriage, was an expert qualified to testify as to the marriage law of Yugoslavia.

3. That the copy of the register was admissible in evidence.

Sussex Peerage Case, (1844) 11 Cl. & F. 85, 8 E.R. 1034, and R. v. Savage, (1876) 13 Cox. C.C. 178, referred to.

Solicitor. Crown Solicitor, Auckland, for the Crown,

Case Annotation : For the Sussex Peerage Case, see E. 8: E. Digest, Vol. 22: title Evidence, p. 627, para. 6918; and for R. v. Savage, ibzd., p. 625, para. 6901.

Maroh 19, 1935 New Zealand Law Journal.

SUPREME Cou~lp \ Christchurch.

1935. RADLEY BROS., LTD. v. REILLYS Feb. II, 15. CENTRAL PRODUCE MART, LTD.

Johnston, J. I

Contract-Construction-Arrangement Part Positive, Part Nega- tive-Breach-Injunction-Damages.

Plaintiff and the defendant entered into tho following contract to regulate the distribution of bananas in Christchurch and Dunedin :

“Confirm arrangement we market ez South Island discharge Pomare six hundred fifty Samoans Dunedin you market hundred Niue Christchurch our control Christchurch Timaru Oamaru Invercargill should prevent this being broken but if any additional quantity does reach Dunedin then you have right following trip market similar additional quantity here presume foregoing satisfactory to you if not telegraph immediately desire work amicably with you.”

Upham, for the plaintiff ; Hutchison, for the defendant.

Held, That the arrangement, part of which was positive and part negative, and dealing with property of a perishable nature, was too loose for the Court to enforce Its terms by injunction, and that the plaintiff should be left to pursue his remedy (if any) by way of damages.

Doherty v. Allman and Dowden, (1878) 3 App. Cas. 709 ; Ex- press Dairy Co. v. Jackson, (1930) 99 L.J.K.R. 181, and London and Blackwall Railway Co. v. Cross, (1886) 31 Ch. D. 354, referred to.

Solicitors : Harper, Pascoe, Buchanan, and Upham, Christ- church, for the plaintiff; W. G. Hay and Thomson, Dunedin, for the defendant.

Case Annotation : For Doherty v. Allman. and Dowden, see E. & E. Digest, Vol. 28, p. 364, para. 14 ; London and Bkaclcwal~ Railway Co. vu. Cross, ibid., p. 365, para. 25 ; Express Dairy Co. v. Jackson, Supplement, title Trade, para. 4980.

SUPREME COURT Auckland.

1934. Dec. 13.

1935. Feb. 28.

Fair, J.

MILNE AND MEEK

F. AND THE P:BLIC TRUSTEE.

Law Practitioners-Solicitor-Lien-Solicitors successful in suit for client to cancel option to purchase land at alleged gross undervalue and regain possession of land-Land put into custody of Court-Land sold by one of solicitors as mortgagee- Solicitors’ claim to lien on surplus after payment of mortgage and costs of sale-Whether fruits of Litigation-Public Trustee Custodian of Estate of Client, a Mental Defective-Whether Court should direct Payment by Public Trustee of Judgment for Costs obtained by Solicitors against Client-Mental De- fectives Act, 1911, ss. 100, (m), (q), (r) ; 114.

Plaintiffs’ solicitors, on the instructions of F., the first-named defendant, owner of land in Tahiti, took proceedings against K. to cancel an option to purchase such land for 5500 and to regain possession of the land, possession whereof had been given by F. to K. Pending the determination of the action, which was successful, the property was put into the custody of the Court. At the request of a friend and adviser of F., one of the plaintiffs, who had a mortgage over the land, sold the land through an officer corresponding to the Registrar of the Supreme Court of New Zealand, for the price of 78,OOOfr. (651,051 5s. Od.), but in the meantime F. had been committed to a Mental Hospital and the Public Trustee appointed Custodian of his estate. The surplus after repayment of the amount due under the mortgage and the costs of sale came into the hands of the Public Trustee.

The plaintiffs claimed a lien for such moneys for the amount of their costs, f298 7s. lOd., in respect of services rendered by them as aforesaid to F.

Finlay, for the plaintiff; Cocker, for the defendants.

Held, That the plaintiffs being entitled to judgment for that amount against F. for their costs, the moneys received by the Public Trustee were not received as the result of litigation oon- 3ucted by the plaintiffs but were the fruits of the sale by the mortgagee.

Semble, Even if the moneys could be considered the fruits ot ;he litigation, they were with the plaintiff’s consent paid to the Public Trustee, who received them as F.‘s agent.

The learned Judge declined to direct the Public Trustee under 1. 100 (m), (Q), and (T) and s. 114 of the Mental Defectives Act, 1911, to pay the plaintiffs’ costs or a portion of them, as making provision for the adequate maintenance of F., the first duty >f the Public Trustee, would absorb in a very short time the whole of the moneys received, but indicated that. if the Minister in Charge of Mental Hospitals were to agree to a portion of the &mount in law being paid to the plaintiffs, the Public Trustee sight properly pay g200 if accepted in full satisfaction of the iudgment against F.

Meguerditchianv. Lightbound, [1917] 1 K.B. 297, In re Wheater 119281 Ch. 223, and Re Smith, [19271 G.L.R. 274, referrod to.

Solicitors : G. P. Finlay, Auckland, for the plaintiffs ; Hesketh, Richmond, Adams, and Cocker, Auckland, for the defendant.

Case Annotation: For Meguerditchian v. Lightbound, see E. & E. Digest, Vol. 42, title Solicitors, p. 274, para. 3879.

NOTE :-For the Mental Defectives Act, 1911, see THE RE- PRINTOFTHE PUBLICACTS OF NEWZEALAND,~~O&1931, Vol.5, title Mental Defectives, p. 743.

COURTOFARBITRATION Auckland.

1935. Feb. 20; March 1.

l?razer, J.

HEATH v. WAIHI GOLD-MINING r I

COMPANY, LTD.

Workers’ Compensation-Slight Abrasion of Skin without inconvenience-Employer’s Notice requiring Report for Treatment of Accident, however slight-Delay in reporting until Knee inflamed-Incapacity in Consequence of Septic Condition- Possibility of arresting or lessening Infective Process if Notice complied with at earliest Opportunity--Bona fide belief that Injury Trivial-Whether Failure to give Notice earlier occasioned by reasonable Cause- Workers’ Compensation Act, 1922, s. 26 (2).

Claim for compensation in respect of an injury by accident received by the plaintiff while employed by the defendant company.

It is generally known by the miners of Waihi that, owing to the presence of impurities in the mine water, cuts and abrasions frequently become septic. The company established a dressing- station at the mine for the treatment of minor wounds, placed a qualified nurse in charge, and displayed notices of this provision for treatment, requiring any employee meeting with an a&dent, however slight, to report for treatment before leaving the property on the day of accident, and adding “all cases of cuts and abrasions will report daily for treatment.”

Plaintiff while kneeling at work had his skin punctured by quartz fragments, but felt no inconvenience. Two non-working days elapsed and on the evening of the next working-day he felt his knee burning and bathed it. As no improvement resulted, he consulted a medical practitioner, the knee became acutely septic, and he was incapacitated for four weeks. He reported the accident on the morning after he discovered his knee had beaome inflamed, the fourth day after it occurred. Had he reported at, the earliest opportunity, ten or eleven hours after the accident, the progress of the infective process could probably have been arrested or lessened by appropriate treatment. The defendant company was therefore prejudiced by the plaintiff’s failure to give prompt notice of the accident. Plaintiff had on several occasions suffered from septic wounds, but he and his fellow-miners frequently received apparently negligible cuts and abrasions, the greater number of which did not become septic.

68 New Zealand Law Journal. March 19, 1935

On the evidence the Court found that the plaintiff honestl: believed that his injury was trivial and would have no seriou consequences.

P. J. O’Regan, for the plaintiff ; Richmond for the defendant.

Held, That the failure to give notice earlier was occasioned bJ reasonable cause and was accordingly excusable.

Webster v. Cohen Bros. Ltd., (1913) 108 L.T. 197, 6 B.W.C.C 92 ; Snelling v. Norton Hill Colliery Co., Ltd., (1913) 109 L.T. 81 6 B.W.C.C. 506 ; Evans v. Pen-Maen-Mawr and Welsh Granltc Co., (1931) 24 B.W.C.C. 443 ; and Bedford v. Bell and Wlnney Ltd., (1933) 26 B.W.C.C. 161, applied.

Solicitors : P. J. O’Regan and Son, Wellington, for the plaintiff ; Buddle, Richmond, and Buddle, Auckland, for the defendant.

Case Annotation : Webster 2). Cohen Brothers, Ltd., E. & E Digest, Vol. 34, pare. 2930, p. 362 ; Snelling v. Norton Hill Colliery Co., Ltd., ibid., para. 2949, p. 365 ; Evansv. PewMaen. Mawr and Welsh Granite Co., Ltd., ibid., Supplement No. 9 t? Vol. 34, para. 2948a, title Master and Servant, p. 48; Bedford v. Bell and Winney, Ltd., ibid., para. 2951c, p. 48.

NOTE :-For the Workers’ Compensation Act, 1922, 888 THE REPRINT OF THE PUBLIC ACTS OF NEW ZEALUD, 1908. 1931, Vol. 5, title Master and Servant, p. 597.

SUPREME COURT Timaru.

1935. Feb. 6 ;

March 1. Johnston, J.

PATTISON v. KNUBLEY AND OTHERS.

Husband and Wife-Disappearance of Husband-Remarrlagc of Wife within Five Months of date when First husband last seen-Validity of Marriage-Onus of Proof-Presumptior of Death-Birth of Daughter at a Date when Access posslble between First Husband and Wife-Legitimacy of Daughter- Whether First Husband alive or dead at Date of Remarriage.

N. attempted to commit suicide in January, 1886. Records from a hospital in Timaru showed he was there from January 21 to February 20, when he was discharged as cured. He was last seen at the end of February, 1886. He and his wife, J., in that month both left powers of attorney to the same person and either saw or communicated with their solicitor. J. on July 5 married P. in Melbourne. J.‘s daughter I. was born on January 17, 1887.

