May 23, 1933 New Zealand Law Journal. 121

New Zealand

” The question from time to time comes to one’s mind, ’ What is judicial success ? ’ I have come to the view that the only praise that a Judge may give himself is the praise given by a woman of her husband-namely, ’ He is not ideal, but he is satisfactory.’ The task of the Judge is to ascertain the truth. Whether we succeed in reaching the truth or are possessed of the learning desired, at all events my colleagues and myself claim the qualities of fearlessness, honesty, and independence. These three qualities are the basis of the English judicial system, and I hope that they will remain as long as our race and our language last.”

-THE LATE MR. JUSTICE MCCARDIE.

Vol. IX. Tuesday, May 23, 1933 No. 9

A Great Judicial Personality. I.

In the week during which the news reached us of the sad ending of the life of Mr. Justice McCardie as the result of a mental breakdown following successive attacks of influenza, Mr. R. A. Singer of Auckland, who was a contemporary of the late Judge on the Midland circuit, treated the readers of the JOURNAL to some specimens of “ the pith and cogency and brilliance ” of the judgments of the late eminent member of the King’s Bench Division.

No other English Judge of our day was better known to the public at large than Mr. Justice McCardie. His judgments created interest in him personally, and the newspapers found in his Court many a human interest story. His reputation for gigantic stores of legal learn- ing, garnered from day to day and hidden away for use as occasions of judicial duty required, won respect from the newspaper reader to whom the Law appears a difficult study, and proficiency in which is taken to be a mark of exceptional intellectual powers. Add to this the human touches with which his judgments were illumined and the popular interest was won. His unassuming manner on the Bench, and his sympathetic attentiveness to all thnt witness or counsel had to say, were qualities which awakened esteem in all whose duties took them to his Court. Since Lord Darling retired, there was no more conspicuous figure on the Bench, and there was no other Judge whose methods were selected more readily for study by the junior counsel, or students of the common law anxious to learn the tricks of his chosen profession.

Notwithstanding the weight of his learning, an air of youthful freshness was the striking characteristic of the late Mr. Justice McCardie. Though over sixty years of age, and over seventeen years on the Bench

at the time of his death, his youthfulness of mental outlook was shown in his ready sympathy, curiosity, imagination, and vision, as well as in his. positive enthusiasm for the elucidation of some novel point of law. Though greatIy attached to the historical side of a legal rule, he was always ready to consider the changing times. He appreciated the difficulty in reconciling old legal doctrines with modern conditions. “ Many unenforceable instances will occur to the lawyer who possesses sociological vision,” he remarked last year in the course of his judgment in the remarkable “ enticement of a wife ” case, Place v. Searle, in which his comprehensive review of the law as it affects a husband’s control of his wife is reported in [1932] 2 K.B. 497.

That he was at his best in questions of the rights and duties of husbands and’ wives is well known. (Mr. Singer recently suggested that a text-book could be compiled from his judgments on “The Law of Lingerie.“) In the last of his judgments to reach us, Townsend v. Child [1933] 1 K.B. 183, the late Judge had this to say about married women in the eye of the law to-day :

“On the one hand, married women obtain by statute all the rights and opportunities of men. On the other hand, they are possessed of certain protective privileges which seem to rest on the footing that the married woman is in some respects still to be regarded as a child or as one unfitted by nature for the assumption of financial responsibility.”

Sir Henry McCardie had in him the qualities of a great legal reformer ; but it will be regretted that in recent years he made some deplorable lapses from judicial prudence, notably, last year, in his advocacy from the Bench of the abolition of punishment for the crime of abortion, and his attacks on poor mothers on account of the number of their children. These may have been symptomatic of the eventual mental breakdown which led to his death.

II. The late Mr. Justice McCardie was an Irishman by

descent, but his father had settled in Birmingham long before he was called to the Bar by the Inner Temple in 1894. For many years after his call, he localised in Birmingham, and quickly got known on the Midland and Oxford circuits, which meet at the famous town associated with such very different personalities as the late Joseph Chamberlain and Cardinal Newman, and which, we are told, resemble each other in type much more than any other two circuits. Both the Oxford and the Midland circuits have behind them a solid tradition of sound legal scholarship. They have, too, a sound grip of the principles of Commercial Law. They may not be very familiar with ships : Lord Darling once feelingly remarked, “ We don’t know much about ships on the Oxford Circuit,” and Lord Justice Scrutton has referred with genial sarcasm to some Appeal decision relating to “ a ship, on the Oxford Circuit ” ; but if the Oxford and Midland circuits fall behind the Northern and North-Eastern in their acquaintanceship with the technicalities of charter- parties and bills of lading, it is generally conceded that they excel in all questions arising out of the great Contract of Sale. C.I.F. and F.O.B. contracts are names which call up visions of the Civil Assize Courts at Birmingham. The solid learning of the Midlands is no contemptible rival of the sharp legal acumen in which admittedly the circuits farther north excel.

A certain conservatism is one of the features of Midland England. But unlike the conservatism of the rural or metropolitan South, that of the Midlands

122 New Zealand Law Journal. May 23, 1933

professes itself essentially solid, sensible, and old- fashioned rather than romantic. It does not delight in old imaginative legends like the Arthurian West Country, but it loves the massive support derived from pillars of historical erudition acting as foundations for some principle or rule deemed important at the present day. A love of case-lore, an attachment to legal history, an enthusiasm for ancient formulas and rubrics ; these are familiar marks of the Midland legal mind, as the traditions of the Oxford and Midland circuits have shaped it. And herein unquestionably Mr. Justice McCardie was a true son of his old circuit.

It was his massive knowledge of the case-law and his skill in mastering the intricacies of the old rules, of pleadings, still so important in practice, which rapidly brought Sir Henry McCardie into fame locally in Birmingham. His clients constantly briefed him with- out a leader, and took him to argue the appeal in London. He had been only ten years at the Bar, and was still in the early thirties, when it became clear that Birmingham did not afford an adequate sphere for his formidable talents as an advocate in a Commercial or Divisional Court case. He boldly decided to take the plunge at once, cut himself free from his Midland moorings, and took chambers in London which soon acquired the reputation of being the busiest junior’s chambers in the Temple. His practice as a junior, indeed, soon exceeded all previous limits. Not un- naturally, he applied for silk.

Then came a strange episode in Sir Henry’s successful career. Lord Loreburn, who was then Lord Chancellor, had a habit of considering very long and carefully all applications for silk received by him. He did not make an annual grant of those patents which confer the dignity of King’s Counsel, but sometimes made no new appointments for nearly a couple of years. Unfortun- ately it was in one of these periods of delay that Sir Henry applied. Of course, the fact that he had applied for silk was universally known ; these applications cannot be concealed. Naturally solicitors hesitated to deliver junior briefs to a counsel who might soon be forced to return them, as his appointment to silk might be announced any day. The busy junior found his huge practice diminishing in a most irritating way.

Sir Henry acted at once with characteristic decision. He announced the withdrawal of his application and the reasons why he had been forced to do so. A vigorous controversy in the press followed, and soon afterwards Lord Loreburn terminated the anxiety of applicants by making his list of silks. Later on, the name of Sir Henry was added to these without any renewed applica- tion on his part. He, however, refused to be a silk against his will, a rare instance of nolo episcopari at the Bar, and remained a junior until promoted a few years later to a vacancy in the King’s Bench Division. He had throughout his career at the Bar steadfastly refused to join any political party.

On the Bench Sir Henry did not disappoint his friends and admirers. The accumulated stores of his legal learning he gradually gave forth in the shape of monumental judgments which recite every relevant reported case in a stately procession from the days of Sir Edward Coke to the current volume of the Law Reports. To cite only a few instances, there is Said v. Butt [1920] 3 K.B. 497, on the identity of a contracting party ; Hartley v. Hymans [1920] 3 K.B. 475, on sale of goods ; Barnett v. Cohen [1921] 2 K.B. 461, on Lord Campbell’s Act ; Jeffery and Co. vu. Bamford [I9211

2 K.B. 351, on the legal possibility of a betting partner- ship ; McCreagh v. Goz (1923) 92 L.J., K.B. 855, on distress ror rates ; Collins v. Hopkins [1923] 2 K.B. 617, on pulmonary tuberculosis in a house as causing unfitness for habitation ; Gayler and Pope, Lto?. v. B. Davies, Ltd. [1924] 2 K.B. 75, on trespass by animals ; John Edwards and Co. v. Motor Union In- surance Co. [I9221 2 K.B. 249, on marine insurance ; Manbre Saccharine Co., Ltd. v. Corn Products Co. Ltd. El9191 1 K.B. 198, and Diamond Alkali Corporation v. PI. Bourgeois [1921] 3 K.B. 443, on c.i.f. contracts ; and to include a reversed, but very valuable judgment, Calthorpe v. McOscar [1923] 2 K.B. 573, on covenants to repair.

