May 4, 1937 New Zealand Law Journal. 105

New Zealand

“ The law is the highest inheritance which the King hath ; for by the law he and all his subjects are ruled, and if there was no law there would be no King and no inheritance.”

-YEAR BOOK, 1441. -

Vol. XIII. Tuesday, May 4, 1937. No. 8

The Significance of the Coronation Ceremony.

N .- EXT week, the attention of all the peoples of t’he British Dominions will be centred on the ceremony

of the coronation of Their Majesties King George VI and Queen Elizabeth. However picturesque that cere- mony will undoubtedly be, it has no legal importance or effect ; though, as we hope to show, it has a moral significance of its own, which, in a particular way, is of personal application to us all.

Though the King’s crowning has had no practical legal import for the last three centuries, yet, to the student of legal history and constitutional development, the forthcoming coronation ceremony is of considerable interest.

As we all know, the constitution by which British peoples have been governed since Saxon times has been a legal growth, unwritten except for certain great political documents which serve as finger-posts on the road of development, which, as century followed century, was marked out by the Estates of the Realm according to their will, until, as the kingly power became more and more limited, “ the old nobility of birth gave way to a new nobility of personal relation to the sovereign.”

In Saxon times, the Witan chose and elected the ruler. The Witan, or, to give it its popular Saxon term, the

Witanagemot, was an assembly of the leading men of the realm, called by the King at his pleasure or by the Justiciar in the event of the King’s death. It appears to have been held in public, and to its deliberations all free men had access. King Edward the Confessor was chosen King by “ all the people,” and Earl Godwine made his speech at the Witan “ before the King and all the people of the land.”

As kingship developed, and the Wessex kings became Kings of all England, the Witan became a larger body. In its composition and duties it closely resembled its successor, the Anglo-Norman Commune Concilium, the point of difference being the feudal ties which bound its members. The Witan exercised wide legisla- tive, executive, and judicial powers. It elected the King, and on occasions it deposed him. But, as Liebermann points out in his National Assembly of the Anglo-Saxon Period, the Witan did not become a central government, as it failed to organize itself as an independent national institution, to determine rules as to how it should be summoned or where a meeting should take place, or to define its sphere in regard to

the King or the Church. At no time could it be said to have been able to express a representative or organ- ized popular unity. The efficiency of the government of the nation depended on the person and character of the King whom it thought fit to elect.

ELECTED SAXON KINGS.

The Witan usually did not seek a King outside the members of the royal family, but recognized no limita- tion, as t’o the selection of an individual member of it, by any rule or custom of hereditary succession. Though royal birth was but a preliminary qualification, the election by the Witan gave the people’s chosen one the sole right to become King ; but it did not make him King. The ceremony of coronation, as Anson puts it, confirmed the election with the support of the Church, and the oath of fidelity sworn as part of that ceremony gave substantial force to hereditary, legal, and religious claims. The consecrating effect of the cere- mony of coronation gave the elect the plentitude of kingship. As Freeman says in his Growth of the English Constitution,

“ The King-elect was like a Bishop-elect. The weom- mend&ion of the Crown, the election of the Chapter, and the confirmation of the Archbishop, give a certain man a right to a certain see, but it is only the purely religious right of consecration which makes him naturally Bishop of it. So it was of old with a King. The choice of the Witan made him King-elect, but it was only the ecclesiastical crowning and anointing which made him King. And the ecclesiastical ceremony involved a further election. Chosen already to the civil office by the n&ion in its civil character, he was again chosen by the Church-that is, by the nation in its religious character, by the clergy and people assembled in the church where the crowning act was to be done.”

It appears, therefore, that the coronation,, in Saxon times and later, was the acceptance of the King by the nation in its religious aspect. There was a practical reason for this, as well as the religious one. Although the bishops were members of the Witan, they were there as representatives of their several territorial sees rather than of the Church as a whole. From the com- pletion of England’s conversion to Christianity, the people knew but one Church. It was the one corporate body in which all the peoples of Britain found a common unity. This unity prevailed in the nation long before even unstable political unity had come about with the emergence into importance of the Kings of Wessex. The Witan elected the King, but the Church alone could express the nation’s recognition of the Witan’s choice. And the acceptance of that King by the Church was shown to an unlettered populace by the religious ceremony of coronation which all men could see or know. The Church spoke in the ceremony for all the people. Thus was effected a nation-wide recognition which the Witan had no machinery of government to bring about, but which the one available corporate unity of all the people did in fact confer.

As we get nearer to our own times, we shall see that when Parliament became the one body that was repre- sentative of the people as a whole, it elected the King ; and, at the same time, it gave him the nation’s recogni- tion, thus exercising a sovereignty which the Church, both in Saxon times and later, did not profess to have.

Prior to the Norman Conquest, no man had a right to the Crown until he had been called to his office by the assembly of the nation ; no man was actually King until his admission to the kingly office was con- firmed by the consecration of the Church. There was accordingly a real interregnum between the death of one King and the ooronation of another one. The

106 New Zealand Law Journal. May 4, 1937

King’s peace was meanwhile in abeyance, and the Justiciar maintained the peace of the kingdom in the interval that preceded the coronation of the new King. We read in the Anglo-Saxon Chronicle that on the death of Henry 1 “ there was tribulation soon in the land, for every man that could forthwith robbed another.”

The first King whose reign is dated from a time earlier than his coronation was Edward 1. Nevertheless, his regnal years are not reckoned from the day of his father’s death, but from the day on which Edward was acknowledged King, he being then out of the kingdom, in Palestine, and there being no opposition to his succession.

When Kings governed as well as reigned, personal qualities were sought in the prospective ruler ; and this required that the electors should have liberty of choice as the best means of securing freedom and good govern- ment. The right to hereditary succession, which in early times had been the result of a preference for the descendant of an anointed and trusted crowned King, became absolute under Norman influences. From the time of Edward I, that right was unchallenged in practice. Later interruptions of strict hereditary succession were revivals of the ancient right of election of the monarch.

TUDOR AND STUART CHANGES. In time, it came about that the right of the Witan to

elect the nation’s King was exercised by Parliament in settling the succession. Thus, without going into the Parliamentary titles of various intermediate Kings, Henry VII reigned by Parliamentary title and a declaration that the “inheritance of the Crown should abide in Henry the Seventh and the heirs of his body for ever, and in none other” (which has been literally carried out as every succeeding English sovereign to the present day has been a descendant of Henry VII). But Henry VIII, in making provision for his coronation, declared that his election by the people in ancient form, and its confirmation by ecclesiastical acceptance and consecration, should be contemporaneous on the occasion of his coronation.

Under the influence of the changed ideas that came with the Reformation, the King as representative of the State began to hedge himself with an absolutism hitherto unknown : he himself was the State, and he could dispose of the Crown as he wished, Thus, Edward VI, Mary, and Elizabeth reigned by virtue of their father’s will ; but medieval ideas of the King’s derivation of his title from the people was not lost sight of by the absolute monarch. He had the authority of Parliament which conferred upon him, by the statute, 28 Henry VIII, c. 7, plenary power and authority to appoint, declare, and limit by Letters Patent under the Great Seal or else by his last will, at his only pleasure from time to time thereafter, the Imperial Crown of the Realm of England to such persons in possession and remainder as should be pleasing to him ; and by the later statute, 35 Henry VIII, c. 1, Mary and Elizabeth were put into the entail and reigned by virtue of it. Sir Thomas More, who went to the block rather than swear to the preamble of the oath prescribed by the Act of Supremacy, had no difficulty in swearing to the order of succession, as he rightly held that Parliament could settle the Crown upon anybody, even upon the daughter of Anne Boleyn, an illegitimate child of the King, as upon a complete stranger to the blood royal.

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James 1 claimed to be heir of the kingdom by virtue of his descent from Henry VII, and was crowned before he was acknowledged by the nation. The sovereignty of Parliament was reasserted in the retrospective statute, the Act of Recognition, 1 Jac. I, c. 1, passed by “ this High Court of Parliament, where all the whole body of the Realm and every particular member thereof, either in person or by representation (upon their own free election) are by the laws of this Realm declared to be personally present”-which is an early and compre- hensive definition of Parliament. Up to the passing of that statute, James I had no legal claim to the Crown, as the statute which had given the inheritance to the heirs of Henry VII had been impliedly repealed by Parliament,by the statutes of Henry VIII’s reign.

Charles 1 found to his undoing that he reigned by the will of the people, as the tribunal before which he was arraigned reminded him in these words : “ all his predecessors and he were responsible to the Commons of England.” An assembly of the nation declared the throne was vacant in respect of Charles 1 ; and a similar assembly elected his son, Charles 11, on restoring the monarchy. William of Orange, called to occupy the kingship, summoned his Witan ; as King Edward the Saxon had summoned it before him, and that Witan chose him as King “ as, six hundred years before, another assembly of the Nation had chosen Harold the son of Godwine,” as Freeman puts it. The cycle, he adds, had come around ; the English people had won back again the rights which their fathers had brought with them from their old home beyond the seas. And now, under the rule of an elected King, England made her Crown strictly and permanently hereditary by direct operation of law, the expression of the nation in the words of the Act of Settlement, 12 and 13 Will. 111, c. 2, which entailed the Crown on the Electress Sophia and her heirs.