In an actio,- by I. claiming as one of the surviving children of J. an interest under a Deed of Settlement relating to legitimate children only,

M. G. MeArthur, and McRae, for the plaintiff ; Rolleston, for the trustees ; Grayling, for defendant Newton ; Brokenshire for L. G. Newton.

Held, 1. That there was a presumption at the trial of the action that N. was dead in 1935, the date of the action.

2. That a prima facie properly-solemnized marriage, duly recorded, having been contracted with P. after the date of N.‘s disappearance, which at the trial had lasted not less than seven years from a time prior to the second marriage, the presumption was that the marriage was valid and that J. had not committed bigamy, and the onus was on the party impeaching the marritge to prove that N. was alive at the time of the celebration, which onus had not been discharged ; and J. was, therefore, the legitimate child of J. by J.‘s marriage with P., and entitled to take under the deed.

3. That, even if N. were alive on July 5, 1886, the plaintiff in that event was a legitimate child by her mother’s first marriage with N., even if improper relations had taken place between J. and P., as alleged, as it had not been shown that during the period when conception must have taken place the husband had non-access to his wife.

I. was therefore entitled to succeed whether N. were alive or dead on July 5, 1886.

The King v. The Inhabitants of Twyning, (1819) 2 B. and Ald. 386, 106 E.R. 407 ; Ousley v. Ousley, [1912] V.L.R. 32 ; and Ah Chuck v. Needham, [1931] N.Z.L.R. 559, applied.

Solicitors : Reyburn, McArthur, and Boyes, Auckland, for the plaintiff; Tripp and Rolleston, Timaru, for the trustees; Standish, Anderson, and Brokenshire, New Plymouth, for defendant L. G. Newton ; Weston, Ball, and Grayling, New Ply-’ mouth, for defendant H. W. E. Newton.

Case Annotation : For The King o). Inhabitants of Twyning, see E. & E. Digest, Vol. 14, p. 429, para. 4542.

SUPREME COURT \ New Tlyyth. 1

Novembei 26 : L IN RE TARANAKI AMUSEMENTS

tHAWERA). LIMITED. 1935. ’

I

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February 20. Smith, J.

Company-Winding-up Petition by fully-paid Shareholder-No tangible Surplus of Assets in which he will participate-other Grounds required for Winding-up Order by Court-Companies Act, 1933, s. 172 (1).

In spite of s. 172 (1) of the Companies Act, 1933, a full-paid shareholder, who petitions solely in that character, and who cannot show that there will be a tangible surplus of assets in which he will participate, should establish as part of his ground for the order that the sub-stratum of the company has gone or that there is a case for investigation in the affairs of the company or that there is some other good reason for incurring the costs which are the consequence of a winding-up order of the court.

In re Rica Gold Washing Co., (1879) 11 Ch.D. 36, and Re Kaslo-Slocan Mining and Financial Corporation, Ltd., [1910] W.N. 13, referred to.

Counsel : R. J. O’Dea, for petitioner, in support of petition for winding-up ; North, for the company, to oppose; J. C. Nicholson, for all shareholders except petitioner, to oppose.

Solicitors : O’Dea and O’Dea, Hawera, for the petitioner ; Homer and North, Hawera, for the company.

Case Annotation : In re Rica Gold Washing Co., E. & E. Digest, Vol. 10, para. 5497, p. 838; Re Kaslo-Slocan Minang and Financial Corporation, Ltd., ibid., para. 5499, p. 538.

SUPRE~~E COURT Auckland.

1934. December 10 ;

1

GRAYDON v. LOWE. 1935.

January 10. Smith, J.

lustices of the Peace-Appeal-General Appeal-Duty of Appel- lant as to Service of Notice within prescribed Time-Justices of the Peace Act, 1927, s. 316.

Motion for an order dismissing or striking out an appeal under . 77 of the Destitute Persons Act, 1910, on various grounds, of which the first is that the appellant had not complied with the lrovisions of s. 316 of the Justices of the Peace Act, 1927, subs. 1 sf which requires, inter alia, an appellant, within seven days ,fter a conviction or the making of an order, to give to the omplainant notice in writing of such appeal.

Where the act or default of the respondent, which prevents ervice of notice of appeal within the time prescribed by 8. 316 #f the Justices of the Peace Act, 1927, is that he cannot be znmd at the required time, then, in the case of the absence of the lagistrate, the appellant should do all he can to comply with the tatute.

Crowe v. McWatt, (1913) 33 N.Z.L.R. 88, as extended by #yred v. Carruthers, (1858) E.B. & E. 469; 120 E.R. 584, ap- Ilied.

If the appellant leaves the service of his notice, required by . 316 (1) to be given by appellant within seven days after a con- iction or the making of an order, until the last day, he cannot ssume on that day, any more than on any other day during the 3ven days, that the respondent must necessarily be at home t the particular hour at which appellant or his agent chooses 3 call.

March 19, 1935 New Zealand I - daw Journal.

On the other hand, if it were a reasonable inference from the facts that the respondent could not be served at his last-known place of abode because he was away or hiding therein during the last, day for service, or even, according to circumstances, during the last quarter of that day, it could be held that service had been prevented by some act of the respondent.

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Solicitors : P. W. Dorrington, Dannevirke, for certain of the plaintiffs ; Cooper, Rapley, and Rutherfurd, Pahnerston North, for other plaintiffs; Gifford Moore, Ongley, and Tremaine, Palmerston North,. for defendants Thompson and Bassett ; Lloyd and Lloyd, Dannevirke, for defendant Stewart.

NOTE :-For the Trustee Act, 1908, see THE REPRINT OF THE PWLIC ACTS OF NEW ZEALAND, 1908-1931, Vol. 8, title Trusts and Tm48tee8, p. 873.

Edmonds v. Edmonds, [I9341 N.Z.L.R. 1083, distinguished on the facts.

Service on solicitors who acted for the respondent in the Magis- trates’ Court is not in itself sufficient, if they have no authority to accept service.

Semble, Service on such solicitors is, however, a factor to be taken into account in considering whether the appellant did 511 that he could to comply with the statute.

Counsel : Matthews, for the respondent, in support ; Singer, for the appellant, to oppose.

Solicitors : R. A. Singer, Auckland, for the appellant; Matthews and Clarke, Auckland, for the respondent.

Case Annotation : Byred v. Carruthers, E. & E. Digest, Vol. 33, para. 1265, p. 416.

NOTE :-For the Justices of the Peace Act, 1927, see TEE REPRINT OF THE PUBLIC ACTS OF NEW ZEALAND, 1908-1931, Vol. 2, title Criminal Law, p. 351.

SUPREME COURT \ Palmerston North.

1934. IN RE BASSETT, DECEASED, BASSETT Nov. 1,2, 5, 6. AND OTHERS v. BASSETT

1935. I

AND OTHERS (No. 3). Feb. 28.

Blair, J.

Trusts and Trustees-Breach of Trust-Farmer-trustee acting gratuitously in Advisory Capacity as to Farming Operations only-Unauthorized Loans, of which he was ignorant, to one of his Co-trustees with Concurrence of the Third Co-trustee- Court’s Power to relieve from Personal Liability-Trustee Act, 1908, s. 89.

S., a retired farmer, was asked by T. and B. to act, and did act, as their co-trustee in an estate, the main asset of which w&a a farm, for the purpose of advising as to the farming operations. He stipulated that he could act only in an advisory capacity and declined to have anything to do with the keeping of books or the signing of cheques. His sole activities in the trust were about half-a-dozen visits to the farm to advise as to its working, and discussion of such working with B. when they met,. The balance-sheets of the trust were audited and printed and copies sent to S.

In an action against the three trustees, judgment was given against T. and B. for certain unauthorized loans to B. with T.‘E concurrence. S. knew nothing of these loans, which were included in the item “ Sundry Debtors ” in balance-sheets for two of the years during which S. was trustee, but of which the auditor made no mention in the balance-sheet or to S.

Dorrington, for some plaintiffs; H. R. Cooper, for other plaintiffs ; A. M. Ongley, for two of the trustees, F. J. Bassett and C. H. Thompson; G. Lloyd, for A. L. Stewart, a trustee in the estate.

Held, That, even if F. as a trustee were liable for the defaults of T. and B. during the period S. remained a trustee, which was doubtful, S. had acted gratuitously, honestly, and reasonably, was entitled to place reliance on the auditor so far as the accounts were concerned, and “ought fairly to be excused ” for the breach of trust.

The Court, therefore? made an order under s. 89 of the Trustee Act,, 1908, relieving hun wholly from personal liability for the above-mentioned breaches of trust.

In re Turner, Barker v. Ivimey, [1897] 1 Ch. 536, and National Trustees Co. of Australasia, Ltd. v. General Finance Co. of Aus- tralasia, Ltd., [1905] A.C. 373, referred to.

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Case Annotation : For In re Turner, Barlcer u. Ivimey, see E. & E. Digest, Vol. 43, title Trusts and Tru&ees, p. 994, para. 4352; and for National !hustees Co. of Australasia, Ltd. v. General Finance Co. of Australasia, Ltd., ibid., para. 4360.

SUPREHECOURT Christchurch.

1935. Feb. 21 ; Mar. 6.

Johnston, J.

IN RE A PRIVATE COMPANY.

Company Law-WindIng-up-Petition-Company Insolvent- Petitioning Creditor’s Debt disputed-Application to stay Proceedings.

Where a company is insolvent, the Court will not stay the proceedings on the ground that there is a bona, fide dispute as to the petitioning creditor’s debt.

In re London and Paris Banking Corporation, (1874) L.R. 19 Eq. 444, and Cercle Restaurant Castiglione Co. v. Lavery, (1881) 18,Ch. D. 555, and Niger Merchants Co. v. Capper, (1877) 18 Ch.D. 557, n., referred to.

Counsel : Wanklyn, in. support of motion for order staying further proceedings in winding-up petition ; Hoggard, to oppose.

Solicitors : Lane, Neave, and Wanklyn, Christchurch, for the debtor company ; Findlay, Hoggard, Cousins, and Wright, Wellington, for the creditor companies.