III. In cases involving a greater news value, Mr. Justice

McCardie became familiar to the world at large. A certain piquancy was given to the late Judge’s out- spoken remarks in matrimonial and kindred cases from the fact that he had never married. It may have been another illustration of the adage that “ an onlooker sees most of the game.” His exhaustive historical and legal review, in a judgment covering thirty pages of the Reports, as to the ascertainment of “ the value of a wife ” in relation to damages in divorce suits, is a case in point : Butter-worth v. Butterworth and Englefield [1920] P. 126. Then there are his obiter dicta on the extent of a husband’s obligations in regard to his wife’s extravagance in dress and his right to determine the scale of domestic life, notably in the judgments delivered in Miss Gray, Ltd. v. Earl Cathcart (1922) 38 T.L.R. 562, and in Callot Soeurs v. Nash (1923) 39 T.L.R. 291. In the former we find such references as these : “ A high rank often indicates a low balance at the bank.” “ Her prodigality was for her social associates and not for the man she had married.” “ Extravagance is not the mark of a gentle- woman. Simplicity is an essential feature of useful and beneficent female citizenship.” And also :

“Prodigality is a feminine fault. It is not a feminine merit. In the life of Nero, by Seutonius (Cap. 30) it is said, ‘ Nulhm western his induit,’ i.e. ‘ He never wore the same garment twice.’ This is mentioned by the historian not as a merit but as a defect of one of the worst of the Roman Emperors. Extravagance is not to be commended in times when the stress of life is ever growing, when the social structure is being tested, and when the standard of a simple and laborious life is cogently needed for the national welfare.”

Mr. Singer has so recently quoted extensively from ;he latter judgment of Callot Soeurs v. Nash, that it is urnecessary to give further examples of Mr. Justice YlcCardie’s observations on this class of case, except ;o record his closing remarks in Place v. Seale [1932] ! K.B. 497 :

“In the first place, it seems to me that the position as between husbands and wives and third parties calls for recon- sideration by the law in view of the new status of married women. Secondly, the rights of a married woman to form her independent friendships and enjoy her own amusements can never be solved by the law but must be determined by the standards of loyalty, of courtesy, and of good sense ; and, thirdly, that the comfort and happiness of married life rest not on statutes or decisions but on matters that lie beyond and above the realm of law.”

It remains to add that this judgment was reversed In appeal on the ground that there was no justification n law for the learned Judge’s modern doctrine that ;he enticement under present day conditions must be such as to overbear the will of the wife and not to leave her as a free agent : that the action would lie

the Court of Appeal holding if there is such persuasion aa,

-May 23, 1933 New Zeal.and Law Journal.

without justification, induces a wife to leave her bus. band, and sending the action back for retrial with another jury.

The late Mr. Justice McCardie’s judgments, generally are monuments of erudition, in which the practitioner can find’ at once a full p&is of the case-law which renders unnecessary any recourse to the digests. But they are more than mere arrays of decisions. In grasp of principle and in boldness of mind, which feared not to be convinced by a novel argument, Sir Henry McCardie is not eclipsed even by his own colossal knowledge of the cases. His name unquestionably will be preserved in legal history and tradition as one of the great scholarly judges who from time to time win a place of their own in the Reports.

Another notable example of his method on the Bench is his summing up in O’Dwyer v. Nair, the libel action which arose in 1924 out of the suppression of the Amritsar disturbance, which caused a great political stir at the time. It may be unfortunate that a matter of that nature should have been the subject of inquiry in ordinary judicial proceedings, but once submitted to such inquiry, it had to be dealt with on legal principles. This appears not to have been understood by Mr. Ramsay Macdonald, who was then Prime Minister. In the view of the learned Judge-and no one was more competent or could have been in a better position to decide-the conduct of General Dyer was a direct issue in the case. It was accordingly the subject of exhaustive evidence, and in directing the jury Sir Henry, in accordance with precedent, gave his own view of the effect of the evidence while leaving the responsibility of decision to the jury. Mr. Ramsay Macdonald, in the House of Commons, treated it as obiter dictum and a countervailing despatch was sent to the Government of India. Possibly as a political matter the Govern- ment thought there was no alternative. The learned Judge and the jury had not to deal with the case as a political matter, or to allow themselves to be influenced by political considerations. The judicial view was one thing and the political view was another. But Mr. Justice McCardie, in a difficult and very responsible case, directed the jury in accordance with what he considered to have been his judicial duty, and in so doing he main- tained the character of the English Bench for inde- pendence and fearlessness.

In conclusion, it may be noted that the late Mr. Justice McCardie was of opinion that the ideal to which a judge should strive is that stated by Edmund Burke as “ the cold neutrality of an impartial judge.” “ I do not forget,” he once said, “ the dictum of Lord Bramwell that ‘ one-third of every judge is a common juror.’ Remembering that, I venture to add that if there be any unconscious instinct to lean to one side rather than to the other, it is an instinct not in favour of the strong or the well-to-do, but an instinct which tends towards those who are weak and those who are poor.”

General regret has been expressed at the death of this notable legal personality, and the Reports will be the poorer for his passing-not only for the loss of his sound expositions of the law, but also for the refresh- ingly crisp and lucid English in which the late Judge always expressed his views in the course of his judg- ments. His “ life ” in the hands of a competent biographer is something to which we look forward with keen anticipation.

n

123

Summary of Recent Judgments. Coum OF APPXAL

Wellington. Mar. 13, 14, 15, 16 ;

April 12. Myers, C. J. Mac Cregor, J. O&r, J.

Smith, J.

THE AUSTRALASIAN TEMPERANCE AND GENERAL MUTUAL LIFE

ASSURANCE SOCIETY, LTD. v. JOHNSON.

THE COMMERCIAL UNION ASSURANCE CO., LTD. v. JOHNSON.

Insurance-Accident-Accident or Life Policy-Clause of Policy whereby Company agreed to aocept Decision of Supreme Court as final-Estoppel-Practice-Effect of Admission in State- ment of Defence-Waiver-Life Insurance Act, 1908, s. 35.

Appeals from the decision of Mr. Justice Reed in two actions claiming insurance-moneys in respect of an accident to the plaintiff, Elizabeth Ivy Johnson, on May 6, 1930, as a result of which she suffered amputation of her left leg below the knee. By consent both actions were heard together. Each defendant had the plaintiff’s husband joined as a third party.

The claim against the Commercial Union Assurance Co:, Ltd., was in respect of a comprehensive motor-car policy insuring the plaintiff for, inter alia, e250 for the loss suffered by her. The Jlaim against the Australasian Temperance and General Mutual Life Assurance Society, Ltd., was in respect of an ordinary tccident insurance policy under which compensation for the gaid injury was stated to be &500.

In each case the defendant acknowledged liability and paid 3ver the sums named to the plaintiff’s husband and obtained a receipt, purporting to have been signed by the plaintiff. The plaintiff claimed she had not received the amounts payable to her under the policies, and alleged the receipts had been :orged. The third party filed a defence in each action.

Mrs. J., one of the respondents, wasinsured by the Australasian Temperance and General Mutual Life Assurance Society, Ltd. hereinafter called the T. and G.) under a personal accident policy, md by the Commercial Union Assurance Co., Ltd. (hereinafter :alled the Commercial Union) under a private motor-vehicle ,olicy, insuring her against personal accident sustained in direct :onnection with any motor-vehicle described in the schedule ,hereto. On May 6, 1930, she met with an accident in direct :onnection with a motor-car covered by the policy, as the xesult of which her left leg was amputated below the knee, Intitling her, on compliance with the conditions of the policies, ,o 6500 from the T. and G. and $260 10s. from the Commercial &ion.

J., her husband, the other respondent, without her authority, ,y purporting to act as her agent, by means of forged receipts md in the case of the T. and G. a forged endorsement on a :heque, received the amounts payable under both policies. Urs. J. became aware on August 23 that the insurance-moneys lad been wrongly obtained from the T. and G., and within a nonth from that date that those payable by the Commercial Jnion had also been wrongly obtained. On November 10 she ealised the precise manner by which the money had been ob- ,ained from the Commercial Union, and informed one of its officers that she had not received the money, and that the eceipt therefor was a forgery. On February 12, 1931, having een the receipt returned to the T. and G. from Sydney, she leclared it was a forgery, having previously suspected it of jeing so. On March 31, 1931, she informed the manager of he company that she proposed to sue the company, having had wo previous interviews with him without making any claim n respect of the insurance-money.