The circumstances of our history have made ours an hereditary monarchy, just as the circumstances of the history of the United States of America have made that country a federated republic, As Freeman remarks in his Growth of the English Constitution :

“ Under the rule of a convential constitution, when Kings reign but do not govern, the objects which were once best secured by making Kingship elective are now best secured by making Kingship hereditary. It is as the Spartan King said : by lessening the powers of the Crown, its possession has become inconsistent. An elective King could not be trusted simply to reign; he would assuredly govern or try to govern . . . The personal choice of a certain man to be King would in all reason be held to imply that he was personally fit for the work of government . . . No reasonable person will seek to disturb an institution which, like other English institutions, has grown up because it was wanted. Our unwritten Constitution, which gives us an hereditary Sovereign, but which requires his government to be carried on by Ministers who are practically chosen by the House of Commons, does in effect attain the same objects which were sought to be obtained by the alective kingship of our forefathers . . . In our earliest and in our latest system, the King is clothed with an office, the duties of which are to be charged for the good of all . . . In our earliest and in our latest times, the rights of the Crown and the rights of the people are the same ; for it is allowed that the powers of the Crown are to be exercised for the welfare of the people by the advice and consent of the people or their representa- tives.”

His Majesty King George VI reigns by virtue of the Act of Settlement and subject to its conditions as imposed by the Parliament of 1700. It was not by his brother’s exercise of his personal choice of abdication that he succeeded ; for even that voluntary act could not become effective except by its acceptance by the

May 4, 1937 New Zealand Law Journal. 107

statutory expression of the will of his subjects-that is to say, until the Act of Abdication, 1 Edw. VIII, c. 3, became law ; then, by the declaratory effect of that statute, the Act of Settlement became operative to designate his present Majesty the lawful lineal heir.

There followed in Great Britain and in all the British dominions the Proclamation of King George VI to whom had “ solely and rightfully come”’ the Imperial Crown of Great Britain, Ireland, and all other His former Majesty’s Dominions.

THE STATUTE OF WESTMINSTER.

By virtue of the second paragraph of the Preamble to the Statute of Westminster, 1931, which, inter alia, was adopted by the New Zealand Legislature, July 21 and 24, 1931, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, which are united by a common allegiance to the Crown, any alteration in the law touching the succession to the Throne requires the assent of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.

The instrument of abdication took effect by virtue of the Abdication Act passed by the Parliament of Westminster on December 10, 1937 ; but, until the Proclamation publicly made in New Zealand on December 14, Edward VIII might have been regarded as New Zealand’s King. His present Majesty was proclaimed by the Governor-General, the Prime Minister, and the members of the Executive Council of the Dominion, “ assisted by members of both Houses of the General Assembly, Judges and Magistrates, Ministers of Religion, Mayors, Chairman and Members of Local Bodies, and numerous other representative European and Maori citizens here present,” as the Proclamation declared, “ who with one voice and consent of heart and tongue”’ published and proclaimed the present King as their only lawful and rightful liege lord. And so the ancient assemblage, the Witan, meeting to choose and proclaim a new King, had its modern counterpart in the most distant of His Majesty’s dominions, as in the other nations of the British Commonwealth.

It is an unwritten convention of the English con- stitution of modern times that the Crown does not die ; and, in New Zealand, we have written it into the pages of our statute-book in the Demise of the Crown Act, 1908, whereby anything done between the abdication of Edward VIII and the Proclamation of his successor, our present King, is unaffected. His present Majesty is, therefore, de jure in this Dominion for all practical purposes.

our Legislature has been in recess since the passing by the Parliament of the United Kingdom of the Abdication Act. This was “ an alteration in the law touching the Succession to the Throne,” that, as is recited in- the second paragraph of the Preamble to the recent Statute of Westminster, requires “ the assent as well of the Parliaments of all the Dominions

as of the Parliament of the United Kingdom.” What- ever may be the legal effect of that Preamble, and whether Parliament on its assembly will agree to resolutions adopting the Abdication Act or re-enact that statute, His present Majesty is de facto King of New Zealand ; and we can leave it to constitutional purists to find theoretical reasons to the contrary, And his de facto status was given by Proclamation of

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December 14 last, in a manner that, in a number of ways, was similar to the Witan’s election of the King in the Saxon times.

The forthcoming ceremony of coronation does not perfect or add to His Majesty’s status as the King of this or any other Dominion. In Calvin’s Case, (1608) 7 Co. Rep. la, 77 E.R. 377, the Judges declared that “ the coronation is but a royal ornament and solemniza- tion of the royal descent, but no part of the title ” ; and that “ by the laws of England there can be no interregnum without the same.” The legal position is the same to-day as in the reign of James I when that judgment was given ; and no religious ceremony was necessary to give recognition to King George’s accession, or to perfect the plenitude of his succession by regular process of law.

While the civil election of the King has survived in that his kingly right and title are now derived from the people through Parliament, the form of ecclesiastical consecration to the kingly office is a survival without legal effect on his right to exercise the office to which he has already succeeded. The form of the religious character with which, from early Christian times, most nations thought good to clothe their ruler, survives in England with such variations in ceremonial as the change in worship established by Parliament has given to it. But, again to quote Freeman,

“ In modern times it has become a mere form, & pageant impressive no doubt and instructive, but still a mere pageant, which gives the crowned King no powers which he did not equally hold while still uncrowned. His coronation in no way adds to his legal authority, however much it may add to his personal responsibility towards God and his people.”

Notwithstanding its absence of legal effect and its nature as a survival of a ceremony of paramount con- stitutional importance in bygone times, the coronation ceremony is not devoid of moral and symbolical significa- tion of a national and Imperial character, and it has a meaning of its own.

SOLEMN UNDERTAKINGS.

If the Form and Order of the Coronation of His present Majesty be examined, it will be seen that at the beginning of the ceremony the Archbishop of Canterbury presents to the people their “undoubted King.” Then he asks the question “ Wherefore all you who are come this day to do your homage and service, Are you willing to do the same ‘2 ” Thus the King-elect of Saxon times was presented to his people, and they accepted him afresh on his day of Coronation.

Before the beginning of the purely religious rites, in which there is proper recognition that Kings are subject to a higher Power, and the inthronization, come the solemn oaths which oblige the King to respect the laws which the nation itself makes through its Parliament, the King takes the Coronation Oath.

By this, he solemnly promises and swears to govern the peoples of Great Britain, Ireland, Canada, Australia, New Zealand, and the Union of South Africa, of his other Possessions and the other Territories to any of them belonging or pertaining, and of his Empire of India, according to their respective laws and customs. His Majesty then binds himself by a solemn oath and promise to cause Law and Justice, in Mercy, to be executed in all his judgments. Thus, with solemn formality the King promises to his people protection, as they, by their representatives, in consideration of it, have assured him of their loyalty. In a special sense, there is thus made a contract between the Crown and

New Zealand Law Journal. May 4, 1937

its subjects. These solemn undertakings, by which His Majesty binds himself to God and to the nation over which it is his destiny to rule, are not matters of mere form, though his kingship dates not from then, but from the moment of his accession. They constitute a clear contract between King and people, which neither party may violate and go unchallenged.

Here we pause to draw attention to the fact that, in the forthcoming coronation ceremony, for the first time, the overseas Dominions are mentioned by name in the Coronation Oath. This is the result of the passing of the Statute of Westminster since our last crowned monarch was crowned with the Crown of St. Edward, King and Confessor, whose Saxon kingdom of all England has in course of time grown into a world-wide Empire. We did not need the Preamble of that enactment to remind us that “ the members of the British Common- wealth of Nations are united by a common allegiance to the Crown.” That Preamble is a recital, and, as is the way with recitals, it states facts. For the plain truth is that the only point of absolute union in our vast Empire is its possession of a single Sovereign at its head. It is not true to say that there is a link of a common language, for English is not the language of scores of millions of our fellow-subjects ; and it is the language of many millions who are not our fellow- subjects. Parliaments may be all powerful where they hold their sway ; but none of them now has authority throughout the Empire. The link that binds the peoples of British nations and dependencies, wherever they may be, is not the link of common blood or common speech, but the fact of the possession of one Sovereign. And that note of unity is emphasized and brought directly before the notice of all nations without the British Commonwealth by the ceremonies of the Coronation : a fact that is of great importance in the world’s troubled state to-day.

His Majesty George VI reigns by the same right by which his ancient Saxon predecessors reigned and by the will of all his peoples, embodied in the statutory authority which made the crown of Alfred hereditary in His Majesty’s ancestress. And, so, reigning by that right, he, whom we have proclaimed to be our sole our rightful Liege Lord, reigns for the same ends, the common good of all- his peoples over whom the law has made him Sovereign, and by their ‘advice and consent.

To govern according to the law which has its origin in and derives its power from his people’s will, and to execute law and justice, in mercy-these are the solemn obligations to which, sanctified by his oath, the new King binds himself in the course of the ceremony of his coronation. In the performance of these solemn obligations, we know his present Majesty will not fail us.