Case Annotation : In re London and Paris Banking Corpora- tion, E. & E. Digest, Vol. 10, p. 821, para. 5343 ; Cercle Restau- rant Castiglione Co. v. Lavery, ibid., p. 834, para. 5451.

The Rhodes-Moorhouse Appeal.-Further to the report which appeared on p. 58 ante, it is interesting to note that in his judgment as reported [1933] N.Z.L.R. at 1379, 1. 36, the learned Chief Justice, after setting out s. 5 of the Rhodes Trust Act, 1901, now referred to in the judgment of the Judicial Committee, said :

“ It was not contended by counsel for the plaintiff that the effect of this enactment was to vest the proceeds of sale, or the investments representing such proceeds, absolutely in the tenant in tail (subject, of course, to the life interest of Mary Ann Moorhouse), cf. In re Price, 119281 1 Ch. 579, 590, 592. It was presumably felt that, whatever its true construction, the Act, at least effects a result in respect of per- sonalty that the testator himself could not legally have effected.”

He then proceeded to refer to the contentions put forward by counsel for the plaintiff and the alternative construction urged by counsel for some of the other parties. Their Lordships held that the words in s. 5 of the Act, “ entitled to occupation of the land in respect of which money shall have been received,” indicate that the vesting was intended to be postponed and that no absolute vesting was to take place except in the first tenant in tail who was entitled to actual possession of receipt of the rents and profits of the settled land.


Judicial Committee of the Privy Council. The Right Honourable Viscount Sankey of Moreton.

It is not within the scope of this article to describe the strange and multiform powers and duties-legis- lative, judicial, a.nd administrative-of the Lord High Chancellor of England. All Judges, save he, must eschew politics when they take office. He, the highest of them all, is of necessity a strong party politician ; he is a member of the Government formed by the dominant party, and when it falls he falls with it, making room for his successful rival of the opposing political combination. While in power he, the politician, is the person who is responsible for the appointment of High Court and County Court Judges- and Magistrates -all of whom in politics must thereafter hold their peace. For the present purpose it is sufficient to say that when he is present he presides, as of course, in the House of Lords and at the sittings of the Judicial Committee of the Privy Council.

It was Lord Hewart, Lord Chief Justice of England, who on an ‘occasion when the members of the Garrick Club were congratulating their fellow-member, Lord Sankey, on his appointment,, called attention to the trans- itory glories and splendours of the Woolsack, as compared with the permanence of the Lord Chief Justice- ship. During the eight years which have elapsed since Lord Hewart’s appointment as L.C.J., he had, he declared, observed the coming and going of no less than five Lord Chancellors. Afser enumerating, in two words each, the outstanding qualities of my Lords Birk- enhead, Cave, Haldane, and Hailsham, he referred to the “ sublime composure ” of

only welcome words of commendation but, far better, criticisms and useful hints in the art of advocacy.

He was born in the village of Moreton in Gloucestershire, on October 26, 1866 ; was educated at Lancing College in Sussex, and at Jesus College, Oxford, where he held a scholarship ; did well in schools ; and took the B.A. and M.A. degrees. After an examination believed by Oxford men to be the most difficult test of legal knowledge in the world, he won the degree of B.C.L. In 1892 he was called to the Bar at the Middle Temple; joined the South Wales Circuit and before long acquired a large practice,

chiefly in Workmen’s Com- pensation cases. In 1909, sixteen years after his call, he took silk, and from that time he was in very substantial practice, a large part of this work consisting, as before, of Workmen’s Com- pensation cases. He usually appeared on behalf of the injured trade unionist. His success was remarkable; and no man of his time had so great a knowledge of the law of Workmen’s Compen- sation or so much skill in the use of his knowledge of advocacy. He thus became in the estimation of the Labour people a man greatly admired and trusted, long before he became a Judge and many years before he was appointed Chairman of the Coal Min- ing Commission in 1919. The “ Sankey, Report,” in which he and the majority of his colleagues strongly recommended the national- ization of the Coal Mining Industry, staggered the members of the Coalition Government, and raised his The Rt. Hon. Viscount Sankey of Moreton.

Lord Sankey, and ob- 1 reputation with Labour to such a pitch that his in- served that he was threatened by one danger only, arising from the fact that he had no enemies and that, all men spoke well of him.

This saying was, and continues to be, true. Lord Sankey is a man of sublime composure, imperturb- ably serene. His temperament may be read in his eyes and his face, which have always the suggestion of a smile of tolerance and understanding. During his whole life he has never pushed other men aside in the race nor has he ever played the game of life unfairly or unscrupulously. Yet he has reached the summit of achievement in his own profession, and it is generally believed that the best for him is yet to be. To the known and the unknown he is equally kind. In early days at the Bar, when the writer had for the first time conducted a case before Sankey, J., he received a letter from the Judge containing not

elusion in any Labour Government of the future was obviously a matter for decision by his own will and choice.

Yet it is quite certain that Sir John Sankey had no such end in view and that his opinion on the coal mining question was the inference drawn by a fair, unprejudiced and judicial mind from the facts in evidence. A Labour Government was not then regarded as more than a very remote possibility.

During the progress and rise of Lord Sankey it is remarkable that he was never active in politics. He never issued an election address, and never, until he became Lord Chancellor, spoke on a political platform. So far as his political views were known he was understood to be a Conservative, as he was undoubtedly a strong Churchman. Throughout his career and up to the present time his advancement has had the warm

March 19, 1935 New Zealand Law Journal. --

approval of the Established Church. It is understood that before he was elevated to the Court of Appeal in 1928 the English Archbishops had made it plain that his promotion would in their view be a good thing ; of a sweet-smelling savour to the faithful of the Church Established. As for the Church of Wales, the Arch- bishop thereof became almost heretical in his praise and joy, when Sir John Sankey was made Chancellor in 1929. He declared that Sir John was the “ Architect, Builder, and Inspirer of the Church of Wales.”

Lord Sankey himself has always been modest regarding his achievements and the means whereby he rose to his present position of eminence. A critical stage in his career was when he was appointed Judge in 1914. After the event he was entertained to dinner by the members of the South Wales Circuit ; and he confided to them that his appointment was really “ an accident arising out of and in the course of his employment.” The aptness of this citation from the Workmen’s Compen- sation Acts was fully appreciated by many if not by all of those who heard it. The truth was that the vacant Judgeship had been offered to Mr. Lowe ; that Mr. Lowe had accepted it ; but, being M.P. for Norwich and the seat far from safe, the Government party would not allow him to accept the vacancy and so render it necessary for them to fight a by-election of doubtful issue. Thus Mr. Lowe was sacrificed in the interests of the party. Mr. Sankey had, not long before, made a great impression on the House of Lords and the reign- ing Chancellor, by his amanmg knowledge of the Work- men’s Compensation Acts and his helpfulness in assisting the Lords to reach a decision under an Act of which they knew very little, and Mr. Sankey, without offence, knew much. And thus it came about that when Mr. Lowe was unable to take the Judgeship it was given to Mr. Sankey.

As a Judge, whether in the King’s Bench, the Court of Appeal, the House of Lords, or the Judicial Committee of the Privy Council, he has been excellent. He is not one of the very great lawyers and has never pretended to be, But he is a sound lawyer ; has acquired his knowledge patiently and with industry ; and he has the rare gift of quickly discovering the material points in any case which comes before him. His industry and his temperament may be judged from his practice and habit in student days. He is a great walker. On his long walks he wished to improve his knowledge of law and the story is that he tore his text-books into a number of sections suitable for transport ; and he would carry and read his portion as he went on his way. He would smoke many-too many-cigarettes ; and when he realized that this was bad for him he gave up smoking and took to chocolates which he consumed inadvert- ently in such quantities, while his mind was engaged in legal problems, that he was compelled after a while to renounce the sweetmeats also.

Despite Lord Sankey’s sublime composure and the absence of the explosive qualities which are supposed to be part of a reformer’s equipment, it is now almost certain that he will go down in history as one of the few reforming Lord Chancellors. Already he is responsible for the New Procedure Courts which are functioning with speed, economy, and success. And there is a committee, appointed by him under the Chair- manship of Lord Hanworth, whose duty it is to consider and report on what further reforms, great and small, should be made to reduce or to abolish the evils of expense, vexation, and delay. The general opinion is that Lord Sankey will succeed and that his law reforms will be far-reaching and beneficent.

Company Law. Letters of Renunciation.

In none of the recently-published text-books is there any treatment of the not unimportant topic of letters of renunciation. The following notes are intended to help readers of the NEW ZEALAND LAW Joun~ti in filling this gap.

I.-PURPOSE AND ADVANTAGES. 1. On the flotation of a new company, when shares

have been allotted but not yet issued, the device of a letter of renunciation, whereby the allottee retires in favour of his nominee, in effect enables shares to be bought and sold on the market, and title to be given, prior to the actual issue of scrip.

2. Upon an issue of fresh capital, where shares are offered in the first place to members, the right to take up additional shares may be of pecuniary value. Never- theless, a shareholder may be without the funds to avail himself directly of the benefit ; this is particularly the case with shares held by a trust where the balance of funds (if any) is already completely invested. Again, the terms of the trust may forbid the further investment: Re Anson’s Settlement, Lovelace v. Anson, [1907] 2 Ch. 424. Nevertheless, the trustees must make what they can for the trust estate out of the right to take up shares : Briggs v. Massey, (1881) 51 L. J. Ch. 447. Renunciation machinery enables them readily to do so ; in fact, it is stated that the London Stock Exchange insists upon the providing of letters of renunciation upon issues of new capital : Stiebel on Company Law, 3rd Ed., p. 253.

3. Under British law certainly, and perhaps under New Zealand law, this procedure effects a substantial saving in stamp duty compared with that of delaying completion of a sale until scrip has been issued and a transfer of shares can be executed and registered.

II.-FORMS.

4. Passage in Allotment Letter Offering Right of Renunciation in Favour qf Nominee :

You are at liberty to renounce this allotment in favour of any other person provided that the accompanying letter of renunciation is filled up and signed by both you and your nominee and delivered at the office of the company not later than . If you desire to renounce part only of the shares allotted, divided allotment letters will be issued at any time not later than the above-mentioned date, on application in that behalf accompanied by surrender of the present allotment letter.