Meanwhile, on September 29, 1930, Mrs. J. obtained in the lagistrate’s Court an order of separation from her husband ,nd, after negotiations for the settlement of various claims she lad made against her husband, on October 1, 1930, there was

meeting of husband and wife and their solicitors, when an ,djustment or division of properties of the spouses was partially rranged, which was completed on November 1, 1930, by a ettlemont arrived at, as to which Mrs. J.‘s solicitor said, in cross- xamination, “I extracted every asset (from the husband) :hich I thought of value at the conference,” but in which sttlement according to the judgment of Reed, J., the possession f the moneys received by J. from the companies was not taken lto considerat’ion. Such moneys had been paid by J. into is own bank account and already spent. (The evidence as D this settlement was differently interpreted by Myers, C.J.,

124 New Zealand Law Journal. May 23, 1933

and Hostler, J., on the one hand, and by &‘mith, J., on the other. See the references therein in their judgments on the question of estoppel.) Mrs. J., without giving any notice of the accident or observing the other conditions of the policies as to furnishing information and referring any dispute to arbitration, brought actions against the T. and G. and the Commercial Union for the recovery of the policy-moneys.

These actions, in which J. was made a third party, were heard together by Reed, J., who gave judgment for the plaintiff against both defendants.

In the margin of the policy of the T. and G., which is incor- porated and registered in the State of Victoria, was printed the following clause :-

“ Any decision of the Supreme Court of New Zealand in regard to this policy will be accepted by the Society as final.”

In the Court of Appeal,

Sievwright and Heine, for the plaintiff; Bunny and O’Leary for the Australasian Temperance and General Mutual Life Assurance Society, Ltd. ; Parry, for the Commercial Union Assurance Co., Ltd.

ON THE T. & G. SOCIETY’S CASE :

HeId, per totam cu&um, on a preliminary objection raised by Mrs. Johnson, That this clause precluded the society from appealing, as the policy was not a life policy, and that s. 35 of the Life Insurance Act, 1908,

“In every policy or other contract issued by any foreign company to persons resident in New Zealand, it shall be expressly stated that the company will abide by the decision of the Cour’t,”

did not apply.

The appeal by the society was accordingly dismissed.

Semble, That, if that section had applied, the society would still have been precluded from appealing.

Smallfield v. National Mutual Life Association of Australasia, Ltd. [1922] N.Z.L.R. 1074, distinguished.

ON THE COMMERCIAL UNION COMPANY'S CASE:

Condition 8 of the Commercial Union’s policy provided for the reference to arbitration of any question or dispute arising respecting the liability of the company or the amount payable by it to the insured in connection with any claim under the policy.

Condition 9 was as follows :-

“ No action shall be maintainable against the company under this policy unless the proceedings are commenced in a Court of law within six months from the date of the award obtained in manner provided by condition 8 hereof. Provided also that no action shall be maintainable in any case where any difference has arisen within the meaning of condition 8 hereof unless the question in difference is referred to arbitration as aforesaid within six months from the date when such difference arose.”

By condition 11 the due fulfilment of the conditions of the policy, so far as they related to anything to be done by the insured, was made a condition precedent to any liability of the oompany to make any payment under the policy.

The Commercial Union in its statement of defence and in its amended statement of defence admitted the allegation in the statement of claim that, the plaintiff had duly performed all the provisions of the said policy on her part, and in the amended statement of defence added the defence that the plaintiff had failed to obtain an award under conditions 8 and 9. During the hearing and after the respondent had given evidence, leave was granted by the Court to file a further amended statement of defence pleading that the injury suffered by respondent was not an accident within the policy. Such statement of defence when fil6d in addition to such plea also denied that the plaintiff had performed all the provisions of the policy on her part and alleged failure to comply with conditions 1, 4, 8, and 9. The Commercial Union among its defences set up those of failure to comply with the conditions of the policy, which Mrs. J. submitted had been waived by the pleadings and by payment to her husband, and of estoppel by conduct.

--

Held, allowing the appeal,

As to estopped : Per Myers, C.J., and O&r, J., MacGregor, J., dubitante, and Smith, J., dissenting, That there was a legal duty on Mrs. Johnson t,o inform the Commercial Union that the payment of the money was unauthorised by her, and that by her silence until November 10, after obtain- ing the knowledge on August 23 that her husband had without her authority collected the moneys due to her by the Commercial Union and by her extraction from her husband of all his assets of value, the Commercial Union had suffered detriment, and therefore she was estopped from alleging that the payment to her husband was not authorised by her.

Per Smith, J., dissenting, That Mrs. Johnson’s rights were not barred by the doctrine of estoppel, as it had not been proved that her silence showed any such deliberate abstention from speaking on her part to prevent the Commercial Union from recovering from her husband as would justify the Court in barring her legal right to sue the company, and nothing occurred between husband and wife which could not be des- cribed as a division of the properties according to the respective rights of the parties or by which the wife intended to deprive her husband of properties which would otherwise be available to the company if it had sued him to recover moneys wrongfully paid to him in respect of her insurance-moneys.

As to non-compliance with the conditions of the policy :

Per totam curium, That Mrs. Johnson had failed to fulfil conditions 8 and 9 of the policy. If she adopted part of her husband’s fraudulent scheme, that adoption operated in a ratification of the whole transaction, including the payment to him. If she repudiated that scheme, she had failed to pursue her own claim in accordance with the conditions of the policy.

Union Bank of Australia, Ltd. v. McCJintock [ 19221 1 A.C. 240, applied.

As to waiver of such non-compliance :

Per Ostler, J., Myers, C.J., club<tante, MacGregor, J., expressing no opinion on the point, and Smith, J., dis- senting, That on the Commercial Union’s pleadings the Court should regard the admission as still made that all the conditions of the policy had been performed by Mrs. Johnson, except that the accident was not within the terms of the policy ; that Mrs. Johnson’s claim was in fact a claim for a debt for a liquidated amount which was admitted to be due, and which by mistake of fact caused by the fraud of her husband was paid to the wrong person. The statement of claim could have been so framed. It was framed as a claim under the policy and liability under the policy was necessarily admitted in the plea of payment thereunder. Therefore all conditions precedent, to the company’s liability must be held to have been waived.

Per Smith, J., dissenting, That the company had not by its pleadings waived its right to take advantage of the con- ditions of the policy, as for the purposes of the trial there was no admission of the allegation that the plaintiff had duly per- formed all the conditions of the policy on her part, unless it was shown that the payment to her husband was made to him as her agent.

The appeal of the Commercial Union was accordingly &owed.

Appeal by the Australasian Temperance and General Mutual Life Assurance Society, Ltd., dismissed.

Appeal by the Commercial Union Assurance Co., Ltd., allowed.

Solicitors : Bunny and Barrett, Wellington, for first-named Lppellant ; Buddle, Anderson, Kirkcaldie, and Parry, Wellington, ior second-named appellant ; A. B. Sievwright, Wellington, for E. I. Johnson; Treadwell and Sons, Wellington, for J. R. Johnson.

Case Annotation : Union Rank of Australia, Ltd., v. McClintock [I9221 1 A.C. 240, E. & I#. Digest, I.933 Supplement, Agency (vol. 1, p. 55), para. 989a.

As to estoppol, see 13 Halsbwq’s Laws of England, 321, Spencer Rower on E:Ytoppel by Representatioq and text-books otherwise referred to in the judgments : Welford’s Accident Insurance, 2nd Ed., and Macgillivra~‘s Insurance Law. For ;he Life Insurance Act, 1908, see THE REPXINT OF THE PUBLIC ACTS OF NEW ZEALAND, 1908-1931, title Insurance, Vol. 4, 78.

May 23, 1933 New Zealand Law Journal. 125

FULL COURT. Wellinaton. j

Mar. 29 ; April 12. Myers, C. J.

I IN RE DONOHUE (DECEASED),

Reed. J. DONOHUE v. PUBLIC TRUSTEE. Mac &egor, J. Ostler, J.

Smith, J. I

Family Proteetion-Application for Extension-Final Distribu- tion-Balance held on Trusts of Will-Family Protection Act, 1908, s. 33-Family Protection Amendment Act, 1921, s. 2.

Applicat,ion by widow for leave to claim relief, and for relief, under the Family Protection Act, 1908, reserved by Mr. Justice Smith for the consideration of the Full Court.