In his Majesty’s person, we are freely associated with all the other subjects to whom we are united by our common allegiance to him, and, so associated and united, we have a duty of our own. It is ours to assist with diligence and integrity, each according to his opportunities, the fulfilment of His Majesty’s solemn undertakings in our regard. That is the part to be performed by all his subjects, and this correlative duty is of even more direct import for members of the pro- fession of the law than for the members of other classifica- tions of the King’s subjects.

His Majesty and his gracious Consort have the loyalty and humble service of us all.

Vivat Rex!

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Summary of Recent Judgments. FULLCOURT. Wellington.

1937. IN RE SHELLEY (DECEASED), SHELLEY April 7, 19.

Muers, C. J. PUBLIC T&STEE. O&r,- J. Smith, J.

Family Protection-Jurisdiction-Order made with Consent of all Parties, all being a& juris until Parties otherwlse agree or the Court orders-Whether Court has Power to Review- Whether Final, Suspensory, or Interim Order-Family PrO- tection Act, 1908, s. 33.

The Supreme Court has jurisdiction to hear en application pursuant to leave reserved for the review of an order under the Family Protection Act, 1908, made by the Supreme Court by consent of all parties (all being sui jurti) for provision to be made for the widow out of the estate until the parties otherwise agree or the Court otherwise orders ; and the Court may make such provision by its reviewing order ss it thinks fit.

So held by the Full Court (Myers, C.J., Ostler, and Smith, J.J.), for the reasons :

Per Myers, C.J., and Ostler, J., 1. That an order of the Court, embodying an agreement between the parties (all being sui juris) that certain provision be made for the widow out of the estate until the parties otherwise agree or the Court orders, and that, in the meantime, an application under the Family Protection Act, 1908, should not be finally determined by the Court, is not a final order or a “ suspensory order,” but at most an interim order made by consent.

Dictum of Salmond, J., in Welsh V. M&cock, [1929] N.Z.L.R. 673, 687, distinguished.

2. That the Court has jurisdiction to make such an interim ordor if all the beneficiaries are sui juris, and desire a suspension of the administration of the estate in their own interests, and they consent to an interim order with liberty to the plaintiff to apply.

Oulton v. Radcliffe, (1874) L.R. 9 C.P. 189, applied. Peacock v. Bell and Kendall, (1667) 1 Wms. Saund. 69,

85 E.R. 81, referred to. In re Hunter, Hunter v. Hunter (No. 2), [1933] N.Z.L.R. 789,

distinguished. Per Smith, J., 1. That the Court has power to make

“ provision ” by making an interim consent order with liberty to review and with liberty to make such further or other order as in the circumstances may be just ; and, if the parties at any stage do not agree upon a further or a final order, the Court can test the test&or’s failure of moral duty in the light of the circumstances as they existed at the date of his death and the reasonable probabilities as to the future changes of those circumstances, treated not as a matter of inference but as being revealed by the subsequent course of events.

In re Birch, [1929] N.Z.L.R. 463, referred to. 2. That, alternatively, the word L‘provision” in s. 33 of the

Family Protection Act, 1908, is wide enough to include orders by consent with liberty to apply for review, there being oon- tained in such orders an express or implied agreement that, if the parties shall not agree upon the terms of a further or final order, the Court can have regard to events subsequent to the test&or’s death in making its further or fine1 order.

Semble, per Smith, J., If the jurisdiction to make further provision out of the estate conferred upon the Supreme Court by s. 33 of the Family Protection Act, 1908, can only be exercised by orders which are actually and presently made end which are final in their effect, there is no jurisdiction to make what is called an ” interim order ” or ” an order until the further order of the Court,” whether all the parties, being sui juris, consent or not.

Dictum of Salmond, J., in Welsh ‘u. Mulcock, [1924] N.Z.L.R. 673, 687, 688, referred to.

Counsel : F. W. Ongley, for the plaintiff ; Broad, for the Public Trustee; Parry, for the remaindermen.

Solicitors : Ongley, O’Donovan, and Amdt, Wellington, for the plaintiff ; Public Trust Office Solicitor, Wellington, for the Public Trustee ; Buddle, Anderson, Kirkoaldie, and Parry, Wellington, for the remaindermen.

Case Annotation’s : Oulton v. Radclqfe, E. & E. Digest, Vol. 16, p. 121, para. 198 ; Peacock zi. Bell and Kendall, Bid., p. 102, para. 26.

May 4, 1937 New Zealand Law Journal. 109

COURT OF APPEAL., Wellington. )

1937. Mar. 18 ; April 19. i- Ostler, J. Smith, J. Johnston, J. I

HANCOCK v. STEWART.

Negligence-Road Collisions-Motor-Cyclist with Adequate Light colliding with Stationary and Unlighted Vehicle-Failure to see such Obstruction-Motor-vehicles Regulations, 19.33 (1933 New Zealand Gazette, 351), Reg. 3 (3).

Where a motor driver or rider claims damages for having run into an unlighted obstruction on the road, a verdict in his favour may be upheld only where he can prove facts which the Court thinks might be considered by the jury to offer a reasonable excuse for his failure to see the obstruction in time to avoid it, except where there are circumstances which a jury might reasonably consider to be something in the nature of a trap ; and, in New Zealand, in view of the statutory regula- tions as to lights on motor-vehicles, a plaintiff motorist must prove some peculiar or unusual circumstance which would justify a jury in excusing him for such failure.

Butterfield v. Forrester, (1809) 11 East 60, 103 E.R. 926, Findlater v. Dwan, [1932] N.Z.L.R. 204, Tart v. G. W. Chitty and Co., Ltd., [1933] 2 K.B. 453, and Baker v. E. Longhurst and Sons, Ltd., [1933] 2 K.B. 461, applied.

Tidy v. Battman, [1934] 1 K.B. 3;9, Carlyon v. Roguski, [I9351 N.Z.L.R,. s. 188, and Evans v. Downer and Co., Ltd., [I9331 2 K.B. 465n, distinguished.

Counsel : Towle, for the appellant; Johnstone, K.C., and Holmden, for the respondent.

Solicitors : Towle and Cooper, Auckland, for the appellant ; T. N. Holmden, Auckland, for the respondent.

Case Annotations : Butterfield 8. Forrester, E. 85 E. Digest, Vol. 36, p. 122, para. 744 ; Tart v. G. W. Chitty and Co., Ltd., E. & E. Digest Supp. No. 11, title Negligence, pare. 389c. ; Baker v. E. Longhurst and Sons, Ltd., Ibid., pare. 389d. ; Tidy v. Battman ; Ibid., para. 389e ; Evans v. Downer, Ibid., para. 3896.

‘SUPREME COURT. Wellington.

1936. I

Nov. 12, 13 ; Dec. 10.

Myers, C. J. /

COURT 037 APPEAL. Wellington.

1937. Mar. 24 ; April 19. Ostler, J. Smith, J. Johnston, J. Fair, J. 1

ROBERTSON v. LING SING.

LING SING v. ROBERTSON.

Negligence-Road Collisions-No last Opportunity-Evidence that an Accident would have happened if Plaintiff had literally complied with Motor Regulations-Jury’s Verdict that De- fendant guilty of Negligence in that “ he did not approach the corner with due caution “-Whether defective-Motor- vehicle Regulations, 1933 (1933 New Zealand Gazette, 351), Reg. 11 (2) (10).

New Trial as ordered by the Full Court in its judgment reported [1936] N.Z.L.R. 653.

Prior to such new trial, the defendant filed an amended statement of defence, in which, for the first time, in addition to his previous allegations, he set up, as constituting contributory negligence, a breach by the plaintiff of his statutory duty “ to keep his motor-cycle as far as practicable to his left of the centre-line as reqmred by the motor regulations.”

Plaintiff claimed damages for injuries suffered in a collision on a winding hill road between the motor-cycle ridden by him uphill and the motor-lorry driven by defendant downhill. They met on a blind corner, neither party seeing the other until both were rounding the corner and not more than fifty feet

I 1 North Cheshire and Manchester Brewery Co. v. Manchester

Brewery Co., [I8991 AC. 83, and Campbell v. Rickards, (1833) j B. & Ad. 840, 110 E.R. 1001, distinguished.

3. That, dismissing defendant’s motion for judgment, non >bstante veredicto, or in the alternative a new trial, the jury’s ‘inding meant that the misfortune would have happened in any :ase by reason of the defendant’s negligence and that the plaintiff nas not guilty of materially contributing to the injury, so that )he material negligence was the rounding of the corner by

the defendant on his wrong side of the road.

Coyle v. Great Northern Railway Co., (1887) 20 L.R.Ir. 409, Canning v. Thi King, [1924] N.Z.L.R. 188, and Robertson v. Ling Sing, [1936] N.Z.L.R. 653, referred to.

apart, when the defendant was approaching on his wrong side. Plaintiff gave evidence that he was travelling three feet on his correct side of the centre-line of the road when he first saw the lorry ; that though he immediately swung to his left he was unable to avoid a collision and drew a diagram on a plan pro- FdTd showing the lorry at the moment of impact on its wrong

. and that it was doubtful if it left any room for the motor- cycle’ to pass even though it had been travelling on its extreme left-hand side of the road. He also said, “ I f I had been travelling on the extreme edge of the bitumen on my correct side, I am sure that there would still have been an accident. I am sure of that by the way the lorry swung round.” The defendant, did not give or call evidence.