5. Letter of Renunciation. To the Directors of the Gentlemen,-

Company, Limited.

I hereby renounce in favour of my right to shares allotted to me as stated in letter of allotment sent by you to me under date and request you to issue the said shares to him and register him as the owner thereof.

Dated . Signed . I hereby agree to accept the shares referred to

above and author&e you to register me as the holder thereof upon the terms contained in your memorandum of association and articles of association.

Dated . Signed .

6. Letter of Renunciation on Issue of New Capital.- phe last form may be used, altering “ shares allotted ;o me ” to “ shares offered to me,” and “ letter of allot- nent ” to “ letter of advice.”

New Zealand Law Journal. March 19, 1935

7. Passage in Allotment Letter Resenting Directors’ Right to Refuse Sominee (for use in connection with semi-private companies where restrictions are imposed on the right to transfer shares).

i s an offer ; and some subsequent action by the company i s the acceptance. Russell, L.J., said :

Subject to the Directors’ discretion (which is hereby reserved) to refuse to accept a nominee in like manner and to the same extent as they are empowered under the company’s articles of association to refuse to register a transfer of shares, you are at liberty to renounce, etc., continuing the form set out in para. 4 above.

8. Some forms of renunciation are so worded as to invite the allottee to renounce a part only of the holding of shares allotted (or offered) to him. As the allotment letter is in effect the interim title to the shares, and as whoever wants the scrip must, under the regular practice, be in a position to surrender the allotment letter in exchange for the scrip, this course is undesirable. The nominee (purchaser) should insist on holding the allotment letter when he pays his purchase-money. The proper course is to provide for “ splitting ” the allotment by the substitution of divided allotment letters, as the offer in para. 4 above provides. It is understood that this also is a London Stock Enchange requirement.

9. For other forms, see In re Pool Shipping Co., [1929] 1 Ch. 257 (a case which by the way is an interesting instance of a company without directors) ; Collins v. Associated Greyhound Racecourses Ltd., [1930] 1 Ch. 1, 6, 7 ; Stiebel, pp. 557, 570 ; Palmer, 14th Ed., 948, 950, 952.

III.-GENERAL CONSIDERATIONS. 1

,

10. The issue of a letter of renunciation in common form apparently amounts to an offer by the company to accept a substituted shareholder, and when duly completed by acceptance binds the company, which accordingly is not entitled to decline to register the nominee under the authority of an article enabling the directors to refuse to register transfers of shares : Pool case (supa). It is of course possible to frame an article extending the directors’ discretion to the case of letters of renunciation : Gore-Browne, 38th Ed., 212. This is unusual. Presumably the same end may be attained by a suitable term in the allotment letter ; see form in para. 7 above.

1 11. A nominee is apparently not entitled to have

his name removed from the register for misrepresentation in a prospectus, even in circumstances justifying rectification at the suit of the original allottee : Collins’s case (supra). He is not a party to the original contract for allotment made on the basis of the prospectus ; and any direct contract that there may be between the nominee and the company by virtue of which he becomes a member is not referable to the prospectus.

12. Exactly what the contract may be between the nominee and the company has not as yet been judicially declared. From the Pool case it would seem that the nominee enj oys enforceable rights, necessarily contractual in nature, as soon as the letter of renunciation, duly completed, is communicated to the company ; and this would be the most desirable position from the Stock Exchange point of view, or that of a nominee purchaser. In Collins’s case, however, Lawrence, L.J., suggested that it might be that no contractual relationship arose till the nominee’s name was placed on the register ; if that be so, the terms of the allotment letter and the issue of a renunciation form are a mere invitation to treat ; the communication of the filled-in letter of renunciation

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“In my opinion the plaintiff [nominee] became a shareholder . . . not by reason of any contract between himself and the company, but by reason of a contract between [the allottee] and the company.”

On the former of these two views the nominee’s position s precarious because, contrary to what was inferentially leld in the Pool case, there is no enforceable contract t& all. On the latter it is still unsatisfactory because laving no direct contract he must presumably enforce lis rights through his vendor instead of by direct action.

IV.-STAMP DUTY.

13. Under British law letters of allotment and letters If renunciation or documents having the same effect bre coupled together and expressly assessed for duty Lt 6d., or where the nominal amount is less than $5, ld. Any other release or renunciation of property is assessed with ad valorem duty according to the circum- rtances as on a sale, mortgage, or gift of property, or otherwise.

14. The New Zealand stamp law makes no express orovision. As is pointed out in Stiebel, p. 253, what is sold is in strictness not shares, but the right to call For shares. The duty attracted must depend on the view which, in the conflicting state of the English authorities, the New Zealand Courts take of the trans- sction. The documents may spell out an agreement not otherwise charged, assessable under s. 154 (4) of the Stamp Duties Act, 1923, with a duty of 3s. on any one of them. If there is an agreement for the sale of property, ad valorem duty may be attracted under s. 88. In that section agreements for the sale of shares are excluded : if the distinction drawn above between a sale of shares and a sale of the right to call for shares is valid for the purposes of s. 88, the exclusion may not apply. In Collins’s case, Lord Hanworth suggested the arrangement might be a novation. Every novation imports a release of a previously-bound party, and the subject-matter of the release is a chose in action which the meaning of “ property ” in the Stamp Duties Act is wide enough to include : cf. New Era Printers and Publishers v. Commissioner of Stamp Duties, [1927] N.Z.L.R. 438.

But it has never been suggested that an agreement *mounting to a novation attracts ad valorem conveyance luty. It is not immaterial to note that although a letter of allotment could be construed as an acceptance :reating an agreement, it is by common consent treated ts being exempt from duty ; and a letter of renunciation may well be found to be in the same case.

A Currency Question.-A New Zealand firm of solicitors recently received from its agents in the United States a letter which said : “ We have to advise that the loan is proceeding in the regular way, and there will be available approximately $3,600.00, when this loan is completed, which would equal approximately 900 Ibs. in New Zealand funds. . . This loan was held up for repairs, but it is now released and will go ahead in the usual way.”

March 19, 1935 New Zealand Law Journal 73

The Tawa Flat Compensation Case. By C. STANLEY BROWN, LL.B.

The Tawa Flat tunnel and railway scheme was authorised in 1924. As is the case with many large public works, the authorisation and progress of construction had the effect of enhancing the value of land in the neighbourhood immediately effected. In 1931 certain land at Tawa Flat itself, which had shared in this enhancement, was taken and entered upon under the Public Works Act, 1928, for the purposes of the new railway, and the Compensation Court was called on to assess the compensation to be paid. The question then arose, On what basis should such compensation be arrived at ‘2

Section 80 of the Public Works Act provides as follows :

“The value of land taken or injuriously affected shall be assessed for the purpose of ascertaining the amount of compensation, if any, at its value at the time when it was first entered upon for the purpose of constructing or carrying out a public work thereon.”

Read by itself, this seems clear enough. But certain English authorities lay down a rule which was thus expressed by Eve, J., in South Eastern Railway Co. v. London County Council, [1915] 2 Ch. 252, a case of com- pulsory purchase-viz., that in assessing compensation for land taken :

“ Increase in value consequent on the execution of the under- taking for or in connection with which the purchase is made must be disregarded.”

Ostler, J., in his judgment in the case now under review expresses the rule thus :

“ No principle is more firmly established under the English statute than the principle that, in ascertaining the value of land taken for a public work, the value added to that land either by the execution of the work or by the prospect of its . . execution-I.e., by the scheme of the work, is not to be included.”

This rule will be referred to hereafter as “ the English rule,” though for reasons which will appear later this term is more convenient than correct.

In the Compensation Court, Blair, J., found the actual value of the land at the date of entry to be %2,100. But it was contended for the Minister of Public Works that the value of the land for purposes of compensation must be determined in accordance with the English rule, and that accordingly the enhancement in value due to the deviation scheme could not be taken into account While tentatively ruling against this contention, on th< ground that the “ value ” referred to in s. 80 must bc taken to mean “ value howsoever caused,” Blair, J. determined that if it were applied the value of the lane would be only ;E865 ; and he stated a case to the Supreme Court, to determine the correct basis of computation The question being of considerable importance, the cast was heard in the Full Court : Tawa Central, Ltd. v Minister of Public Works, [1934] N.Z.L.R. 841, G.L.R 643. Unfortunately, from the point of view of authority the Court was evenly divided, Myers, C.J., and Ostler, J. holding that the English rule should be deemed to appl; in New Zealand, and Reed and Johnston, JJ., that 1 should not. Blair, J., was therefore left to decide the question in the Compensation Court. Presumably hc decided it in accordance with tis own tentative opinion and the claimant received its $2,100. The contentiol of this article is that, if so, the result was correct ; ant

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s purpose is to put forward some considerations that D not seem to have been taken into account in the ldgments supporting the English rule, or indeed, xriously enough, to some extent in those repelling it.

It is submitted, then, that the English rule cannot be :ad into the New Zealand statute, because : (a) it is bsolete ; and (b) its operation would cause injustice and Lequality.

In view of the fact that all four judgments speak of le rule as current English law, as in the above citation *om the judgment of Ostler, J., the contention that it

obsolete seems no doubt a bold one. It should be orne in mind, however, that the whole subject-matter I compensation, both in England and in New Zealand, I purely the creation of statute :

“ The right to receive compensation for land taken or injuriously affected depends on the provisions of the statute or order which authorises the taking or injurious affection, and upon the terms of such statute or order will also depend the basis upon which the compensation is to be assessed. If the statute confers no right to compensation the person who suffers it is not entitled to any ” : 6 Halsbury’s Laws of England, 2nd Ed., p. 37.

In England, up to 1919, there was no statutory code If principles governing the assessment of compensation, ‘he Lands Clauses Consolidation Act, 1845, under which ompensation was awarded, contained no specific rules o determine how the amount should be fixed ; hence t was open to the Courts under that -4ct to work out heir own principles of valuation. But, in 1919, the lcquisition of Land (Assessment of Compensation) 1ct was passed, for the purpose of laying down an buthoritative code on the subject. By 8. 7 (1) it was Directed that all other Acts relating to the subject- natter of that Act should, so far as inconsistent there- vith, cease to have any effect.