The testator, James William Donohue, died on October 20, 1927, leaving a will bearing that date whereby he devised and bequeathed all his property in equal shares to Barry McGoughan, Bessie Mitchell, May Hoey, and Yvonne Hoey, all minors and strangers in blood ; and probate thereof was granted on January 10, 1928, to the Public Trustee as appointee of the executor

named in the will, in terms of s. 13 of the Public Trust Office Act, 1908. Before July 31, 1929, the estate had been cleared of all debts and claims and the residuary estate ascertained ; and on that date it was divided into four accounts, one for each of the minor beneficiaries. May Hoey’s share was paid to her on her attaining her majority on January 18, 1930. As from the date of division, each share was credited with the interest arising from it and debited with any payments made for the maintenance of the minor entitled.

On June 19,1931, the plaintiff took out an originating summons claiming relief, and in her affidavit she deposed to her marriage to the testator in England on November 11, 1901, and to two children of the marriage still living. She stated she had not heard of the testator since the year 1908 until she heard of his death during October, 1930. In January, 1931, she was in- formed by the Public Trustee of her husband’s death ; and, after communicating with him, she received intimation of the contents of the will on April 22, 1931. She thereupon in- structed solicitors in New Zealand to make a claim on her behalf under the Family Protection Act.

When the originating summons came before Mr. Justice Smith, the plaintiff’s argument raised for review the decision of Mr. Justice Adamsin Public Trustee v. Kidd [I9311 N.Z.L.R. 1 ; [1930] G.L.R. 595, sub. nom. In re Kidd (deceased), and he made a memorandum, which is in part as follows :-

“ If in this case I follow the decision of Mr. Justice Adams, an injustice may be done to the plaintiff, as I understand that means are not available to prosecute an appeal. Under the circumstances, I think the proper course is to reserve the case for the consideration of a Full Court at the next sittings of the Court of Appeal at Wellington.”

His Honour directed that if plaintiff’s solicitors could not arrange for argument in Wellington, the argument for the plaintiff should be submitted in writing, and lodged with the typed copies of the case for the Full Court.

T. J. Fleming, for the plaintiff, submitted argument in writing ; E. S. Smith, for the Public Trustee.

Held, That there is no jurisdiction to make an order under s. 33 of the Family Protection Act, 1908, except out of the estate of the testator. Whenever there has been a final distribution of that estate there is no estate of the testator left, and, therefore, no fund or property on which such an order could operate.

There has been such a distribution when one-fourth of the estate has been actually paid over and the remaining three- fourths is held by the trustee of the will not as executor, but as trustee for infant beneficiaries in sepawto shares.

In the Court of Appeal :

Public Trustee v. Kidd [1931] N.Z.L.R. 1 ; [1930] G.L.R. 595, sub. mm. In re Kidd (deceased) approved.

Application by testator’s widow dismissed.

Solicitors : McVeagh and Fleming, Auckland, for the plaintiff ; The Public Trust Offfoe Solicitor, Welhngton, for the defendant.

SUPREME COURT 1 Timaru.

Feb. 2,3 ; Mar. 30. !

I Kennedy, J.

SOLOMON v. THE KING.

Contract-Co-operative Contract with the Crown-Members of Co-operative Party-Whether Independent Contractors or Servants.

Motion for nonsuit, and, alternatively, for judgment, arising out of an action in which the plaintiff claimed E2,OOO damages; alleging that her husband was a servant in the employ of the Crown and that he met his death through the negligence of a fellow-servant. It was agreed that issues as to negligence and as to assessment and apportionment of damages should ba answered by the jury, and that all questions of law, and that all questions of fact not determined by the jury, should be determined by the learned Judge.

The jury found negligence on the part of the man alleged to be a fellow-servant, assessed the damages at 11,400, and found that this sum should be divided as follows-namely, SSOO to the widow, and $500 to her son Richard. The de- fendant called no evidence.

Leave was reserved to move for a nonsuit ; and, after the verdict, the defendant moved for a nonsuit, and, alternatively, for judgment, upon the ground that the deceased and the worker found to be negligent were both independent contrartors, and not fellow-servants in the service of the Crown.

W. D. Campbell, for respondent ; P. J. O’Regan, for suppliant.

Held : The members of a co-operative party working under No. 278 Road Co-operative Contract Dam Excavation 45Oft.- 720ft. Waitaki Power Scheme held to be independent co- operative contractors, and not servants of the Crown.

No action, therefore, lay against the Crown for damages for the death of one member through the negligence of another member of the party.

Lawless and Another v. The King, (1909) 12 G.L.R. 327, fol- lowed.

Judgment accordingly.

Solicitors : P. J. O’Regan and Son, Wellington, for suppliant ; Raymond, Raymond, and Campbell, Timaru, for the Crown.

SUPREME COURT Christchurch.

I PRENTICE v. OFFICIAL ASSIGNEE OF

1933. MOFFATT, EX PARTE MOFFATT ND ANOTHER. Mar. 10 ; May 1.

I A

Mac Gregor, J.

Bankruptcy-Undischarged Bankrupt-After-acquired Property -Non-intervention of Official Assignee--Rights of Person dealing with Bankrupt bona fide and for Value-Bankruptcy Act, 1908, s. 61.

Interpleader Summons on the application of the executora and trustees of the estate of Joseph Moffatt, deceased, for an order that the claimants to the sum of 6587 19s. 10d. being the one-sixteenth share of the residuary estate of the said deceased, appear and state the nature and particulars of their respective claims thereto, such claimants being one Prentice and the Official Assignee in Bankruptcy of Otto Cyril Cuthbert Moffatt, a son of the said deceased, who, while an undischarged bankrupt, had assigned such share to Prentice for value.

Section 61 of the Bankruptcy Act, 1908, is in part as follows :

“The property of the Bankrupt passing to the Assignee and divisible amongst his creditors shall comprise the following particulars :-

126 New Zealand Law Journal. May 23, 1933

(a) All property belonging to or vested in the bankrupt at the commencement of the bankruptcy, or acquired by or de- volving upon him before his discharge.”

Areher, for the trustees; Arndt, for Prentice; Twyneham, for the Official Assignee.

Held, that despite the wording of the Statute, until the Official Assignee intervenes, all transactions by a bankrupt, after his bankruptcy, with any person dealing with him bona fide and for value in respect of his after-acquired property, whether with or without knowledge of the bankruptcy, are valid against the Official Assignee.

Cohen V. Mitchell (1890) 26 Q.B.D. 262 and Anstee v. Spring (1913) 32 N.Z.L.R. 966, followed ; In re Ingram, Official Assignee v. Public Trustee [1933] N.Z.L.R. 221 ; p. 19 ante, referred to.

Solicitors : Wynn-Williams, Brown, and Gresson, Christ- church, for the trustees ; Roy Twyneham, Christchurch, for the Official Assignees ; Ongley, O’Donovan, and Amdt, for the defendant Prentice.

NOTE :-For the Bankruptcy Act, 190&?, see The Reprint of the Public Acts of New Zealand, 1908-1931, vol. 1, title Bankruptcy, p. 466. Case Annotation : Cohen ZI. Mitchell, E. and E. Digest, Vol. 5, p. 729-30, para. 6324.

SUPREME COURT Napier.

1933. March 4, 8.

Blair, J.

IN RE GEORGETTI DECEASED, GEORGETTI AND ORS. v. GEORGETTI.

Will-Annuity-Direction to appropriate sufficient capital to provide Specified Annuity in exoneration of rest of Estate- Authority to resort to Capital of Annuity Fund-Insufficiency of Income of whole Estate owing to Depression-Exercise of Court’s Over-riding Authority to make Annuity secured on Capital of whole Estate.

Testator gave his estate to trustees upon trust to hold the trust estate and investments representing the same upon trust out of the income to pay his wife during her lifetime an annuity of $1,000. He also authorised his trustees to appropriate such parts of the trust estate as should be sufficient by the income thereof to pay the annuity. Thereafter, such appropriated capital should be wholly charged with payment of the annuity “in exoneration of the rest of my estate but that the capital of the annuity fund may be resorted to at any time the income thereof is insufficient to pay such annuity.”

Owing to the depression, (a) the trustees were unable to exercise their power to appropriate portion of the estate suf-

ficient to provide the income to pay the annuity, and (b) the income of the whole estate was negligible and a sale of the estate assets could only be made at a disastrous sacrifice.

On application by the trustees as to whether under the will they had a general power to resort to capital for payment of the annuity,

Hallett, for the plaintiff trustees ; Holderness, for the widow ; Seannell, for the defendant.

Held, that the question as to whether the widow had or had not a charge on the capital of the estate did not arise, as, apart from whether the trustees had power to resort to capital for pay- ment of her annuity, the Court was entitled on the facts to exercise its overriding authority, as the exercise of such authority was necessary to save the estate for the benefit of the family as a whole.