At the end of the plaintiff’s case, defendant’s counsel moved for a nonsuit, which the learned Chief Justice, the trial Judge, refused. The jury were directed on the question as to whether or not the accident would have happened had the plaintiff observed the regulation, which was a matter for them.

The question of last opportunity was not in issue ; and the two issues submitted to the jury with their answers, were as follows :

“ 1. Was the defendant guilty of negligence materially contributing to the injury, and, if so, in what respect or respects ? ”

“ Yes. He did not approach the corner with due caution.”

” 2. If so, was the plaintiff guilty of negligence materially contributing to the injury ? ”

“ No.”

On motion for judgment for the defendant non obstante veredicto or alternatively for a nonsuit, or for a new trial on the grounds that the verdict was against the weight of evidence,

Held, refusing a nonsuit, 1. That if the plaintiff wae negligent in any respect or respects it was for the jury to determine whether such negligence materially contributed to the accident ; and on this question they would have to consider whether the accident would have happened if the plaintiff had strictly obeyed the regulation requiring him to turn the corner &s near to his left-hand side as practicable.

2. That the jury were entitled to consider the plaintiff’s 3vidence to the effect that if he had been travelling on the 3xtreme side of the bitumen, he was sure there would still have been an accident (no objection havin? been taken at the time to it, and there being no cross-exammation thereon), as such :vidence was admissible.

4. That there should not be a new trial on the ground that the verdict was against the weight of evidence as, it was one which could properly be found by twelve reasonable men.

Mechanical and General Inventions Co., Ltd. and Lehwess v. Austin and Austin Motor Co., Ltd., [1935] A.C. 346.

Judgment was accordingly given for the plaintiff ; and from that judgment the defendant appealed. On appeal,

Held, by the Court of Appeal (Oetler, J., with Smith, Johnston, md Fair, JJ., concurring) dismissing the appeal, 1. That, sssuming that the principle set out in Canning a. The King applied to a breach of the Motor Regulations (Smith, J., holding jhat such regulations did not apply in the manner indicated n Black 2). Macfarlane, [1929] G.L.R. 524) the jury were entitled my the facts to say that, even though respondent was negligent n not riding as far to his left side as possible, that negligence lid not contribute to the accident.

Phillips v. Britannia Hygienic Laundry Co., Ltd., [I9231 1 K.B. i39, referred to.

2. That the respondent’s statement “ If I had been travelling In the extreme side of the bitumen on my correct side, I am sure here would still have been an accident ; I am sure of that by

New Zealand Law Journal. May 4, 1937 _- ..-.__ ~.

the way the lorry swung round,” was a statement partly of fact and partly of opinion, and was admissible at any rate in SO far as the fact stated in it was concerned ; and that there was ample evidence apart from the opinion of respondent to justify the jury in accepting his statement that the lorry left no room for him to pass in any case.

3. That, on looking at the evidence, the conduct of the case, and the direction of the presiding Judge, the jury’s verdict meant that appellant negligently approached the corner on his wrong side, and such verdict was not defective.

Dawson v. Reginam, (1884) N.Z.L.R. 3 C.A. 1, applied.

Counsel in both Courts : Parry, for the appellant ; Leieester, for the respondent.

Solicitors : Buddle, Anderson, Kirkcaldje, and Parry, Wel- lington, for the appellant ; Leicester, Jowett, and Rainey, Wel-

lington, for the respondent.

Case Annotations : Goyle v. Great Northern Railway Co., of Ireland, E. & E. Digest, Vol. 36, p. 112, para. 744 (xxiii) ; Caqobell v. Rickards, Ibid., Vol. 29, p. 175, para. 1315 (2) ; Mechanical and General Inventions CO., and Lehwess v. Austin and Austin Motor Co., Ltd., Ibid., Supp. No. 11, title Practice, para. 2045a ; North Cheshire and Manchester Brewery Co. v. Manchester Brewery Co. E. & E. Digest, Vol. 22, p. 187, para. 1583 ; Phillips v.- Britannia Hygienic Laundry Co., Ltd., Ibid.

Vol. 36, p. 61, para. 385.

SUPREMECOURT. Auckland.

1937. CROSBIE v. MERCURY BAY CO-OPERA- April 15, 26.

1

TIVE DAIRY CO., LTD. CalZan, J. ,

Mines, Minerals, and Quarries-Dams-Restrictions on User of Adjoining Private Lands-Not ultsa vires-“ Regulating “- “ Dams “-Mining Act, 1926, s. 427 (12), (22) (45)-Mining Regulations, (1926 New Zealand Gazette, 3173), Reg. 43.

Regulation 43 of the Mining Regulations, 1926, which is as follows,

“ The Warden may, either before or after granting any application for a dam, specify a distance therefrom within which mining or other specified operations shall not be carried on, and may also from time to time vary such specification, on application of either the holder of the dam or any other person bona fide carrying on or proposing to carry on mining or other operations in proximity to the dam,”

is authorized by subss. 12, 22, and 45 of s. 427 of the Mining Act, 1926 ; and, consequently, it is not ultra vires even so far as it purports to authorize restrictions uPon the use of adjoining private lands.

The r-ord “ regulating, ” in subs. 12, includes the prohibition on mining operations ; and the word “ dam,” where used in the said regulations, is not restricted to such dams as are not erected upon or are not surrounded by private lands.

Counsel : Rudd, for the appellant from the Warden’s decision ; Bryan, i or the respondent.

Solicitors : L. F. Rudd, Auckland, for the appellant ; A. G. T. Bryan, for the respondent.

. . .-

SUPREME COURT. Auckland.

1937. April 15, 16, 19.

Callan, J. I

DONG WA1 v. AUDLEY.

Dangerous Drugs-“ Possession “-Sense in which used- Onus of Proof where Articles found in House of Householder, who disclaimed Possession in Advance-Dangerous Drugs Act, 1927, s. 8, ss. (2) and (5).

Subsections 2 and 5 of s. 8 of the Dangerous Drugs Act, 1927, respectively, make every person who has “ in his possession ” any prepared opium and any opium-smoking pipe guilty of an offence. The sense in which possession is used in the sub- sections is that “ A movable thing is said to be in the possession

of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.”

A householder, D.W., called on and informed constable A. that an employee A.D. had smoked opium in his house, and invited A. to come to his house and do something about it. Subsequently other constables, in ignorance of such previous conversation, visited D.W.‘s home and found some opium dross and parts of an improvised opium pipe. On being charged under the statute, D.W.‘s evidence was that, immediately after his interview with A. he dismissed A.D. who left these things behind and that D.W. had never used them himself. D.W., on being convicted, appealed. On appeal,

J. F. W. Dickson, for the appellant; V. R. Meredith, for the respondent,

Held, quashing the convictions, That the opium dross and pipe found at appellant’s home ought not to be held to have been in his possession unless it were affirmatively established by the prosecution that he might be presumed to have intended to deal with them as owner. Aliter had there been no such previous communication to the police, when semble, at least &rna facie, they would have been in D.W.‘s possession.

Solicitors : J. F. W. Dickson and Morris, Auckland, for the appellant ; Crown Solicitor, Auckland, for the respondent.

SUPREME COURT. \ Wellington.

I PETHERICK (WIFE) v. WATERS AND

1937. N.I.M.U. INSURANCE CO. March 22, 23, 25 ; : PETHERICK (HUSBAND) v. SAME.

April 6. Reed, J.

) (No. 2).

Insurance-Motor-vehicles (Third-party Risks)-Practice-Form of Pleadings-Statutory Indemnifier as Third Party-“ Limits ” -Motor-vehicles Insurance (Third-party Risks) Act, 1928 s. 12-Law Reform Act, 1936, s. 9.

The right to take control of proceedings in an action to which the Motor-vehicles Insurance (Third-party Risks) Act, 1928, applies, by s. 120f that statuteextendsover only so much of the claim as is covered by the contract of insurance ; and, in the case of a policy under the statute, excludes a claim for property loss. There is no provision in the statute permitting the de- fendant and the indemnifier to file defences raising the issue of liability among themselves.

National Insurance Co. of New Zealand, Ltd. v. Geddes, [I9361 N.Z.L.R. 1004, considered.

The effect of s. 9 of the Law Reform Act, 1936, read in con- junction with the Motor-vehicles Insurance (Third-party Risks) Act, 1928, is that, provided the defendant in an action is financi- ally able to pay the judgment, the plaintiff is not concerned as to whether the defendant can, as against his indemnifier, prove that within subs. 7 of s. 9 of the Law Reform Act, 1936, the sum awarded is “within the limits fixed by the contract of insurance between the indemnifier and the insurer ” ; the word ” limits ” being given a wide interpretation to include “ liability.” If, on the other hand, the defendant is bankrupt, &c., the onus would be on the plaintiff in a suit against the insurer, instituted under subss. 4 and 5 of s. 9, of proving that the damages claimed are covered by the contract of insurance.

A plaintiff in any such action is entitled to h-,ve his action tried without being hampered by any discussions cs to the rights of the defendant to indemnity ; and the indemnifier should not be permitted to be represented unless joined as a third party.