The cardinal principle to be applied under this new statutory code of “ rules for assessing compensation ” s set out in s. 2, rule 2, as follows :

“ The value of land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise : Pro- vided always that the arbitrator shall be entitled to consider all returns and assessments of capital value for taxation made or acquiesced in by the claimant.”

It seems obvious that the clear-cut adoption of the “ market value ” principle must definitely override, and wipe out, any rule such as that quoted above from the South Eastern Railway case, unless the latter were expressly saved by the subsequent provisions of s. 2 ; but it is not. There is no rule authorising the deduction from market value of enhancement clue to the work. When the Acquisition of Land (Assessment of Compensa- tion) Act, 1919, overrode the Lands Clauses Consolida- tion Act, 1845, so far as inconsistent with the first- named Act, it must have overridden also all case-law founded on the Act of 1845, so far as inconsistent with the Act of 1919 ; but all the English cases cited in all the judgments were decided before 1919. If the foregoing argument is sound, therefore, these cases are no longer authorities in England ; the principle enunci- ated above as “ the English rule ” ceased to exist in England in 1919 ; and the Tawa Flat case, if heard in an English Court to-day, would be decided without hesitation in favour of the claimant, by the simple application of rule 2 of s. 2 quoted above. (One may assume that the “ value howsoever caused ” fixed by Blair, J., would be practically, if not exactly, the same as the market value prescribed in the English Act.) It


would really seem, therefore, that the Full Court allowed itself to be needlessly vexed by the ghost of a discarded principle. Why apply to the interpretation of a NeTc Zealand statute passed in 1928 an element of English law that ceased to exist in 1919 P

But, it may be said, if the rule in question originated in certain language or provisions of the English Act of 1845, and the Public Works Act of 1908 and 1928 use the same language or contain the same provisions, then it does not matter whether the rule has now been rendered obsolete in England by a later statute : its applicability to New Zealand would not be affected. Granted. But the surprising fact is that it seems impossible to state with confidence from what particular provision of the Lands Clauses Consolidation Act, 1845, the rule originated. We know that it must have derived its existence from that Act, or from some particular portion of it ; for reasons given above, it cannot be regarded as a rule of common law. But as Johnston, J., in effect points out, there .does not appear to be any reported case that could be described as a “ leading case ” on the topic, setting out the precise point in the statute from which the Courts commenced, and the line of argument that they followed, in arriving at the rule. If guesswork were permissible on the matter, it seems most likely that it originated as a rule of practice adopted by valuers and arbitrators, and after- wards sanctioned by the Courts. Without attempting any detailed comparison between the Lands Clauses Consolidation Act, 1845, and the Public Works Act, 1928, it may at the least be fairly said that while there are substantial resemblances, there are also substantial differences between the two Acts. Certainly they are not in ipsissima verba, either as a whole or in respect of any relevant section. Now where, as here, you have an English and a New Zealand statute havmg some elements of identity and some of difference, and it is sought to read into the New Zealand statute a rule of case law under the English statute, it seems reasonable that the onus should be on the party seeking to do so to show that such rule is based on elements of identity, not on the party opposing the importation of the rule, to show that it is based on elements of difference. Especially should this be the case where, as here, the precise nexus between the rule and the statute is in any way uncertain. If this view is correct, it certainly cannot be said that such onus has been discharged by the Crown. In these circumstances it would seem dangerous to assume that the reasons for the rule are such that it could or should be read into New Zealand law to-day.

The acquisition of Land (Assessment of Compensation) Act, 1919, is not even mentioned in any of the judgments in the Tawa Flat case, though the report shows that it was referred to in argument. At all events the whole question was discussed in all the judgments as it might have been (say) in 1918. Looking at it from this point of view, it is interesting to note that as far back as 1910 the Legislature itself gave a significant indication that it did not regard the English rule as being implied under the Public Works Act of 1908, the compensation provisions of which are in the same language as in the present Act of 1928. In authorising one particular work-the improvement of the Waihou and Ohinemuri Rivers-it was desired to exclude enhancement from the measure of compensation ; and to do so it was deemed necessary to make special provision by way of exception from the general law. The Waihou and Ohinemuri Rivers Improvement Act, 1910,

which is a public statute, though local (vide Handley v. Minister of Public Works, (1914) 16 G.L.R. 683), provides for the taking of land under the Public Works Act 1908. Section 11 (1) makes compensation payable therefor ; and subs. (2) continues-

“ In assessing such compensation the Court shall take into account in reduction or mitigation of the claim anv benefit which has accrued or is likely to accrue to the &&ant by reason of the constrtiction of any work authorised by this Act.”

Benefit which has accrued is not betterment within s. 79 of the present Act ; the subject there dealt with is “ increase of value which is likely to be caused ” by the public work. The accrued benefit here directed to be deducted from compensation in this one instance would include the enhancement of value already attach- ing to the land from the work. Hence the principle expressed in this subsection is that contended for by the Crown in the Tawa Flat case. It seems, therefore, that the Legislature thought that such a principle would not apply to compensation in New Zealand without special provision in a particular case-in other words, that it was not implied in the Public Works Act, 1908.

It is claimed that to apply the rule in question under New Zealand conditions would create inequality and injustice. This again seems a somewhat bold contention, seeing that one at least of the judgments upholding the Crown’s point of view quotes its just&e in support.

“ Why [asks Ostler, J.] should the State or a local authority have to pay a private owner the value which its scheme and the expenditure of its public money has added to the land P Surely justice is done if he gets full value for his land without allowing him in addition to make a profit at the expense of the whole people 01 the people of a city.”

Few people will attempt to disagree with the view here expressed, that the private owner should not make a profit out of compensation moneys ; but does he do so if he only gets its actual value at the time of taking ‘2 Is not the reverse the case-that if anything less is paid he suffers a loss ? Whether we like it or not, practically every major public work creates unearned increment in the value of neighbouring land, often affecting a very large area. Sociologically, this may be wrong ; perhaps the State should impose a tax on such land, equivalent to the benefit received. ; but, if so, justice would require that all the owners who are benefited should pay this tax, not merely the few whose land is wanted for the scheme. In any case, it is submitted, such considerations are beyond the perspective of compensation law, which from its very nature can concern itself, only with economic facts. On the face of it, if you pay a man &.865 for property whose actual value is ;E2,100, can he be said to get full value for his land ? or if you pay him 22,100, can he be said lo have made a profit out of the transaction ? Again, if you are to disallow enhancement due to one public work, why allow the enhancement due to others, whether carried out previously or simultaneously ? Tawa Flat already has a railway, constructed or bought by public money, which is responsible for a considerable part of the value of 2865 ; yet it is not suggested that the enhancement due to it should be deducted. Further, what of the man who, having received his $865, desires to use it in the fairest possible way in which compensation moneys can be used-viz., in buying for himself a similar piece of land of the same size in the same district Z Can he do this with his &865 ? What, again, would be the position of a claimant who had bought his land just before it was taken, paying a price that would necessarily include the accrued enhancement 1

March 19, 1935 New Zealand

Could he go back to his vendor and claim a refund of the difference deducted by the State for unearned increment 1 Or could the measure of compensation be made to vary according to the position of the claimant in that respect Z

But the worst feature about the English rule, if applied to New Zealand, is that it would make the measure of compensation dependent on the purpose for which the land might be taken. An excellent example of this may be worked out from the Tawa Flat case itself. Suppose that alongside the piece of land dealt with in that case there were another st)rip of land of similar area and value held by another owner, and the latter piece were taken at the same time for a non-arterial road. The English rule is applied to the land taken for the railway, consequently the compensation is gS65. But the road adds nothing perceptible to the value of the district in general or of that particular

; consequently the rule does not come into play, EFi”the owner of the latter piece pockets his g2,lOO. Can the law, unless constrained by the plainest statutory language, lend itself to such a result Z

There is a comforting and characteristic saying of Williams, J., that after all compensation law is mainly common sense. Suppose a Public Works Engineer were to go to Farmer Jones one day and say, “ I’m sorry, Mr. Jones, but I’ve got to take your land for a railway. But don’t you worry-you’ll get full compensation, taking into account the value of your land at the time I enter on it.” Later on the Engineer coznes to him and says, “ Well, Mr. Jones, the date of entry on your land was 1st December, 1934. The act.ual value of your land at that date was sE2,000, but %l,OOO of that was due to my railway ; so here’s a cheque for your compensation, gl,OOO.” Suppose (and this sup- position is not difficult) that Jones protests. The Engineer replies, “ Yes, I know you’ve had to pay rates and taxes on a valuation of $2,000. I know you could have got $2,000 for your land if you had sold it on the open market. I know it will cost you 22,000 to buv another similar bit in the locality. I know that if I had taken your land for a road or a school you would have got &2,000. I know that in Englard at the present time the Courts would give you 6E2,OOO. But English Judges, working under an old statute that is partly like and partly unlike ours, arrived at a rule, which was revoked bv legislation in England fifteen years ago, under * which your compensation would be only gl,OOO ; so take your ~1,000.” Could not Jones be pardoned if he done to him ?

should fail to feel that justice had been

The training of English lawyers is essentially a training in cautiousness and conservatism. Its basis is the application of “ the judicial experience of the past to the judicial questions of the present.” Its objective is to ensure “ a continuity in traditional modes of pro- fessional thought and in traditional rules of art, and these modes of thought and rules of art are a powerful restraining force when the materials of a legal system are reshaping and applying to new uses to meet new wants or old forms of new wants.”

-PROFESSOR HUGHES PARRY 011 Economic Theories of English Case Law.

Law Journal.

New Zealand Conveyancing. By S. I. GOODALL, LL.M.

Particulars and Conditions of Sale of first certain Free- hold and Leasehold Farm Property and secondly certain Farm Stock and Chattels to be offered for Sale by Anc- tion by duly Licensed Auctioneers on the Property fronting Road at on the day of 19 at o’clock in the

noon at the request of (in the subjoined Conditions and Memorandum of Contract called “the

Vendor “). PARTICULARS.