In re Douglas [1922] N.Z.L.R. 954, 986, followed, and order made in similar terms. Fantham v. Public Trustee (1913) 33 N.Z.L.R. 447, applied. In re Levinge deceased, Wynn- Williams and Others v. Mortimer and Others [ 19331 N.Z.L.R,. 257, p. 52, ante, distinguished.

Solicitors : Hall&t, O’Dowd, and Morrison, Napier and Hastings, for the trustees ; Logan, Williams, and White, Hastings, for the widow; Carlile, McLean, Scannell, and Wood, Napier, for the defendant.

Evidence on Commission. Breaches by Motorists of Traffic Laws.

According to the daily press, an effort is to be made next Parliamentary session to get legislation passed that shall provide for the taking of evidence on com- mission in connection with offences for breaches of the traffic laws relating to motor-vehicles.

One interesting thing about the matter is the source where the proposal originates. Most mitigations of the criminal law are pressed by disinterested and benevolent bodies such as Howard Leagues and Prison Gate Missions, of whose members it is never expected that they will benefit in person by the alterations for which they contend. The present proposals emanate from bodies in whose ranks must be sought many of the presumptive offenders, and they are therefore not altogether disinterested. It is rather as if, supposing the Government to decide on a strict enforcement of the sealing laws, the Invercargill Poachers’ Association -which, for aught that appears to the contrary, may (if it exists) be a responsible and influential body- should press for mitigation of Part I of The Fisheries Act.

The reason put forward for the proposal is, of course, the inconvenience of defending a case tried where the offence was committed, and where most of the evidence is available, supposing the defendant to have moved on to some other part of the Dominion. It is not the quality of the offence that is chiefly in question, but the migratory character of the defendant. It may be observed that the position is not as nearly unique as the public may be led to believe. It may, of course, arise in connection with any offence. A prosecutor may lay an information to be brought before the Justices in any part of the Dominion : R. v. Power, 21 N.Z.L.R. 407 ; the sense of fairness of prosecuting authorities, and the power of the Justices to adjourn proceedings from one place to another (Justices of the Peace Act, section 86), are the safe- guard against abuses. Long before breaches of traffic laws by motor-drivers assumed their present importance, the position became-as it remains-an intermittent trouble with inland fishery offences. Probably with these there still exists a greater real ground of complaint ; after all, most motor-driving takes place round about the driver’s home ; long-distance touring is not an every-day matter for the great majority of drivers ; whereas most trout-fishing is comparatively far away. Moreover, the itinerant motorist is frequently one who might say, with the swallow in the Wellington Law Library, ” Je reviendmi.”

It need hardly be said that the proposal involves a radical change in criminal procedure. On the criminal side, evidence not led in the face of the Court is used only under compelling necessity, when the witness is either dead or as good as dead. The nearest ,present approach to such a practice is under the Maintenance Orders (Facilities for Enforcement) Act, 1921, passed on humanitarian grounds to avert what previously amounted virtually to a denial of justice. Even there it is strictly limited to maintenance cases between husband and wife ; claims in affiliation cases are care- fully excluded,

May 23, 1933 New Zealand Law Journal. 127

Part of the argument in favour of the proposal may be based oaa contention that these offences are malcG prohibita, not mala in se. This distinction is a hazy one, and the law has as little to do with it as possible. It is an issue more for moralists than lawyers. What is thought m&m in se differs in different communities, and at different times, and in different sections of the same community at the same time. Some people see no harm in “ beating the Customs ” ; others of stricter views find no difference between robbing an individual and robbing the State. Not a few people appear to look lightly on the crime of abortion. To measure the gravity of an offence by the gravity of the result is inevitable under the system to which we have been bred, but the tendency should not be dis- couraged, and is probably decreasing. Offences created by motor-traffic legislation are largely pre- ventive in character, and may properly be regarded as mala in se. Whether a course of conduct ends in a charge of dangerous driving or a charge of manslaughter is often a matter of luck, with the defendant’s moral guilt the same in both cases.

It is, of course, evidence for the defence tha,t the \ supporters of the proposal have in mind. It may be

questioned whether, even if the alteration were made, it would be of any substantial benefit to accused persons. It is the general experience that in a matter of any importance no one competently advised will rest his case upon evidence taken on commission if it is practically possible to bring the witnesses into Court. Such evidence is used to a certain extent in minor civil actions in the Magistrates’ Courts, and probably these actions comprise a large proportion of those in which, through no blame attachable to the Court or the advocates, something less than justice is done. Evidence on commission, when it comes to be read by or to the trial Judge, generally has a cut and dried effect. Necessarily given out of its logical sequence, it frequently fails to deal with points brought out in other evidence in the case, to which the attention of the witness could be better drawn if he were testifying at the trial. Its only advantage is that the Commis- sioner is generally reluctant to give a definite decision on issues of inadmissibility, and contents himself with noting objections for the trial Court to settle ; so that even though the question be ruled out, the answer gets in, if no further than to the subconscious mind of the conscientious Judge. The general and proper distaste of all tribunals to decide the weight that should attach to evidence that it has not heard is seen in the general refusal of Courts of appeal to settle questions of credibility over the head of the trial Judge. In a class of case where conflict of evidence as to facts is frequent, an attempt to decide on evidence taken on commission would be particularly undesirable. Credibility so much depends on the way in which the evidence falls from the very lips of the witness. Should the proposal become law, if it is to be made any great use of it will often be necessary to ask a Magistrate to treat as the deciding factor evidence which he has not heard delivered. Only very sanguine counsel could make such a request with confidence.

That the proposal is distinctly “ class legislation ” may not be enough to condemn it at the present time. The stronger objection is that it alters a salutary general rule for a purpose that must for the most part prove futile.

Meanwhile, the motorist may turn to the Fisheries Act and the Animals Protection and Game Aot, and reflect that he is not nearly as badly-off as he might be.

There is nothing in the Motor-vehicles Act or the regu- lations thereunder to authorise the seizure, and empower the forfeiture, of “ all boats, engines, instruments, appliances, and devices which are being used, or are intended to be used, contrary to the provisions of this Act.”

Bench and Bar. Mr. J. O’Shea’s many friends are glad to see him back

at the Wellington City Solicitor’s office after his recent illness.

Mr. R. W. Bothamley was recently admitted as a solicitor by Mr. Justice Ostler, on the motion of Mr. G. G. G. Watson.

Mr. J. S. Barton, SM., who for the past two years has been one of the Commissioners at Napier, has resumed his duties at the Magistrates’ Court at Wellington.

An amalgamation of practices has been effected by Messrs. Goulding and Rennie, and Messrs. Cox and Cox. The firm will be known as G-oulding, Rennie, Cox, and cox.

Mr. C. A. L. Treadwell has received many congratula- tions on his entry into public life as a member of the Wellington Hospital Board to which he was elected at the recent poll with over eleven thousand votes to his credit.

Among recent admissions at Wellington as barristers and solicitors are Mr. I. D. Campbell, on the motion of Mr. N. A. Poden, and Mr. W. S. Harris, on the motion of Mr. A. J. Luke, by Mr. Justice Blair and Mr. Justice Ostler respectively.

Considerable interest was evinced last week in the appearance of Miss Julia Dunn, LL.M., as junior to Mr. H. H. Cornish. Miss Dunn was the first lady barrister to be seen robed in the Wellington Courts. Appropriately enough, the action was for damages for alleged misrepresentation arising out of the sale of a “ beauty parlour.”

The legal partnership which has been carried on at Christchurch, and also at Kaiapoi and Rangiora, under the firm name of Papprill, Salter, and Corcoran, has been dissolved. Messrs. E. E. Papprill, E. J. Corcoran, and T. K. Papprill will continue to practise at the same addresses under the firm name of Papprill, Son, and Corcoran. Mr. G. S. Salter will in future practise on his own account at Christchurch.

There is general regret over the death of Mr. P. H. Harper, SM., who was resident at Gisborne since 1929. He died at Christchurch on May 7, after an operation, following injuries sustained in a fall over a cliff while fishing. The late Magistrate was born at Papanui, in 1882, a son of Mr. George Harper, O.B.E. Ho was educated privately and at Christchurch Boys’ High School, and practised as a b3rrister and solicitor at Levin from 1907 to 1929. He served in the South African War with the 8th N.Z.M.R., and in the Great War with the Main Body of the New Zealand Expedition- ary Forces, returning to New Zealand as major. He leaves a widow, two sons, and one daughter.

128 New Zealand Law Journal. May 23, 1933

New Zealand Conveyancing. --

Transfer by Liquidator of Private Company in Voluntary Liquidation.

By S. I. GOODALL, LL.M.

1. Memorandum of Transfer in Fee-simple by Liquidator of Private Company in voluntary liquida- tion.

2. Declaration by former secretary in proof of facts establishing voluntary winding-up of company and appointment of liquidator.