Observations as to the correct form of pleadings in actions claiming damages on account of death or bodily injury as the result of accidents, where the defendant is indemnified under a statutory contract of insurance under Motor-vehicles Insurance (Third-party Risks) Act, 1928.

Counsel : Leioester, for both plaintiffs ; 0. C. Mazengarb, for defendant and third party in wife’s claim, and for third party in husband’s claim ; Tripe, for defendant in husband’s claim.

Solicitors : Leicester, Jowett, and Rainey, Wellington, for the plaintiffs ; Mazengarb, Hay, and Maealister, Wellington, for the third party ; R. E. Tripe, Wellington, for the defendant.

May 4, 1937 New Zealand Law Journal. 111

Court of Review. Summary of Decisions.*

By arrangement, the JOURNAL is able to publish reports of cases decided L by the Court of Review. As decisions in this Court are ultimately determined by the varying facts of each case, it is not possible to give more than a note of the actua,l order and an outline of the factual position presented. Conse- quently, though cases are published as a guide and assistance to members of the profession, they must not be taken to be precedents.

CASE 21. Appeal by mortgagee. The Commission appeared to have proceeded, in assessing the value of applicant’s home property, upon applicant’s ability to Pay.

Order : That the mortgages must be reduced to the value of the property ; and that such value cannot be reduced or raised according to the pecuniary position of applicant, although this factor is relevant to the terms of payment.

CASE 22. Appeal by mortgagor against the order of a Commission that the mortgagor was not a home applicant. The mortgagor was the owner of premises subdivided into five flats, one of which she had occupied for the past eighteen months, although fur three years prior thereto she had not resided on any part of the premises. She also had a flat in different premises. Appeal dismissed.

CASE 23. Appeal by mortgagee against the order of a Commission reducing principal sum of a mortgage. Applicant’s home was badly affected by borer, which the mortgagee contended could be remedied by treat- ment, and tne value of the property could consequently be increased by more tnan the amount actually expended upon it.

Appeal dismissed ; but, upon representations from the mortgagee that his security was fast deteriorating and would ultimately mainly disappear before the time for repayment, the Court added the following rider to the order of the Commission : “ In the event of the mortgagee offering to supply moneys to be expended on restoration and preservation of mortgaged property the same can by order of the Commission be added to the principal sum and expended according to order of Commission on application made.”

CASE 24. Appeal by home mortgagor against the order of a Commission reducing the existing mortgages to the value of the property without deduction for outstanding rates. It was contended for the mortgagor that “ rates ” came within the definition of “ adjustable security ” in s. 4, and reference was made to ss. 42 (2) and 43 (8).

Held, That the Commission had no power, in reaching a basic value, to take arrears of rates into consideration as being “ a charge,” but ordered that the ten per cent. penalty be remitted.

*Continued from p. 95.

CASE 25. Case Stated by a Commission for the Court’s determination as to whether applicant was a mortgagor within the meaning of s. 4. The applicant was not registered as owner of the property in question, and could produce no documents showing he was entitled to call for a title.

Case adjourned to enable applicant to bring action in the Supreme Court to establish, if possible, his right to an interest in the property.

CASE 26. Appeal by farmer mortgagor against declaration of Commission that, in estimating the productive value of the property, it took into con- sideration the annual sum of &180 received for the manufacture of wine thereon.

Held, remitting the matter back to Commission for reconsideration, That the annual valueof obtainable production, where the land is used for the growing of vines, must be reached by reference to the quantity of grapes produced and the price at which they can be sold, and not to the price which may be obtained from the manufactured product of the grape-vines.

CASE 27. Appeal by mortgagee against the order of a Commission that mortgagor was a home applicant ; that 575 be discharged as an adjustable debt, and that mortgagor be given right to raise &400 at the end of five years and to give a second mortgage to mortgagee for the balance. Applicant’s father had executed a memorandum of transfer of the mortgaged property in favour of his daughter, but such transfer had not been registered, and no notice of its existence had been given to the mortgagee. It was contended that the transfer was a voluntary conveyance ; that it could be revoked at any time prior to registration ; that any debts of applicant were adjustable as between herself and her father, there being no debt, as between her and the mortgagee, that if the transfer be considered an agreement for sale and purchase then the father was now a “ guarantor ” given him notice.

and the mortgagee had not The mortgagee was a widow entirely

dependent on income, and if given a second mortgage after five years would be unable to protect her security if default be made under the first mortgage.

Appeal dismissed ; but order by consent varied so that the repayment of &400 at the end of five years shall be made only if demanded by mortgagee, the applicant forthwith to register her transfer and enter into a personal covenant.

CASE 28. Appeal by farmer applicant against an order of a Commission which, after estimating the productive value, had, in purported exercise of authority given by s. 39 (2), made an increase on the productive value so found upon the ground that the land while of poor quality would become more productive owing to improved outlet for drains in the course of a Govern- ment drainage scheme.

Held, allowing the appeal and reducing the value so found to the actual productive value of the farm accordingly, That mere reliance on the terms of s. 39 (2) is not enough ; to justify the increase by the possible improvement in the land by the new drainage scheme amounts to substitution of a speculative value for the value based on production.

112 New Zealand Law Journal. May 4, 1937

The Evolution of the Judicial Committee. Its Imperial Nature To-day.

By H. A. PALMER, M.A. (Oxon) of the Inner Temple.

The Judicial Committee of the Privy Council in the form in which we find it to-day only dates back, as most people probably know, to the Judicial Committee Act, 1833. Before that date the functions now per- formed by the Judicial Committee were, so far as they were performed at all, performed partly by the whole of the Privy Council and partly by other bodies.

The Privy Council itself may be traced back to the Council set up by King Alfred in the year 895. It originally consisted of about twelve members, but gradually grew to such an unwieldy size that it was remodelled in 1679 and reduced to thirty members. There is, however, no limit to the number of members, and to-day we find the Privy Council once again with a very large membership. Appeals and petitions which came before the Privy Council before 1833, and con- sisted for the most part of appeals and petitions from India and the rest of the British possessions beyond the seas, were heard by a committee of the whole of the Privy Council, who made a report to the King in Council, whereupon the final judgment or determination was given by the King.

Appeals in ecclesiastical aod admiralty matters were heard, before 1832, by a body of Commissioners known as the High Court of Delegates. The decisions of this body were usually final ; but occasionally the King, on a petition being made to him in Council, granted a commission under the Great Seal authorizing Commis- sioners to review the judgments and decrees of the High Court of Delegates. The powers of this body were transferred to the Privy Council by the Privy Council Appeals Act, 1832, and so these appeals were for a short time, before the establishment of the Judicial Committee, heard by the whole Privy Council as in the case of appeals from the British dominicns.

Appeals in prize cases were heard by such members of the Privy Council together with such others, being Judges and Barons of His Majesty’s Courts of Record at Bestminster, as were appointed for the purpose by Letters Patent as His Majesty’s Commissioners.

On the foundation of the Judicial Committee in 1833, it consisted of the President of the Privy Council, the Lord thigh Chancellor, and such members of the Privy Council as from time to time held the office of Lord Keeper or First Lord Commissioner of the Great Seal, Lord Chief Justice or Judge of the Court of King’s Bench, Master of the Rolls, Vice-Chancellor, Lord Chief Justice or Judge of the Court of Common Pleas, Lord Chief Baron or baronof the Court of Exchequer, Judge of the Prerogative Court of the Archbishop of Canterbury, Judge of the High Court of Admiralty or Chief Judge of the Court of Bankruptcy, and all other persons, members of the Privy Council, who had been President or had held any of the above-mentioned offices. Power was also given by the Judicial Committee -4ct to appoint any other two members of the Privy Council to be members of the Judicial Committee.

In addition, provision was made by s. 30 of the Judicial Committee Act, 1833, for two members of the Privy Council who had held the office cf Judge in India or any of the British dominions beyond the seas to be

I

I ’

appointed to attend the sittings of the Judicial Com- mittee and to be paid a salary of g&O0 a year. It was subsequ’ently enacted in 1887 that these two members should be deemed to be included as members of the Judicial Committee for all purposes, and that, if there were only one, he should be entitled to draw the salaries of both.

In 1871 power was given to appoint four salaried members of the Committee at 55,000 a year each.

In 1873 was passed the Judicature Act, which abolished the old Courts, such as the Court of Exchequer and the Court of Common Pleas, and established the Supreme Court of Judicature in the form in which it exists to-day. Thus many of the offices referred to in the Judicial Committee Act, 1833, ceased to exist ; but, under the 1873 Act, the Judges who became Judges of the Supreme Court were to continue to carry out the same duties, and all Acts which applied to the former Courts and the Judges thereof were to apply to the Courts and Judges of the Supreme Court. The office of Judge of the prerogative Court of the Arch- bishop of Canterbury was, however, discontinued ; and these words were repealed from the Act of 1833 by the Statute Law Revision Act, 1874.

In 1876, the Appellate Jurisdiction Act provided for the appointment of two Lords of Appeal in Ordinary, who, if Privy Councillors, were to be members of the Judicial Committee, and also two more Lords of Appeal in Ordinary to ta.ke the place of the four salaried members above referred to, to be appointed as and when a vacancy occurred. That Act also empowered the Crown to call upon a certain number of Archbishops and Bishops to act as assessors of the Committee in ecclesiastical cases.