LOT ONE : FREEHOLD AND LEASEHOLD PROPERTY. First : All that an estate in fee-simple in etc. Secondly : All that an estate of leasehold by virtue

of etc. in etc. LOT Two : FARM STOCK AND CHATTELS.

[Parcels.] CONDITIONS.

1. The property will be offered for sale in the follow - ing manner :

(1) Lots one and two shall be offered together subject to a reserve price and should such reserve not be reached then

(2) Lot one shall be offered subject to a reserve price and the stock and chattels comprised in lot two shall be offered without reserve either separately or in parcels at the discretion of the Vendor and/or the Auctioneer.

2. Subject to the provisions of clause 1 hereof the highest bidder for all the property above described and/or each lot thereof or for any of the stock or chattels comprised in lot two and sold separately or in parcels as the case may be shall be the Purchaser thereof respectively. If any dispute shall arise respecting any bidding the property or lot stock chattel or parcel shall be put up again at the last previous undisputed bidding.

3. The Vendor reserves the right for the Auctioneer to refuse any bid. No person shall advance at any bidding less than such a sum as may from time to time be named by the Vendor or the Auctioneer and no bidding shall be retracted.

4. The Vendor reserves the right : (1) To bid generally by himself or his agent or the

Auctioneer. (2) To withdraw the property or any lot or lots there-

of from sale before the same is actually sold without declaring the reserve price.

5. In the event of lots one and two being sold to one individual purchaser the sales shall be deemed to be comprised in one contract of sale with such purchaser but in the event of the stock and chattels comprised in lot two being sold separately or in parcels each sale shall be a separate contract with each respective purchaser.

6. As to lot two the Purchaser thereof or of any of the stock chattels and parcels therein comprised as the case may be shall immeoiately on the fall of the hammer or other customary acknowledgment of the sale by the Auctioneer pay to the Auctioneer in cash the full purchase price for the said lot or the said stock or chattels purchased by him and take delivery of his or their lot stock chattels or parcels. Immediately upon the fall of the hammer the stock chattels and parcels comprised in the said lot and every part thereof respectively shall


be at the sole and exclusive risk of the Purchaser or Purchasers thereof. Should the said lot two be sold as one undivided lot the Purchaser thereof shall then and there sign the subjoined Agreement in respect thereof and it is hereby declared that should the stock and chattels comprised in the said lot be sold separately or in parcels each Purchaser shall be bound by these Conditions notwithstanding that he may not sign the said Agreement.

7. As to lot one the Purchaser thereof shall immediately upon the fall of the hammer pay to the Auctioneer in cash a deposit of ZX per centum of his purchase price in part payment of the purchase-money and shall then and there sign the subjoined Memorandum of Agreement to complete his purchase. Such purchaser shall pay in addition to the above deposit the amount payable for stamp duty on each Agreement in respect of his purchase to enable the Vendor duly to stamp the same.

8. The sale of the leasehold portion of the property comprised in lot one is subject to the consent of the of the being given thereto. The Vendor and Purchaser will forthwith sign and make all such applications and other documents take all such steps and pay all such fees according to the usual in- cidence as shall be necessary or expedient for the pro- curing of such consent and if required so to do shall appear personally before the in support of the said application and use every endeavour to procure such consent. Should such consent be refused the Purchaser shall be entitled to a reduction in his purchase-money of the sum of ;E which shall for the purposes of these presents be deemed to be the full value of the said leasehold portion of the property but he shall have no other claim whatsoever against the Vendor in respect of the non-completion of the sale of the said leasehold interest.

9. The Vendor shall not in any case be compellable to execute any transfer of the lands comprised in the said lot one nor shall the Purchaser be entitled to call for his title thereto or to any part thereof until the consent of the of the has been given or refused to the sale of the leasehold portion of the said property. The purchase shall be completed and the balance of purchase-money paid within seven days after notice of such consent has been given by the Vendor to the Purchaser or his solicitors (being in any case not earlier than the

day of 19 ). 10. Subject to the provisions of the last-preceding

clause hereof the purchase of lot one shall be completed and the balance of the purchase-money paid to the Vendor’s solicitors Messrs. at on the

day of 19 (hereinafter called “ the day for completion “) and if from any cause whatever save those mentioned in the last-preceding clause hereof or the wilful default of the Vendor the said purchase shall not be completed on the day for completion the unpaid purchase-money shall carry interest at the rate of & per centum per annum from that day until actual completion.

11. The Purchaser of lot one having completed his purchase shall be let into possession of the said lands and the receipts and profits therefrom on or as from the day of actual settlement PROVIDED that if the Pur- chaser shall desire to enter into possession before the Vendor is in a position to give title to the said leasehold lands he shall be entitled to do so upon paying to the Vendor the balance of purchase-money and all other moneys owing by him and in such case the Vendor will hold such balance of purchase-money in trust until final completion,

12. All current rates taxes assessmen& and other outgoings payable in respect of the property shall be apportioned as at the date upon which possession is given or the day for completion whichever shall be the earlier.

13. The purchaser shall forthwith insure all buildings erected on the said lands in the name of the Vendor in their full insurable value and pending completion the Vendor shall subject to the consent of the insurers hold such insurances in trust for the Purchaser.

14. The property and each lot thereof is believed and shall be taken to be correctly described as to quantity quality or otherwise and no error misstatement or mis- description whatever whether in the Particulars or in these Conditions or any published advertisement of sale shall annul the sale thereof or any part or parts thereof or entitle either side to compensation.

15. The Vendor in respect of lot two will offer at the sale such of the above-described stock and chattels only as can be found andiare available at the time and place of the sale and each Purchaser whether of any of the said lots one and two or any part thereof respectively shall be deemed to have inspected the subject- matter of his purchase and no action of any kind or claim for compensation shall lie against the Vendor nor shall any Purchaser be entitled to rescind or avoid his contract by reason that any stock chattel article parcel or property purchased by him does not correspond with the description thereof or of any similar stock chattel article or property set out in the above Par- ticulars or by reason that any item of stock chattel or property so set out is in fact omitted from the sale.

16. The Vendor does not warrant the accuracy of any matter or fact herein or in the Particulars or in the advertisement of sale or any statement by the Auc- tioneer contained and each Purchaser must verify the same to his own satisfaction and enter into his contract in reliance solely upon his own judgment and not upon any warranty representation or condition made by the Vendor or any agent of the Vendor.

17. The Vendor shall not be liable to point out any boundaries or survey pegs on the property comprised in lot one or any part thereof. The Purchaser shall be deemed to have inspected the property and to have full knowledge thereof and of every part thereof and shall make no requisition in respect thereof.

18. The title to the said lands is registered under the Land Transfer Act 1915 and the Purchaser shall not be entitled to make any requisition in respect of the title thereto. The said Lease may be inspected at prior to the time of sale and the Purchaser shall be deemed to purchase the leasehold portion of the property with full knowledge of all the terms and conditions contained and implied in the said Lease.

19. Upon payment in manner aforesaid of the said balance of purchase-money and all other moneys (if any) payable hereunder and performance by the Purchaser of lot one of his other obligations hereunder the Vendor and all other necessary parties (if any) will subject to the provisions hereinbefore contained execute a valid transfer or other assurance to the Purchaser of the lands comprised in the said lot one such transfer to be prepared by and at the expense of the Purchaser and to be left at the offices of the Vendor’s solicitors at least ten days prior to the day for completion and no stipula- tion or term hereof shall in favour of the Purchaser merge and/or be extinguished in any such transfer or other assurance but shall remain in full force and effect.

20. If default or breach shall be made by any Pur- chaser in performance or fulfilment of the above Con-

March 19, 1935 New Zealand Law Journal. 77

ditions or in payment, of any moneys payable hereunder (the times for such performance fulfilment or ray- ment fixed by these uonditions being both at law and in equity strictly of the essence of the contract) then and as often as the same shall happen it shall be lawful for the Vendor in addition to and without prejudice to any other remedies he may have-

(1) To affirm this contract and sue the Purchaser thereon either for specific performance (in which case the whole of the unpaid balance of purchase- money owing hereunder shall immediately become due and payable) or for damages for breach of the contract ; or

(2) To rescind the contract of sale and thereupon all moneys theretofore paid by the Purchaser shall be forfeited to the Vendor as liquidated damages ; or

(3) To withhold or take possession of the property stock or chattels the subject-matter of the sale without making any formal demand ; or

(4) Without giving notice to the Purchaser or tendering a transfer assignment or other assurance to the Purchaser to resell the property stock and chattels sold to such Purchaser either by public auction or private contract subject to such conditions as the Vendor may think fit and any deficiency in price and all expenses attending the re-sale or any attempted re-sale of the property stock or chattels shall be recover- able by the Vendor from the Purchaser as and for liquidated damages.

MEMORANDUM OF CONTRACT. At the sale by auction this day of the property and lots described in the above Particulars WE the under- signed were severally the highest bidders for and were declared the Purchasers of the respective lots of property at the prices set opposite our respective names in the Schedule hereunder written and we have paid into the hands of the ,4uctioneers as agents for the Vendor in the case of lot one a sum equal to per centum of the purchase-money by way of deposit and in part payment of the purchase-money therefor and the further sum appropriate for the purposes of stamp duty and in the case of lot two the full amount of our purchase- money AND we severally hereby agree and acknowledge in the case of purchase of lot two that we have received delivery of all stock and/or chattels above described in full performance by the Vendor of his obligations under the contract of sale and in case of lot one the Purchaser severally agrees to complete the purchase of his lot according to and in pursuance of the above condition AND as agents for the Vendor the Auctioneers DO HEREBY CONFIRM the sale of the respective lots of the property to the several Purchasers under and subject to the above Conditions and DO HEREBY ACKNOWLEDGE the receipt of the said purchase and/or deposit moneys and stamp duties respectively.