(See particularly the following : (1) Sections 91 (1) (a) and (b), 92, 168 (6), and 220 (b) and (c) of the Companies Act, 1908. (2) Pa.cey v. Premier Drapery Co., Ltd. 119281 N.Z.L.R. 14. (3) In re Clayton and Buscke, Ltd. [1913] 33 N.Z.L.R. 245. (4) In re Flax Properties, Ltd. [1931] N.Z.L.R. 847.)

1. Memorandum of Transfer.

Under the Land Transfer Act, 1915. MEMORANDUM OF TRANSFER.

WHEREAS BLANK LIMITED a Company duly incorporated under the Companies Act 1908 (as a private Company) and having its registered office at

(hereinafter called “ the Company “) is regis- tered as the proprietor of an estate in fee-simple subject however to such encumbrances liens and interests as are notified by memoranda underwritten or endorsed hereon in ALL THAT etc. situated etc. AND WHEREAS by an entry in the minute-book of the Company dated the day of 19 and duly signed by three-fourths of the members of the Company holding in the aggregate three-fourths of the shares in the capital of the Company and published in the New Zealand Gazette Number of the day of 19 at page it was resolved that the Company should be wound up voluntarily under the Companies Act 1908 and that X.Y. of etc. (hereinafter called “ the Liquidator “) be and he was thereby appointed liquidator for the purposes of such winding-up. [OR WHEREAS at general meetings ofdtFopmpany duly convened and held on the a 19 and the day of 19 respectively a special resolution was duly passed and confirmed that the Company be wound up voluntarily under the Com- panies Act 1908 and that X.Y. of etc. (hereinafter called “ the Liquidator “) be and he was thereby appointed Liquidator for the purposes of such winding- up.1 [OR WHEREAS at an extraordinary general meeting of the Company duly convened and held on the day of 19 an extraordinary resolution was duly passed that it being proved to its satisfaction that the Company could not by reason of its liabilities con- tinue its business and that it was advisable to wind up the same the Company therefore be wound up volun- tarily under the Companies Act 1908 and that X.Y. of etc. (hereinafter called “ the Liquidator “) be and he was thereby appointed Liquidator for the purposes of such winding-up.] AND WHEREAS the said land being part of the property of the Company has for the consideration hereinafter

appearing been sold at auction to J.K. of etc. (herein- after called “ the Transferee ") Now THEREFORE in consideration of the sum of E paid to the Liquidator by the Transferee (the receipt whereof is hereby acknowledged) the Company by the direction of the Liquidator DOTH HEREBY TRANSFER and the Liquidator DOTH HEREBY TRANSFER AND CONFIRM unto the Transferee all the estate and interest of the Company in the said land subject as aforesaid. IN WITNESS etx.

MENORANDA OF ENCUMBRANCE. (1) The fencing covenant etc. (2) The party wall and other rights created by etc. (3) Memorandum of Mortgage Number etc. THE COMMON SEAL etc. SIGNED etc. Correct etc.

2. Declaration by Former Secretary. I A.B. of etc. do solemnly and sincerely declare as follows :

1. I was from the day of 19 to the day of the passing of the resolution hereinafter mentioned the secretary of BLANK LIMITED a Company duly incorporated under the Companies Act 1908 (as a private Company) having its registered office at

and carrying on business there and elsewhere iLS (hereinafter called “ the Company “).

2. By an entry in the minute-book of the Company dated the day of 19 and duly signed by three-fourths of the members of the Company holding in the aggregate three-fourths of the shares in the capital of the Company and published in the n’ew Zealand Gazette Number of the day of 19 at page it was resolved that the Company be wound up voluntarily under the Com- panies Act 1908 and that X.Y. of etc. be and he was thereby appointed Liquidator for the purposes of such winding-up. [OR 2. At extraordinary general meetings of the Company duly convened and held on the of 19 and the

day day of 19

respectively a special resolution notice whereof was published in the New Zealand Gazette Number of the day of 19 at page was duly passed and confirmed that the Company be wound up voluntarily under the Companies Act 1908 and that X.Y. of etc. be appointed Liquidator for the purposes of such winding-up.] [OR 2. At an extraordinary general meeting of the Company duly convened and held on the of

day 19 an extraordinary resolution notice where-

of was published in the New Zealand Gazette Number of the day of 19 at page was

duly passed that it being proved to its satisfaction that the Company could not by reason of its liabilities continue its business and that it was advisable to wind up the same the Company therefore be wound up voluntarily under the Companies Act 1908 and that X.Y. of etc. be and he was thereby appointed liquidator for the purposes of such winding-up.] AND I make this solemn declaration conscientiously believing the same to be true and by virtue of the Justices of the Peace Act 1927.

DECLARED etc.

May 23, 1933 New Zealand Law Journal. 129

Australian Notes. BP WILFRED BLACKET, K.C.

A Rift in the Federal Lute. A two to one vote in West’ern Australia in favour of Seoession is a serious portent, for the Australian citizen when aroused from his habitual lethargy concerning political affairs is apt to be impatient of “ each dull delay ” that prevents him from getting what he thinks he wants. It is, of course, quite true as has been complacently and lengthily stated by many persons who are quite willing that it should be known that they are learned in our constitutional law, that “ the vote has no legal signific- ance,” but this fact is certain to add intensity to the impatience of the majority who now have ascertained- and possibly greatly to their own surprise-the vehemence of the demand for Secession. Before our “ erring Sister ” could depart in peace, Acts supported by absolute majorities in the Federal Parliament and in a majority of the States would have to be enacted, and seven referenda would require to be taken, and these proceedings would quite likely involve three years’ delay. Whether the Secessionists whose numbers were doubtless largely augmented by the mere announce- ment of the vote will be loyally tolerant of Federal authority meantime remains to be seen.

Australia’s Museum of Curiosities. If at times it may be thought that there is too much New South Wales in these Notes my justification must be that this is the State where all the weird and wondrous things occur, and where all the incredibly astounding politicians, and other human phenomena have their habitations. In proof whereof, in “ this and the next ” as they say at the ponies, I record two extraordinary tales. In the first of these one Oliver and several or more others were indicted at Newcastle for riot and assault. The case was of very simple nature. The defendants, Communists, were charged with having resisted the police in the eviction of a tenant. The cottage was fortified with barbed wire entanglements and other obstacles, and blows were struck with sticks and other weapons and the only question was one of idemity. On trial at Newcastle the jury disagreed as to ten of the accused and the venue was changed to Singleton, Mr. Evatt instructed by Miss Jollie Smith being for the defence. The trial began in January, and after some days was adjourned to February 27, as one of the accused had to be operated upon for appendicitis, as mentioned on p. 71 ante. Then the hearing was resumed, but on April 4 another of the accused had to be operated on for appendicitis-is it infectious ?-and the case was adjourned again till May 8, so for four months at least the jurors who go home after the Court adjourns will have to be exposed to annoyance by persons who want to talk to them about the case. No suggestion of discharging the invalid defendant from the indictment, and proceeding against the other nine, was made.

But the most wondrous thing about the case has yet to be told. This is that Premier Stevens for some inscrutable reason agreed that the State should pay all the costs of the defence on this trial, and did so up to April 10. Then there was a firm announcement that the Government would not pay any more, but this was followed two days later by a still firmer announcement that “ the Government will continue to provide funds

for the defence until further notice.” The last three words are ominous in view of the fact that Mr. Evatt is dealing with the case of each defendant separately, and spoke for more than a week on behalf of the first one. He has now been sp*eaking for 76 hours, has not yet finished his remarks on behalf of the fourth man, and has six more addresses to follow. Quite possibly the case may end by August next, “the Government continuing to provide funds for the defence until further notice,” but where, oh where, outside New South Wales could such things be done and performed, or tolerated 1

Tales of Hoffman. This is the other tale of doings that could only have happened in Funny New South Wales. Mrs. Beech had parted from her husband and thereafter lived for many years with a man whose name was Pember but had been altered to Burke “ because of a lot of trouble with the military authorities.” She had recently obtained a decree nisi against her husband, but the Crown Solicitor came to hear about it and the rest was silence. Then in January, 1932, Mr. Hoffman “ came into her life ” as the young girls of our period are wont to say. He also was married and at the time our story opens his wife was pursuing him with pro- ceedings for maintenance, but his love suit, afterwards changed into a law suit with Mrs. Beech, prospered to such an extent that he sometimes wrote two or three love letters a day to ‘. the dearest woman that I know.”