By the Judicial Committee Act, 1881, all members of the Privy Council who held or had held the office of a Lord Justice of Appeal were declared to be members of the Judicial Committee. And by the Appellate Jurisdiction Act, 1887, all members of the Privy Council who held or had held “ high Judicial office”’ were declared to be members of the Committee, including Judges of the High Court in England, the Superior Courts in Ireland, and the Court of Session in Scotland ; and, in the following year, the references in s. 1 of the Judicial Committee Act, 1833, to the various extinct offices were repealed.

It will be seen that at this date, except for the addition of four Lords of Appeal in Ordinary and Judges from Scotland and Ireland, the composition of the Judicial Committee was net in fact materially changed frcm its original composition. It will also be noticed that up to then the only provision for the representation on the Committee of the British dominions outside the United Kingdom was that contained in s. 30 of the 1833 Act.

In 1895 all members of the Privy Council who were or had been Chief Justice or a Judge of the Supreme Court of Canada or of a Superior Court of a,ny province of Canada or of the Australasian Colonies (including New Zealand) or of the Cape of Good Hope or Natal in South Africa, were made members of the Judicial Committee subject to a limit of five in number. In 1908 members of the Privy Council who were or had been Chief Justice or a Judge of any High Court in British India, not exceeding two in number, were allowed to be made members of the Judicial Committee, if so directed by His Majesty ; and, further, the provisions 2f the 1895 Act were extended to include persons who were or had been Chief Justice or a Judge of the High Court of Australia or of the Supreme Court of

May 4, 1937 New Zealand Law Journal. 113

Newfoundland. Provision was also made in that year for Judges of India, Canada, Australia, South Africa, and Newfoundland to attend as assessors of the Judicial Committee on the hearing of appeals from those possessions. In 1913 the provisions of the Act of 1895 were again extended to include any Privy Councillor being or having been Chief Justice or a Judge of the Supreme Court of South Africa, and the limit as to numbers was increased to seven. This limit was later abolished altogether by s. 13 of the Administration of Justice Act, 19%

Finally, in 1929, the Appellate Jurisdiction Act of that year repealed the provisions of the Judicial Com- mittee Act, 1833, and the Appellate Jurisdiction Act, 1887, relating to the appointment of two salaried members who had been Judges in India or the British dominions, and gave the Crown power to appoint by Letters Patent any two Privy Councillors who were or had been a Judge of a High Court in India, or a barrister, advocate, or vakil of not less than fourteen years’ standing in India, to be paid members of the Judicial Committee.

Lord Haldane in the case already cited for a clear analysis of its position. He said :

“ The Judicial Committee is not an English body in any exclusive sense. It is no more an English body than an Indian body or a Canadian body. There sit among our members Privy Councillors who may be learned Judges of Canada, or from India, or we may have a Chief Justice from the other Dominions, Australia, New Zealand, and South Africa. I mention that for the purpose of bringing out the fact that the Judicial Committee is not a body, strictly speaking, with any location. The Sovereign is everywhere throughout the Empire in the contemplation of the law. He may as well sit in Dublin, or at Ottawa, or in South Africa, or in Australia, or he may sit here, and it is only for con- venience and because we have a Court and because members of the Privy Council are conveniently here that we do sit here.”

The jurisdiction of the Judicial Committee has undergone little material change since its formation. It has lost jurisdiction over appeals from the High Court of Admiralty in England, which now go to the Court of Appeal, except in prize cases, but it retains juris- diction to hear appeals from the Admiralty Courts of the Cinque Ports, the Colonial Courts of Admiralty and Vice-Admiralty Courts. It also retains jurisdiction in the case of appeals from ecclesiastical courts which formerly went to the High Court of Delegates, and in the case of appeals from the Courts of the British Empire outside the United Kingdom, including the Channel Islands. And there has been added to its jurisdiction, jurisdiction to hear appeals from Courts in foreign countries under the Foreign Jurisdiction Act, 1890 ; appeals with respect to endowed schools under the Endowed Schools Act, 1873 ; and appeals under the Government of Ireland Act, 19.20, and also jurisdiction with respect to certain matters of copyright.

How far the nature of proceedings before the Judicial Committee differs from the nature of proceedings before the Privy Council before the formation of the Judicial Committee, it is difficult to say. The whole basis of an appeal to the Privy Council has always rested on the right of the subject to appeal to the Crown, and the Privy Council or the Judicial Committee of the Council has acted merely in an advisory capacity, while judgment has been given by the Sovereign. Nevertheless pro- ceedings before the Judicial Committee are strictly judicial. This is clearly laid down by Lord Haldane in Hull and Co. v. McKenna, [1926] I.K. 402 P.C. :

Although the Judicial Committee is now an Imperial tribunal in its full sense, one anomaly remains. The Dominions now have equal status with the United Kingdom in the Great Commonwealth of the British Empire, yet while the Judicial Committee is available to all the Dominions as the highest Court of Appeal, its functions as a Court of Appeal in the United Kingdom are strictly limited. A logical remedy for that state of affairs would seem to be the amalgamation of the judicial functions of the Privy Council and the House of Lords, and who knows but that one day such a change might be effected.

“ With lingering pause and lightly tread.“-A little humour now and then in a legal text-book is relished by the wisest among us. The discerning have discovered in The Law of Motor Insurance, the satirically-amusing footnotes in which Mr. C. N. Shawcross occasionally twinkles in the midst of alarms that fill his brilliant text-book. Now Mr. E. L. Hasluck brightens for us his Local Government in England with the wording of the running-heads that o’er-top his pages. Consider these : “ Ultra Vires ” appears ; Council Mentality ; The Title-hunters ; Don’t shoot the Councillors ; The New Bashaws ; The Compleat Chairman ; Pantaloons in Office ; Empty Civic Heads ; “ Ad hoc ” or com- pendious.

Here is a sample of the style of this well-planned and informative book. After referring to the fact that there are two roads open before English Local Govern- ment, he fears that

“ the long arm of ’ the new despotism ’ may reach out to the local authorities, tightening the grip of Whitehall until the Municipal Service becomes a branch of the Civil Service, whilst the local Councils become dignified little social clubs whose members arnuse themselves by playing at Government.”

“ We are not Ministers in any sense ; we are a Committee of Privy Councillors who are acting in the capacity of Judges, but the peculiarity of the situation is this : It is a long- standing constitutional anomaly that we are really a Com- mittee of the Privy Council giving advice to His Majesty, but in a judicial spirit. We have nothing to do with politics or policies, or party considerations ; we are really Judges, but in form and name we are the Committee of the Privy Council. The Sovereign gives the judgment himself, and always acts upon the report which we make.”

Perhaps the most striking characteristic of the Judicial Committee as it stands to-day is its Imperial nature, for not only is it the highest judicial tribunal of the Empire outside the United Kingdom, but it is itself composed of the greatest judicial authorities from the whole Empire. Once again we may turn to

The author mentions, as an alternative, education ; and, at pp. 359 and 360, he continues :

“ Education-in the broader sense-may create a sufficiently intelligent interest in Local Government t,o lead the civic pride of the electorate to demand efficiency in its rulers, a demand which may be met by the readiness of many citizens to devote their time and energies to t,he interesting and important work of local administration. A worthy cleric of bygone days, after listening patiently to a lengthy denunciation of the shortcomings of the clergy, replied with a sigh : ‘ Yes, the clergy are doubtless a bad lot, but, un- fortunately, when they want to make a new priest they’ve only got the laity to draw from.’ Before condemning hia local Council, the ratepayer might profitably ask himself if he, personally, really deserves a better government. ‘ Tommy ‘, said the irate parent, ‘you’re a little pig. And you know what a pig is, don’t you?’ ‘Yes ‘, replied the incorrigible, ‘ a pig is a hog’s little boy.’ ”

-APTERYX.

114 New Zealand Law Journal. May 4, 1937

Canterbury District Law Society.

Annual Meetings.

Otago District Law Society.

The annual meeting of the Canterbury District Law Society was held in the Supreme Court Library, recently, the retiring President, Mr. A. S. Taylor, bemg in the chair, and about fifty-three members were present. --

There was a good attendance at the Annual General Meeting of the Law Society of the District of Otago in spite of inclement weather.

The retiring President, Mr. A. N. Haggitt, moved the adoption of the ,4nnual Report and Balance Sheet. Before reviewing the work of the year, he referred to the loss the profession had sustained through the death of the Hon. Sir Frederick Chapman, Mr. J. A. D. Adams, Hon. John MacGregor, and Mr. P. S. K. Macassey, and asked those present to stand in respect to their memory. The speaker said that a great deal of work had been carried out during the year, much of it being in connection with recent legislation. In the Library, the rearrangement of books had been completed and enlarged photographs of His Honour Mr. Justice Kennedy and His Honour Mr. Justice Callan added to the series of Judges’ photographs. The robing-room had been included in the general renovation of the Court-house and the inner room completely furnished by the Society. He said that it was a matter for congratulation that Mr. H. L. Cook had been appointed Chairman of the Mortgagors’ Adjustment Commission for Otago.