As WITNESS our hands this day of

One thousand nine hundred and . Auctioneer.

b

(01 Percel)

‘yzk,, Deposit Duties Stamp Name Purchaser's Occupation Signature

and Address -- --- ___---

----

----

Every Judge His Own Reporter. During the course of a lawsuit which has been agitating

America, the Judge who tried the case is reported to have acted in a way which seems somewhat odd to those whose experience of the conduct of legal proceedings is limited to the sedate transactions in the Strand, says a contributor to the Law Journal (London). Midway through the plaintiff’s case, he decided to conduct the trial in camera, but so that the public should not be wholly deprived of the sensational reading matter which the litigation has so far provided, he constituted himself an unofficial reporter, and, by means of con- versation with Press representatives at the end of each day’s sittings, contrived to keep them au fait with the course of the action.

It is a novel departure in the long and chequered history of judicial discretion, and those who earn their bread by the practice of the art of law reporting for the newspapers would no doubt be distinctly pained if it were to be widely imitated ; but on consideration it has much to recommend it. Why should not a Judge give his own views as to the proceedings before him Z And, since he is, after all, in the best position to see everything, and since, ex hypothesi, he and he alone in Court is a trained judge of law and fact, why should anyone else P It may be argued that the adoption of such a practice would add somewhat to his burden. If so, a slight upward revision of judicial salaries would no doubt meet that difficulty. And there would be many compensations. In the all too frequent event of a ” breeze ” in Court, he would be able to give such an account of it as w0ula instantly and for all time put the offending practitioner in his place. Any untoward event that might have occurred during the hearing which ruffled his judicial dignity, or put his Lordship in anything but the best light could be discreetly passed over, or represented in such a way as to be quite in- nocuous. Those tiresome obiter dicta which, reproduced in the evening papers in leaded type and devoid of their context, have a habit of appearing so jejune and pointless, would never see the light of day ; w-hile, on the other hand, any jokes which were unfairly approp- riated by counsel during the day’s proceedings, could be refurnished and given new-minted to the world through .the medium of the interviewer.

It is an idle dream, of course. We shall never see the throngs of eager pressmen gathering at the Judge’s entrance, notebook in hand, to get the low down on the cause c&bre of the moment. But it would certainly add to the amenities of the daily papers if we could. Best of all, perhaps, would be the tripartite interviews of the Court of Appeal. Dissenting opinions would gain in pungency. ” Sir X.Y. spoke a mouthful this morning,” Lord Justice A. would observe. “ Well it seemed plumb nonsense to me,” would counter his brother B., “ and I told him so.” For one must assume that with their habitual versatility our Judges would quickly adopt the manners, as well as the customs, of their American brethren.

How far this method would adapt itself to, say, the proceedings of the Commercial Court, or some of the less exciting work of the Chancery Division, it is not easy to explain. But who wants to read about them, except lawyers Z And the newspapers, as anyone can tell by looking at them, are not intended for lawyers, but for the great sensation-seeking public.


Australian Notes. By WILFRED BLACKET, K.C.

Share Premiums and Bonuses.-Carreras Ltd. of Prahran, Victoria, found that the manufacture of cigarettes was such a profitable business that upon the issue of new shares it was able to do so at a premium that yielded f33,794 2s. Swaggering on this wealth the directors proposed to take 26,205 18s. from undivided profits and issue 800,000 new 1s. shares to ordinary shareholders as bonus in the proportion of four to one of the 1s. shares held by them. The ordinary shareholders greeted this practical proposal for a Happy New Year with three cheers and a tiger, so to speak, but Mr. E!.?T. Moore a preference shareholder followed the historic precedent of Abner Dean of Angela by raising a point of order as to the legality of the proceeding. His contention before the Victorian Supreme Court was that under the Victorian Companies Act of 1928 premiums could not be so applied, for s. 277 enacted that no dividends should be paid except out of profits, and s. 278 provided that where “ shares are issued at a premium the premium shall be carried to the credit of a reserve fund..” Just that ! As to s. 277 the Court was easily able to decide that the proposed distribution was not a dividend. As to s. 278 it was held that as the Legislature had not said what was to be done or what could not be done with the premiums after t,hey had been credited to the reserve fund the Court could not supply by conjecture the hiatus unfilled by a weary Parliament and so the distribution was held to be lawful. Abner Dean it will be remembered encountered “ a chunk of old red sandstone ” ; Mr. Moore merely endured the “ usual consequences.”

Resurrection of Dead Claims.-On p. 324, Vol. X, I mentioned the case of Mrs. Wahleberg, who benefitted by the order of Court under the T.F.M. Act although she had not seen her husband, the testator, for forty- five years before his death and had been living apart from him under a deed of separation which provided for the payment to her of $78 per annum. In a recent case in Sydney the widow, Mrs. Boulton, had separated from her husband twenty-five years before his death in accordance with a deed of separation by which she released him from all claims for future maintenance. In refusing her application for an order under the T.F.M. Act, Street, J., affirmed the law to be tha,t “ where a wife by agreement separated herself from her husband and undertook to make no further claim for maintenance, she could not, in the absence of any special facts, claim after his death from his estate that which during his lifetime she had bound herself not to claim from him personally,” which indeed seems to bc a rule of law well worthy of being affirmed.

Trade-union Tyranny.- Joseph Martin v. Western District Coal and Shale Miners’ Union heard at Sydney was a matter which involve1 great hardship to the plaintiff and disaster to the community was revealed. He and his two sons, men of competent skill and good character, had been working for some months at a small shale mine. Their employer was threatened with prosecution by the Union under the preference to unio:rists clause mdcr an award if be continued to employ them. They applied for admission to the Union and it was conceded that under s. 52 (1) of the

Industrial Arbitration Act they had fulfilled all conditions and had a statutory right to be admitted. How- ever, the Executive of the Union, asserting as a reason that a number of their members were out of employment, defied the Act and refused to admit Martin and his sons. He sued for damages and obtained a verdict for ;E115, but on appeal it was held that he had no remedy at common law ; that the only remedy against the Union for a breach of its duty to admit qualified persons to membership was the penalty that the Act enabled the Court to impose upon the law-breaking Union itself. Obviously this was a penalty that never could be imposed for no one would ever sue to enforce it as no one could benefit by doing so and therefore the Union will be able to provide its present members with a monopoly of employment in their occupation.

Further Mention.-In Grant v. The Australian Knit- ting Mills, a case which I have previously mentioned and in which the plaintiff had a verdict for $2,450 damages for disease caused as it was alleged by chemicals in garments manufactured by the defendant company, but lost it on the company’s appeal to the High Court, the Privy Council has now given leave to appeal. ,My previous comments will show that I should not be greatly astounded if the present appeal succeeds.

In Webber v. Hazelwood mentioned by me at p. 138, Vol. 10, the High Court sustained the verdict for g569 for damages caused by the defendant in burning off stubble on his land.

In the Railway Engineer’s case recently mentioned by me an award has at last been made after seven years hearing of the matter, but not altogether to the satisfaction of the Unionists who seem to think that after seven years of labour they have only got the Leah of very moderate benefits, in place of the Rachel of high wages that they worked to obtain.

The Caution of an Alleged Journalist.-At Sydney Arthur Whitehall was treated at a hospital “ for severe facial lacerations which he informed the police he had received through being hit on the head with a bottle. targyng woman was charged with inflicting bodily

and the daily newspaper reporting these occur- rences describes the affair as “ An Alleged Brawl.” The wis lom of this limitation is obvious because although the fact that a man has been bashed on the head with a bottle is usually taken as evidence that there has been a quarrel in which some act of violence has regrettably occurred, it may be, seeing that a young woman wielded the weapon, which in medical parlance would be described as “ some blunt instrument,” that the parties were merely playing at some new kind of game i.rvented by the Younger Set ; the whole affair may have been just “ a rag ” -an ultra-modern joke too subtle to be understood by the early Victorian mind. But although the reporter is commendably careful in respect of the brawl his caution unfortunately forsakes him when he describes the assailant as a “ young woman.” For in these days when the beauty parlours have all the materials necessary for that school-girl complexion, who is to say whether a female is really sixteen or whether she is sixty-one, and possibly subject to threats of District Court proceedings for work and labour done and Youth and Beauty provided by Mephistofeles et Cie at her request ? The scribe should have been con- sistent and therefore should have written of an alleged bottle swung on to an alleged man’s head by an alleged young alleged woman. Then all would have been well.

March 19, 1935 New Zealand Law Journal.

Forcible Entry.-In R. v. Waugh, in the Court of Criminal Appeal at Sydney, the facts were that Waugh had forcibly entered premises for the purpose of taking possession of goods included under a hire-purchase agreement. He was prosecuted for forcible entry under the Statute of Richard II and upon conviction was bound over for a term. Upon appeal the point was raised that the Statute only applied when the entry was for the purpose of assuming or resuming possession of lands and tenements and did not apply to the act of entry made in order to take possession of goods and R. V. Pike, 2 Canadian Criminal Cases, p. 314, was cited on the point. The Court adopted the law as laid down by this Manitoba case and quashed the conviction, holding also that the indictment was bad inas- much as it did not allege a breach of the peace, a necessary averment if a common-law offence was charged, nor did it contain the averment that the entry was with a strong hand necessary to make a complete offence under the Statute.

Some Interesting Sinners.-Marie Manah of Sydney, aged sixty-nine, when caught shoplifting a pair of bed- sheets sadly but perhaps trut’hfully remarked “ I am a silly old woman, ” and added “ When I’m sick I have to take things.” So do we all, but bed-sheets were obviously not what the doctor ordered so the Magistrate added his own prescription of a fine of ;E3 for she had had the same kind of sickness and had tried her own cure many times before. And I do hope that with this par. the typist will show her usual accuracy for in one of the local papers the articles were described as “ bad sheets ” and of course a mistake like that is a reflection on Mrs. Manah’s taste and judgment as a shoplifter. If you don’t have to pay for things it is wise to take the best.

There are many ingenious ways of making a dishonesl living but the way adopted by John Broomhead had litth of ingenuity and nothing of anything else to recommend it. His “ lurk ” was to go down the street with a car1 and steal gratings. Then he broke them up into scrap iron and sold it for a few pence, and the local Counci and the Water Board had to fe,me in and light the vacant spaces and replace the gratings at much cost. For many months now Mr. Broomhead will have leisure to discover a more popular way of becoming wealthy. Of course these things happened and were done in Sydney for all the oddities in Australia live there, and by their numbers make it the second city of the Empire.