Hoffman then agreed to pay Mrs. Beech f500 under a written agreement providing for repayment of the amount with 520 interest at the end of twelve months, Mrs. Beech stipulating further “ that if I allow or let a person named Burke,” -note the fine contempt of the phrase--“ live or be on premises owned or rented by me, or be in my company ” then the 2520 should be repayable within seven days. Mrs. Bishop, Mrs. Beech’s married daughter, approved of the transaction because Burke had treated her mother badly and she thought that Hoffman would “ make her mother’s life brighter.” She thought the %500 was a gift. Mrs. Beech said she “ was willing to sell herself for f500,” and it certainly must be conceded that the price was a good one, and proved her knowledge of the art of salesmanship. Unfortunately the course of true love jolted disastrously after the money was paid over, for Mrs. Beech only paid two short visits to the Hoffman home, and spent the rest of her time with “ the person named Burke,” and Hoffman sued for his 5520. Her second plea was that the money was paid for an im- moral purpose, and her third plea that the agreement was that she should cease to cohabit with Burke and should cohabit with Hoffman and that she had performed her agreement. The jury having these singular actions for their consideration capped the climax by finding a verdict for the plaintiff.

The Candle in the Pumpkin. Because of the notorious infirmity of human nature it has always been thought desirable to discover some way of compelling members of Parliament to vote straight. Undated resignations to be handed in by the janizary of the party have been a common means to this end for many years past in Australia, and at the recent South Australian Elections it is asserted that some candidates upon selection were compelled to sign promissory notes for large sums, the document being not necessarily for publication but as a guarantee of good faith. lt surely must be commonly known now even to politicians that an un- dated resignation may always be cancelled and authority to present it withdrawn, and that promissory notes given as described are worth less than the duty stamps they bear, but still the evergreen farce goes on.

130 New Zealand Law Journal. May 23, 1933

The Late Mr. P. H. Harper, S.M. Gisborne’s TribG His Memory.

At the Magistrate’s Court on May 8, members of the profession gathered to pay tribute to the memory of the deceased Magistrate. Mr. J. S. Wauchop, as Presi- dent of the Gisborne District Law Society, said that the Court had assembled to pay its last respects to a Magistrate who was well beloved by all with whom he came in contact-even by those upon whom he had to pass sentence. “ We as members of the legal pro- fession,” he added “feel that we have lost not only a well beloved Magistrate, but a dearly-beloved friend.

The speaker continued : “ In the midst of our sorrow we rejoice to think that a real man has gone to his last rest covered with honour. Mr. Harper came from one of the oldest and most highly respected families in Christchurch. His grandfather was the first Primate of New Zealand, and Bishop of Christchurch, and his father is the oldest member of the Bar in Christchurch. Mr. Harper was anxious to reach Christchurch to join in the celebrations of his father’s ninetieth birthday, and it seems strange that his son in the prime of life should be struck down when his father lives on still with such great years and honour. Mr. Harper was one of a family whose one object was service to country. He had hardly left school when he went to the Boer War, and came back still a boy. In Wellington, during the big strike, he volunteered to assist in keeping order, and while the ferry steamers were held up he acted as a volunteer stoker. Then when the Great War came he was in the forefront again.

“ Did any one of us ever hear him speak of his service 12 Not one. He was a man in every respect of the word, and his great qualities were service, courage, patience and kindliness,” the speaker proceeded : “ It was by his great kindliness of heart that he .endeared himself to us. Many may have thought that he erred on the side of leniency, but there are many who bless the name of Philip Harper for the kindly nature of his sentences, and for the opportunity he gave them to live amongst us without the taint of prison. It was the immediate woe of a prisoner that struck him before the vices. To the prisoner before him he extended pity, and was charitable beyond words.

“ We say this morning that we regret his passing, but we admire to the full the life he led, and know that it will assist us to carry out any ideals we may hold, for he was prepared to work and suffer to achieve his ideals. To his sorrowing widow and children we extend our heartfelt sympathy. As time goes on the first keen grief will pass somewhat, and their hearts will lift and rejoice in the great life he lived solely for the service of his country.”

Inspector O’Halloran following Mr. Wauchop said : “ I do not think I have ever met a more kindly and

fair Magistrate during my 36 years in the Police Force.” The chairman of the Bench, Mr. Clayton, spoke of the

sorrow which the whole community felt in the loss of Mr. Harper. “ In the simplest words,” concluded Mr. Clayton, “ we can say that he served his country and was a just man.”

Mr. J. G. L. Hewitt, SM., expressed his sorrow at the passing of his brother Magistrate. He said : “ Mr. Harper in peace did his duty with credit, and in war he did his duty with honour and distinction. What more could be said of any man 1”

Legal Literature.

N.Z. Statute and Case-law to Date.

Butterworth’s Annotations of New Zealand Statutes, 1929-1933. Supplement No. 4 ; pp. xxxii, 531.

It is a creditable performance to bring out the com- plete annotations of the Statutes within seven weeks of the conclusion of the last Session of the Legislature, and before the Annual Statutes appears. The A nnota- tions have served a valued purpose in past years, and the current volume, by providing an up-to-the-minute amendment of the law, supplementary to the statutes given in the Reprint of the Public Acts of New Zealand, 1908-1931, improves on the good work already in evidence.

There arc several notable features of the 1932-33 Annotations volume :

(i) The amendments of statutes effected by the 1932- 33 legislation are here found complete. There is no halting by the way, and giving the profession a half-done job by stopping the statutory amendments at the advent of the 1932 Christmas holidays which caused a cessation of the Session’s activities, to be resumed later. Anyone who has followed the recent legislation is aware that the activity of enactment reached its peak after that resumption, and it would be dangerous to rely on part-session amendments which, in many cases, were re-amended later.

(ii) The new section of the Annotations giving, as a supplement to the Reprint of Statutes, all the amend- ments to the end of the 1932-33 Session, are in the capable hands of the Parliamentary Law Draftsman. Their accuracy is, therefore, unquestionable. The amendments are succinctly indicated, and with the corresponding page of the Reprint beside one, make it simplicity itself to ascertain the law to date. There is no danger of anything being missed, or anything being misinterpreted.

(iii) The Case-section of the current Annotations has increased in extent from 130 pages in 1931 to 188 pages in the latest volume. These give references to the New Zealand Law Reports, Gazette Law Reports, and N.Z. LAW JOUENAL to the end of their last annual volumes.

A useful reminder of the manner of extracting desired information from the main volumes of the Butterworth Annotations, the Reprint of Statutes, and the 1932-33 Annotations is provided. In this, prac, titioners can see at a glance the simple methods that can be applied, with the minimum of time, to ascertain the case-law on any section of an Act as it, in its turn, has been amended down to the end of the last Session of Parliament.

The Regulations under all statutes and the Local and Personal Acts also find place in this complete publication.

May 23, 1933 New Zealand Law Journal. 131

Assessment of Damages. In Dependency Actions.

-- By W. E. LEICESTER, LL.B.

[Owing to circumstances necessitating a “ remake-up ” of the last issue of the JOURNAL, the following para- graphs were inadvertently omitted from the above article at p. 116, line 3, ante, as follows :]

3. The pecuniary loss need not be actual loss at the time of the death ; it may merely be prospective or probable. The governing principle involves the consideration in these cases of the question as to whether there is evidence of a reasonable probability of pecuniary benefit to the parties if death had not occurred, and, if so, whether this probable benefit has been lost by reason of the death caused by the wrongful act, neglect, or default of the defendant : Pym v. Great Northern Railway Co., (1863) 4 B. & S. 396 Ex. Ch. The jury must assess what the measure of this expectation is- Hetherington v. North- Eastern Railway Co., (1882) 9 Q.B.D. 160 ; but it must be a reasonable expectation. A wife living in adultery and apart from her husband has none : Stimpson v. Wood, (1888) 57 L.J.Q.B. 484. In Harrison v. London and North- Western Railway Co., (1885) 1 T.L.R. 519, where the husband had quarrelled with his wife and for many years lived separate from her, Lopes, J., held as too remote various contingencies in’which the plaintiff might have obtained an interest in his wife’s reversionary estate, as, for instance, in the event of his having instituted a suit for restitution of conjugal rights or his having become a pauper.

The fact of past contribution may be important in strengthening the probability of future pecuniary advantage, but it cannot be a condition precedent to the existence of such a probability-Lord Moulton in Taff Vale Railway Co. v. Jenkins (supra) where a daughter nearing the end of her apprenticeship as a dressmaker would have earned a substantial remunera- tion. On the other hand, where the cost of maintenance exceeded the girl’s wages and no evidence was given of the expectation of future benefits, it was held that damages could not be awarded : Meddan v. Minnis, (1893) 37 So. Jo. 253. But the distinction must be noticed between a mere speculative possibility of benefit and a reasonable probability of pecuniary advantage : in the former case, damages are non- assessable as, for example, in a claim based upon the death of a young child, subject to all risks of illness and accident and whose education and upkeep must impose a substantial burden on his parents for a long period : Barnett w. Cohen [1921] 2 K.B. 461.