In moving the adoption of the Annual Report and Balance Sheet, Mr. A. S. Taylor, reviewed the activities of the Council in the past year referring particularly to the conclusion of an agreement with the Law Clerks’ Union, and to the forthcoming Dominion Legal Con- ference in Christchurch in 1938. Mr. K. M. Gresson seconded the motion for the adoption of the Report, which was carried unanimously.

The following officers were elected for the ensuing year : President, Mr. K. M. Gresson ; Vice-President, Mr. J. D. Hutchison ; Hon. Treasurer, Mr. R. Twyne- ham ; Members of Council, Messrs. F. J. Rolleston (Timaru), A. W. Brown, L. D. Cotterill, J. D. Godfrey, A. R. Jacobson, G. G. Lockwood, R. J. Loughnan, and A. S. Taylor.

Mr. E. J. Smith, in seconding the motion, made special reference to the work of Mr. Haggitt in connection with the Legal Conference, the success of which was in no small measure due to his ability both as President and as host.

The following office-bearers were elected for the coming year : President, Mr. E. J. Smith ; Vice- President, Mr. R. G. Sinclair ; Treasurer, Mr. F. B. Adams ; Members of Council, Messrs. A. N. Haggitt, P. S. Anderson, C. L. Calvert, H. L. Cook, A. I. W. Wood, and J. B. Thomson ; Representatives on the Council of the New Zealand Law Society, Messrs. E. J. Smith and R. G. Sinclair ; Auditor, Mr. G. H. G. Smith ; Sports Committee, Messrs. E. J. Smith (Convener), R. L. Fairmaid, W. D. Taylor, J. C. Robertson, C. J. Rawlinson, J. Howorth, and A. C. Holden.

Messrs. A. S. Taylor and K. M. Gresson were elected members of Council of New Zealand Law Society ; and Messrs. M. J. Gresson and A. T. Donnelly, members of the Council of Law Reporting.

Messrs. Hoare and Kingscote were appointed Auditors.

The following motion, which was moved by Mr. E. S. Bowie and seconded by Mr. G. G. Lockwood, was carried without discussion : “ That the incoming Council convene a meeting of the Society in each of the months of May to October (inclusive) such meetings to take the form of delivery of lectures or reading of papers by members of the profession followed by general discussion thereon.”

It was decided to close for the Christmas vacation from Friday, December 24, 1937, to Monday, January 10, 1938, both days inclusive.

Mr. L. J. Hensley moved a strong recommendation to the Council that the old annual vacation of twenty days be restored, and that, next Christmas, the offices should be closed from the evening of December 23 to the morning of January 13. Several members favoured a short holiday at Christmas, leaving it to principals to arrange with their staffs for an additional fourteen days to be taken at any other period of the year. After some discussion, Mr. Hensley’s motion was carried.

Mr. W. J. Hunter moved a vote of thanks to the retiring President and Council, which was carried by acclamation.

It was moved by Mr. A. N. Haggitt and seconded by Mr. R. G. Sinclair that the members of the Law Society of the District of Otago in Annual Meeting record their warm appreciation of the services rendered by the Conference Secretary, Mr. J. G. Warrington, incidental to the Legal Conference held at Dunedin during Easter, 1936. The motion was carried with acclamation.

Southland District Law Society.

The Annual Meeting of the Southland District Law Society was held recently.

After a lengthy discussion a motion by Mr. J. C. Parcell, seconded by Mr. J. C. Mowat, that in the opinion of the meeting the legal offices in the Otago District should be open only from Monday to Friday, was lost.

The election of officers resulted as follows :-

At the conclusion of the business, a light supper was served.

President, Mr. E. H. J. Preston ; Vice-President, Mr. M. M. Macdonald ; Hon. Secretary, Mr. H. E. Russell ; Hon. Treasurer and Librarian, Mr. T. R. Pryde ; Members of Council, Messrs. G. C. Broughton, G. C. Cruickshank, F. G. O’Beirne, G. J. Reed, and J. Tait ; Auditor, Mr. R. Stout.

May 4, 1937 New Zealand Law Journal.

New Zealand Law Society. Annual Meeting.

(Continued from p. 102.)

Next Legal Conference.-The Canterbury Society notified the Council that it was prepared to hold the Legal Conference in Christchurch during Easter of next year. It was decided to thank Canterbury heartily for their offer, and to wish them every success with the Conference.

Deposit Regulations.-After comments on these Regu- lations by the District Societies had been considered, it was decided to empower the Management Commit,tee of the Guarantee Fund to draft new Regulations embody- ing the points raised, and to submit these to the next meeting for approval.

Encumbrances on Leases-Automatic Carrying For- ward When New Lease Granted.-The following report was received :-

“The draft submitted by the Dunedin Law Society seems to be open to many objections.

The suggestion that the word ‘ lease ’ should include ‘ an agreement for lease and all other tenancies valid at law or in equity ’ seems to be particularly objectionable.

It appears to run counter to one of the main objects of the Act, viz., to keep equitable interests off the title. It is true that this principle has, to some extent, been infringed. The registration of certain agreements provided for by the Fencing Act, 1908, s. 7, is one instance. The noting on the Certificate of Title of agreements for purchase contained in Memoranda of Lease is another. There is no statutory authority for this, but a practice of doing so has obtained for some 40 years.

As provision is made by the Land Transfer Act for supporting agreements by means of Caveats it seems quite unnecessary and certainly undesirable to give to agreements for lease the status of leases.

This has, of course, been done, to some extent, by the doctrine of Walsh v. Lonsdale, but to extend it in the manner suggested seems to us objectionable.

These objects can, it seems to us, be attained by adding a new section to the Land Transfer Act. We understand that some consideration has been given to this suggestion by the Crown Law Officers.

The main object seems to have been considered and fevoured by Stout, C.J., in Bwan v. Dobson, 26 N.Z.L.R. 69. The part of the headnote to the report t,hat is relevant reads :-

’ Semble. That where a lessee under the Land Transfer Act whose lease is subject to a registered mortgage acquires the fee-simple of the land leased to him, it is the duty of the District Land Registrar when the Transfer of the fee-simple is presented for registration to indorse upon the Certificate of Title the fact that it is subject to the lease and the mortgage over the lease. Under these circumstances the lease does not merge in the freehold and the legal doctrine of merger does not apply to land held under the Land Transfer Act.

The equitable rule that where a lessee who has mortgaged his lease acquires the freehold of the land the mortgage over the lease is not destroyed applies to land held under the Land Transfer Act.’

and we are of the opinion that legislative confirmation of the District Land Registrar’s duty should be given both when the fee-simple and a new lease are respectively acquired.

The suggestion to provide in the Land Transfer Act for variation of leases by memorandum on the lines of the provision for variation of mortgages seems to be feasible and desirable, subject to protection of mortgagees.

Dated at Wellington this 18th day of March, 1937. Claude H. Weston. E. F. Hadfield. R. Herbert Webb.”

As the above Report had not been seen by the District Societies, it was decided to circulate it for consideration and comment.

Code of Civil Procedure-Amendment to Allow Court to Order Immediate Hearing of Action when Thought Proper.-The various replies received were considered, the Taranaki Society being the only one to oppose the suggestion. It was decided that a recommendation should be made to the Rules Com- mittee that the points raised in Wellington’s letter should be adopted.

Mortgagors and Lessees Rehabilitation Act, 1936 (a) List of Applicants.-The Standing Committee reported that a deputation had waited on the Minister of Justice to urge that a complete list of applicants for relief under the above Act should be prepared and gazetted at the earliest possible moment. A memor- andum setting out the reasons for the request had been handed to the Minister, with whom a lengthy interview had taken place.

The Minister stated definitely that the Government did not intend to publish any list in the Gazette, and the deputation then asked that a complete list of applicants should be made available for perusal in Wellington at least, but preferably in each of the main towns. Mr. Mason promised to consider the matter, and the following letter had since been received from him :-

“ With reference to your letter of the 9th March, and to the deputation representing the New Zealand Law Society which waited upon me respecting the disabilities imposed in particular by sections 55 and 58 of the Mortgagors and Lessees Rehabilitation Act, and asking that a list of appli- cants be published as contemplated by section 64 of the Act, I have to advise that your representations have been carefully considered, and to meet the position arrangements are now in train for a complete list of names of applicants throughout the Dominion to be available for inspection at each of the four metropolitan Supreme Courts. After some discussion, it was decided to endeavour to

have a list made available at each Supreme Court Registry.

(b) Uniformity in Principles adopted by Commissions.- The President explained that Mr. P. Baldwin, of Pal- merston, had informed him that certain urgent matters in connection with the Rehabilitation Act had been discussed at a meeting representative of the profession from Levin to Wanganui and Woodville, and had asked that the views of that meeting might be placed before the Council.

Mr. Baldwin was accordingly admitted, and explained that much concern was felt owing to the different view- points adopted by the various commissions, which resulted in applicants in different districts receiving entirely different treatment. Be gave examples of discrepancies which had been quoted at the meeting, and said that it was thought that the Minister should call a meeting of all the Commissions and decide the outstanding principles which were to be observed.