John Lindo reported to the Sydney police that two stalwart ruffians had come to his dwelling and had treated him with much violence and had stolen $100 ol the moneys of the said John Lindo. When the police came along they were shown blankets torn to fragments! sheets in long thin strips, and John had a small cut on his chin, and a scratch on his cheek, but his hair was parted quite neatly and very nicely arranged, and the police seeing these things told him that they did not believe that the burglars had taken $100 from him, nor that there had been any burglars there, and in this opinion the Judge in Bankruptcy concurred. HiE case reminds one of that of the young lady whc tore several of her garments and then stopped the train to tell a terrible tale of the way the only other passenger in the compartment had assaulted her. But when tht accused showed his cigar with three-quarters of an inch of ash on its glowing end, the lady was escorted to another compartment, and the train moved on.

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Practice Precedents. :xeeution of Instrument by Registrar of Supreme Court.

Section 3 of the Judicature Amendment Act, 1.910, ‘tout and Sim’s Supreme Court Practice, 7th Ed., p. 475, 3 as follows :-

“3. (1) Where any person neglects or refuses to comply with a judgment or order of the Supreme Court or Court of Appeal directing him to execute any conveyance, contract, or other document, or to indorse any negotiable instrument, the Supreme Court may, on such terms and conditions (if any) as may be just, order that such conveyance, contract, or other document shall be executed or that such negotiable instrument shall be indorsed by such person as the Supreme Court may nominate for that purpose and in such case the conveyance, contract, document, or instrument so executed or indorsed shall operate and be for all purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it.

“ (2) This section shall not affect any action or other proceeding already commenced in any Court, or invalidate anything heretofore lawfully done, or invalidate anything already declared to be invalid in any proceedings heretofore taken in any Court.”

The mode of applying for such an order may be by way of notice of motion, but in actual practice it is usually by summona. That being so, in accordance with the direction of their Honours the Judges, the order is then drawn as a Judge’s order. It is assumed that the plaintiff has been successful in his action and has sealed Judgment in a form as hereunder.

--

JUDWENT.

IN THE SUPREME COURT OF NEW ZEALAND.

. . . . . . . .District.

. . . . . . . .Registry.

BETWEEN A.B. etc. plaintiff AND

C.D. etc. defendant. day the day of

Before the Hon. Mr. Justice 19 .

This ACTION coming for trial on the day of 19 before the Honourable Mr. Justice UPON HEARING Mr. of counsel for the plaintiff and Mr. of counsel for the defendant and the evidence adduced THIS COURT DOTH ORDER that the defendant do within one calendar month from the date hereof execute such deed or document as the plaintiff may reasonably require for the purpose of giving effect to the provisions of clause of the agreement for sale and purchase dated the day of 19 and made between the plaintiff and the defendant herein a copy of which is hereunto annexed and IT IS ORDERED that the defendant do pay to the plaintiff the sum of h for costs hereof.

[L.S.]

By the Court. Registrar.

SUMMONS.

(Same heading.)

Let the defendant his solicitor or agent appear before the Right Honourable Sir Chief Justice of New Zealand at His Chambers Supr;~ Courthouse on the day of at 10 o’clock in the forenoon or so soon thereafter as counsel can be heard to show cause why an order should not be made in pursuance of 6.3 of the Judicature Amend- ment Act 1910 that the Registrar of this Honourable Court at be nominated to execute for and on behalf of the defendant a memorandum of transfer in the form annexed

New Zealand Law Journal. March 19, 1936

hereto and that such memorandum of transfer may be executed by the said Registrar accordingly UPON THE GROUNDS :

1. That pursuant to the judgment of this Honourable Court on the day of 19 the defendant, was ordered to execute within one calendar month from the date of judgment such deed or document as the plaintiff might reasonably require.

2. That the said defendant refused and still refuses to execute the said deed or document.

AND FURTHER why an order should not be made that tht said Registrar sign for and on behalf of the defendant the cer. tificate required on the said memorandum of transfer required by s. 175 of the Land Transfer Acts Compilation Act, 1915, AND FURTHER why the defendant should not pay to the plaintiff the costs of and incidental to this summons.

Dated at this day of 19 . Registrar.

This summons is issued by solicitor for the plaintiff whose address for service etc.

--

AFFIDAVIT IN SUPPORT OF SUMMONS. (Same heading.)

I X. of the City of solicitor make oath and say as follows :-

1. That I am a solicitor in the employ of solicitor for the plaintiff in this action.

2. That in the course of my employment I did on the day of 19 serve the defendant’s solicitor of with a certified copy of the Judgment of this Court together with a memorandum of transfer in the form annexed to the summons sealed herein on the date hereof for execution by the defendant.

3. That annexed hereto and marked with the letter “A” is a copy of a letter dated the day of 19 to the defendant advising him that a certified copy of the judgment with a memorandum of transfer had been served on his solicitor

4. That solicitor for the defendant advised me that he had forwarded the memorandum of transfer to the defendant on the day of 19 .

5. That annexed hereto and marked “B ” is a letter dated the day of 19 received from the defendant enclosing the said form of memorandum of transfer and stating that he had received same from his solicitor but had no inten- tion of signing it.

Sworn etc. -

AFFIDAVIT OF SERVICE OF SUMMONS ETC. (Same headilzg.)

I of solicitor make oath and say as follows :- 1. That I am a solicitor in the employ of solicitor for

the plaintiff in this action. 2. That on the day of 19 I served the

above-named defendant with a sealed copy of summons issued herein together with a copy of affidavit filed in support thereof true copies of which are annexed hereto and marked “ A ” and “ B ” respectively at by delivering the same to a clerk in the employ of Mr. solicitor for the defendant.

Sworn etc. -

ORDERFOREXECUTIONOFMEMORANDUMOFTRANSFER BY REGISTRAR.

(Same heading.) UPON READING the summons sealed herein on the

and the affidav?of service filed herein AND UPON HEARING day of and the affidavit filed in support thereof

Mr. of counsel for the plaintiff and there being no appearance for or on behalf of the defendant I DO ORDER that pursuant to s. 3 of the Judicature Amendment Act 1910 the Registrar of this Honourable Court at be and he is hereby nominated to execute on behalf of the defendant the memorandum of transfer in the form annexed to the said summons and that such memorandum of transfer be executed by the said Registrar accordingly AND I DO FURTHER ORDER that the said Registrar DO SIGN for and on behalf of the defendant the certificate on the said memorandum of transfer required by s. 176 of the Land Transfer Acts Compilation Act 1915 AND I DO FURTHER ORDER that the defendant DO PAY to the plaintiff the sum of Z for the costs of and incidental to t,he said summons.

Judge.

L

Rules and Regulations. Noxious Weeds Act, 1908. Second Schedule extended.-GazeQ.

No. 10, February 14, 1935. Education Act, 1914. Regulations relating to Public Schools.--

Gazette No. 10, February 14, 1935. Mining Act, 1926. Amended and Additional Regulations.-

Gazette No. 10, February 14, 1935. Patents, Designs, and Trade-marks Act, 1908. Trade-marks.-

Prohibiting the Importation of Certain Goods.- Gazette No. 10, February 14, 1935.

Samoa Act, 1921. Samoa Immigration Amendment Order, 1935.-Gazette No. 11, February 21, 1935.

Fisheries Act, 1908. Regulations under the Act,.- Gazette No. 13, February 28, 1935.

Samoa Act, 1921. The Samoa Treasury Regulations Amendment Order, 1935.- Gazette No. 13, February 28, 1935.

Post and Telegraph Act, 1928. Post Office Savings-bank: Cancelling Exemptions from Limits of Interest-bearing De- posits.-Gaazette No. 13, February 28, 1935.

Noxious Weeds Act, 1928. Declaring Hemlock to be a Noxious p;V& Otautau Town District.-Gazette No. 13, February

Goveinment Railways Act, 1926. Regulations under the Act.- Gazette No. 13, February 28, 1935.

Gold Duty Act, 1908. Restricting the Removal of Gold Coast. wise.- Gazette No. 14, March 7, 1935.

Fisheries Act, 1908. Amending Genera1 Fisheries ReguIations.-- Gazette No. 14, March 7, 1935.

Orchard and Garden Diseases Act, 1928. Amending Regulations under the A&.-Gazette No. 14, March 7, 1935.

Rarbours Act, 1923. Regulations controlling Traffic on Lake Taupo, Management of Wharves and prescribing Dues.- Gazette No. 14, March 7, 1935.

Unemployment Act, 1930. Allowances to members of Women’s Unemployment Advisory Committee.- Gazette No. 14, March 7, 1935.

Customs Act, 1913. Restricting the Exportation of Porker Pigs to the United Kingdom.-Gazette No. 14, March 7, 1935.

New Books and Publications.

The Local Government Act, 1933. By Taylor and Mess. (Haddon Best.) Price 55/-.

Davar Indian Law of Meeting, including Club Law, 193% (Oxfor: T’niversity Press.) Price 13/-.

Onslow’s Lawyers’ Manual of Bookkeeping. Third Edition. By S. W. Rowland, 1934. (Butterworth & Co. (Pub.) Ltd.) Price 21/-.

Income Tax Law and Practice. 7th Edition, 1934. By C. A. Newport and R. Staples. (Sweet & Maxwell, Ltd.) Price 15/-.

The Law of Distress. A guide to Distress for Rent, Distress for Rates, Distress for Tithes. 1934. By J. P. Eddy. (Sweet & Maxwell, Ltd.)

Jurisdiction and Practice. A Court of Passage of the City of Liverpool. A nc7:; revised edition with notes, etc. By Walter Peel, C.B.E. 1934. (Henry Young $ Sons, Ltd.) Price al/-.

Attorney’s Textbook on Medicine. By Roscoe IV. Gray, M.D. (Matt. Bender.) Price about CO/-.

Local Government in Many Lands. A comparative Study. By G. Montagu Harris. 2nd Edition. (P. 8. King & Son.) Price al/-.

Local Government. By H. Lloyd Parry. (P. S. King & Son.) Price 8/6.

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