4. An enforceable legal right is not essential to found a claim for pecuniary loss. Proof of the ability of the deceased to maintain the claimant, or of the fact of support or assistance, is sufficient : Weems v. Mathieson, (1861) 4 Macq. (H.L.) 215. The Act does not exclude monetary loss incurred by replacing services rendered gratuitously by a relative if there was a reasonable prospect of their being rendered freely in the future but for the death : Berry v. Humm and Co., [1915] 1 K.B. 627. Mr. Justice Conolly in Greymouth-Point Eliza- beth Railway and Coal Co. v. McIvor, (1898) 16 N.Z.L.R. at p. 266, thought that the possibility of remarriage should not be taken into consideration in the assess-

, ment of damages, but this view, it is submitt,ed, is open to doubt and seems not to have been held by Blair, J., in Coulston v. Grose (supra) :

“A deceased wife io replaceable, and cases are not un- known when replacement has taken place within remarkably short periods. The element of anguish for loss of a loved one being absent, the jury would be entitled to adopt the view that the husband could easily replace his wife with another, and the jury were equally entitled to adopt the view that as far as the children were concerned whatever care and atten- tion had been bestowed on them by their mother could be provided by a step-mother.”

The probable benefits accruing from a charity fund should be disregarded : Greymouth- Point Elizabeth Railway a,nd Coal Co. v. McIvor (supra).

Forensic Fables. MR. PUMPKIN, K.C., M.P., THE PORTRAIT

AND THE WEDDING BELLS.

To Link Together Cause and Effect is not Always an Easy Matter. But there is no Doubt that the Brush of the Artist who Painted the Portrait of Mr. Pumpkin, K.C., M.P., Set the Wedding Bells Ringing.

Mr. Pumpkin, K.C., M.P., was an Elderly Gentleman whose Personal Appearance was on the Ordinary Side. His Features were Wanting in Regularity, and his Figure did not Recall that of the Eros now Happily Restored to Piccadilly Circus. He was accordingly Much Relieved when the Lady Artist (Cheap) who

%z§s&.l’/ S%iS&\

had been Commissioned by his Constituents to Paint his Portrait Produced a Very Pleasing Presentment of a Handsome Advocate in Wig and Gown. The Only Fear of Mr. Pumpkin, K.C., M.P., was that his Friends might Say that the Portrait was Unduly Flattering. Therefore, when his Friend Mrs. Plumply (Widow) Expressed the View that the .Likeness was Excellent, but (if he would not Mind her Saying So) that the

132 New Zealand Law Journ& May 23, 1933

Artist had Not Done Justice to his Eyes, and that it was Positively WicEed to have Hidden his Beautifully- shaped Head under a Wig, Mr. Pumpkin, K.C., M.P., Plucked Up Courage and Asked Mrs. Plumply to be his.

MORAL : Lay It On Thick.

Practice Precedents. ,--

Attendance of Prisoner to Give Evidence.

The following are appropriate documents to be furnished to a Judge of the Supreme Court for an Order for the attendance of a person in Custody to give evidence at the trial of an action or other pro- ceedings. In this instance it is assumed that a “ prisoner ” is required to give evidence in a Criminal Trial. Sections, 24 and 25 of the Evidence Act, 1908, need no explanation. Reference may be made to Rule 175 of the Code of Civil Procedure, Stout and Sim’s Supreme Court Practice, 7th Ed. p. 153. See also Rule 176.

MOTION FOR ORDER FOR APPEARANCE OF WITNESS.

IN THE SUPREME COURT OF NEW ZEALAND. . . . . . . . .District. . . . . . . . .Registry.

IN THE MATTER of the Evidence Act, 1908, AND

IN THE MATTER of an Indictment preferred by His Majesty the King against

charged with Theft. Mr. of counsel for the accused TO MOVE before the Rt. Hon. Chief Justice of New Zealand in Chambers, Supreme Courthouse on day the day of , 19 , at 10 o’clock in the forenoon or so soon there- after as Counsel can be heard FOR AN ORDER authorising the Gaoler at His Majesty’s Prison at to produce to give evidence on the trial of the above-named accused for Theft, UPON THE GROUNDS that the said is a necessary and material witness on behalf of the said

at the said Trial AND UPON THE FURTHER GROUNDS set out in the affidavit of filed in support hereof.

Dated at this day of 19 Counsel for ‘accused.

Certified pursuant to the Rules of Court to be correct. Counsel moving.

Reference : His Honour is respectfully referred to the Evidence Act, 1908, ss. 24 and 25, and to Rs. 175-6 of the Code of Civil Procedure.

AFFIDAVIT IN SUPPORT. (Same heading.)

1, of in the Dominion of New Zealand Solicitor make oath and say as follows :-

1. That I am the Solicitor for the above-named accused wherein the said accused is charged with theft which charge is to be heard at the Sessions of the Supreme Court commencing at on the day of 19 .

2. That is at present detained in His Majesty’s Prispn at serving a sentence of years for Theft.

3. That the said is a necessary witness at the trial of the said on whose behalf he can give material evidence.

SWORN, etc.

I

I 1

1

ORDER TO GAOLER TO PRODUCE WITNESS. (Same heading.)

day the day of 19 . UPON READING the Motion filed herein for an Order author- ising the Gaoler at His Majesty’s Prison at to produce

to give evidence as a witness in the above matter and UPON READING t,he affidavit of filed in support thereof I DO ORDER that the said Gaoler at the said Prison DO PRODUCE the said to give evidence at the Trial of the above-named upon a charge of Theft at the Supreme Courthouse at on such date as shall be notified to the said Gaoler AND I DO FURTHER ORDER that a proper undertaking be given to the said Gaoler for the due payment of all expenses of and incidental to carrying out the order and returning the said to Gael.

Judge.

Rules and Regulations. Mortgagors Relief Act, 1931. Amended Regulations Te Leases

of Native Lands.-Gazette No. 33, May 4, 1933. Customs Act, 1913. Duties in force in the Cook Islands.-

Gazette No. 33, May 4, 1933. Hawke’s Bay Earthquake Act, 1931. Hawke’s Bay Earth-

quake Regulations re Land Agents’ and Auctioneers’ Licenses. -Gazette No. 33, May 4, 1933.

Municipal Corporations Act, 1920 : Hawke’s Bay Earthquake Act, 1931. Order in Council discharging from Office the Special Committee of Management of the Napier Borough.- Gazette No. 33, May 4, 1933.

Motor-vehicles Insurance (Third-party Risks) Act, 1928. Motor- vehicles Insurance (Third-party Risks) Regulations, 1933.- Gazette No. 33, May 4, 1933.

Public Service Act, 1912. Amended Regulation providing for payment of Fee when lodging Appeal.-Gazette No. 33, May 4, 1933.

New Books and Publications. Kenny’s OuQines of Criminal Law. Fourteenth Edition,

1933. By Courtney Stanhope Kenny. Revised by G. Godfrey Phillips. (Cambridge University Press). Price 21/-.

Divorce, Nullity and Separation, A Simple Explanation of the Law and Procedure. By Alfred Skelt. (I. Pitman & Sons Ltd.). Price 7/-.

Parish Councfllor’s Guide. A Complete Guide fo the Duties, Powers and Liabilities of Parish Councils. Fourth Edition. By R. C. Maxwell, O.B.E., LL.D. (Lond.). (Shaw & Sons Ltd.). Price S/-.

The Patents and Designs Act (Including the Patents and Designs Acts 1907-1932). By Lord Marks and R. A. Wolstenholme. (Sweet & Maxwell Ltd.). Price 17/6d.

blunicipal Elections. Volume 3. Twentieth Edition. By -. Rogers. (Stevens & Sons Ltd.). Price 21/-.

Palmer’s Company Precedents, Part 2, Winding-up. Fourteenth Edition. By A. F. Topham, K.C. (Stevens & Sons Ltd.). Price 84/-.

Eases in Constitutional Law. Second Edition. Revised by D. L. Keir and F. H. Lawson. (Oxford University Press Ltd.). Price 33/6d.

Precedents of Pleadings in Tort in Action in the King’s Bench Division of the High Court of Justice. By R. W. Jackson, B.A., LL.B. (Sweet & Maxwell Ltd.). Price 6/-.

Dumsday’s Law Relating to Dairies, Cow-sheds and Milkshops. Fifth Edition. (Haddow Best & Co.), Price 21/-.