After a considerable amount of discussion, in which members stated their own experiences with Commissic ns, it was decided that the Minister of Justice should be asked to convene a meeting of the Chairmen of the various Commissions with a view to obtaining uniformity in policy and the removing of anomalies, and that the Wellington members of the Council should be a com- mittee, with power to add to their number, to make such representations from the Society as they might think fit.

(To be concluded.)

New Zealand Law Journal, May 4, 1937

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

Agreement between a Sawmilling Company and Bush Contractors for Felling of Timber Logging-up and Hauling to Mill, the Company owning One Piece of Land and having Timber Rights over Another Piece : a “ Felling, Logging, and Hauling Agree- ment.”

(Concluded from p. 101).

25. The contractors in respect of employment of workers by them and wages will comply with the pro- visions of the Wages Protection and Contractors’ Liens Act 1908 and the Employment Promotion Act 1936 and their respective amendments and all other statutes regulations and awards governing the payment of wages to employees and taxation thereof.

26. The company shall pay to the contractors for the said work the following sums namely :

(1) The sum of [One shiUing] for every one hundred superficial feet log measurement as previously defined for all timber felled and cross-cut where necessary in terms hereof other than [Rata and matai].

(2) The sum of [One shilling and sixpence] for every one hundred superficial feet log measurement as pre- viously defined for the felling and cross-cutting in terms hereof of [Rata and matai].

(3) The sum of [Two shillings and sixpence] for every one hundred superficial feet log measurement as pre- viously defined for the hauling and delivery thereof to and at the mill skids.

27. The said sums shall be payable as follows : (1) The company shall be entitled to withhold all

payments to the contractors until it has accumulated in its hands the sum of [One hundred pounds] to be held as security for performance by the contractors of all their obligations hereunder such sum of [SlOO] less lawful deductions to be paid to the contractors at the expiration of sixty days after completion of all obligations of the contractors hereunder.

(2) The company shall also be entitled to deduct from time to time from the moneys payable hereunder or apply the whole or any part of the said last-mentioned sum held by way of security towards payment of insurance premiums or performance of any other obligations of the contractors hereunder.

(3) Subject to the foregoing the company shall pay the sums accruing due to the contractors for work here- under by calendar monthly payments :-

(u) As to three-fourths of the sum accrued due each calendar month upon the 20th day of the calendar month immediately following ; and

(b) As to the remaining one-fourth thereof on the 20th day of the third calendar month immedi- ately following.

(4) Tnis clause shall be read subject to the provisions of the Wages Protection and Contractors’ Liens Act 19& and its amendments and subject to any notices served on the company thereunder.

28. The rights and liabilities of the contractors here- under shall be regarded as personal to them but the same may with the written consent of the Company be let in whole or in part to competent sub-contractors :

Provided always that no such sub-letting shall be made without the company’s written consent first had and obtained and no such sub-letting shall in any way release the contractors from any liability hereunder.

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29. (1) I f the contractors shall make default in delivery of the said logs timber or any part thereof regularly at the times and in the manner hereinbefore provided or fail to comply with any of the obligations imposed on them by this contract then and in any such case the company shall be at liberty immediately to determine this contract by giving notice in writing to the contractors.

(2) Any such notice may be served by delivery to any one of the contractors personally on behalf of all of them or by posting a copy in a conspicuous place at the mill skids or the mill and in such event the amounts retained by the company as security as afore- said and any other sums accrued or accruing due to the contractors hereunder shall be forfeited to the company without. prejudice to the right of the company to recover from the contractors any further and other damages to which the company may be entitled for breach renunciation or rescission of contract.

30. If the said mill (or any other belonging to the company and used in substitution therefor) or if any of the said chattels (or any other chattels inclusive of machinery belonging to or used by t,he company in connection with any such mill) shall be destroyed or materially damaged by fire flood or other inevitable accident or if work at the said mill shall be stopped or suspended by strike lock-out or any cause beyond the control of the company then all obligations of both parties hereunder shall for the time being be suspended until the cause of such suspension shall have been removed or ceased to exist and the mill machinery or other matter repaired or reinstated or work resumed therein.

31. Incidental to their obligations hereunder the contractors will at all times so perform their work as not to cause any breach or nonobservance of the provisions contained in the said grant of timber rights and will indemnify the company against any breach or nonobservance thereof occasioned by any act or default of the contractors or their employees or any of them.

32. The liabilities of the contractors hereunder shall as between them and the company be both joint and several and in the event of the death of any one or more of the contractors shall enure and be imposed upon the survivor or survivors of them.

33. This agreement shall bind and enure to the benefit of the company its successors and assigns.

34. In case of any difference or dispute arising be- tween the parties hereto their survivors or successors or the personal representatives of any such survivor touching or concerning the construction of this agree- ment or of any act or thing arising in respect thereof such difference or dispute shall be settled by arbitra- tion in accordance with the Arbitration Act 1998 or sng modification or re-enactment thereof in force for the time being.

As witness &c. FIRST SCHEDULE.

All that &c. [Description of company’s land.]

SECOND SCHEDULE. All that &c. [Description of land comprised in grant of timber

rights.] THIRD SCHEDULE.

[List of chattels in&ding log-hauler and other machinery. J

Ttle common seal &c. Signed &c.

May 4, 1937 New Zealand Law Journal.

Obituary. Mr. E. J. Ross, Christchurch.

-- The death occurred late on April 14, at his residence,

Fendalton, of Mr. Edward James Ross, who was in his seventy-seventh year.

Mr. Ross was born in Christchurch in January, 1860. He was educated at Mrs. G. A. Ross’s School and later at Christ’s College. After he had entered the legal office of Harper and Co., he was associate to Mr. Justice Johnston for two years. Later, he was managing clerk to Mr. A. E. G. Rhodes. He eventually became a partner in the firm cf Messrs. Rhodes, Ross, and Godby.

Mr. Ross was very closely connected with the affairs of the Church of England. He was elected a member of the Church Property Trustees in 1906, and till the time of his death was a member of t.he executive committee of this body, of which he was also deputy-chairman. Since 1913 he had been a member of the Cathedral Chapter. He was also a member of the Anglican Synod, and had attended every Synod since his appointment in 1932. Other Church bodies on which he served were the Clergy Pension Trust Board, of which he had been a member since 1904, and the Advisory Board of St. Margaret’s College, of which he was chairman from the time of the inception of that body until its affairs were taken over by the Diocese in 1930. He also had acted as Church Advocate from 1921 until his death.

Prominent in various sporting activities, Mr. Ross, in his earlier days gained distinction as a cricketer as a member of the old United Club, and he was a Canterbury representative in several seasons. He was a member of the original Cranmer Tennis Club, and became a member of the committee of the Canterbury Lawn Tennis Association, and its president. In later years he was a keen croquet player and gained distinction for his performances in Dominion and provincial tournaments in this sport. He was first president of the New Zealand Croquet Council, and on several occasions was president of the Canterbury Croquet Association. He was a member of the Un.ited Club until the end of last year. A foundation member of the Hagley Golf Club, he was president for many years. Although lacrosse is a game which has not been played in Canterbury for more than thirty years, he achieved the distinction in his younger days of being a Canterbury representative lacrosse player.

Mr. Ross was also keenly interested in poultry producing for many years, and, for terms, was president of both the Christchurch Poultry Club and the South Island Poultry Association. He was a keen exhibitor at every show held by the Christchurch Poultry Club.

Mr. Ross is survived by his wife, one daughter, and one son, Mr. A. G. F. Ross, both of Christchurch. His other two sons were killed on active servica at Gallipoli.

Mr. A. M. Macdonald, Invercargill.

Mr. Arnold Morel1 Macdonald, of Invercargill, died at Kaikorai on March 27, at the age of sixty-three years.

The deceased gentleman was the fourth son of Mr. Thomas Morel1 Macdonald, at one time solicitor for

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the Provincial Government of Southland and later Zrown Prosecutor for the province. He was born at Enwood (Invercargill) and received his secondary :ducation at the Southland Boy’s High School.

In 1898 he was admitted as a solicitor of the Supreme Clourt and joined his father and brother in partnership, ;he firm practising as T. M. Macdonald and Sons. In later years, he practised with his son, Mr. Morris M. Macdonald, as A. M. Macdonald and Son.

The late Mr. Macdonald was a prominent member 3f the Law Society and was aJso a member of the Automobile Association (Southland). He served 3n the executive of the latter body for many years snd was the first to suggest the colour scheme which at present marks the roads of Southland. Mr. Macdonald found further outlet for his enthusiasm in promoting the welfare of the province in his wor& as a member of the Southland Progress League and he was also a member of the executive of the lnvercar- $1 Chamber of Commerce.

As an amateur photographer Mr. Macdonald enjoyed no small success, being a successful exhibitor of camera studies both in New Zealand and overseas. He was t member of the Invercargill Camera Club and his work won praise from acknowledged critics.

Mr. Macdonald is survived by his widow, one son, Mr. Morris Macdonald, and a daughter, 1VIiss Berys Macdonald.

At a largely-attended meeting of the members of the Southland Law Society held in the Court-house, the President, Mr. E. H. J. Preston, paid a tribute to the late Mr. Macdonald’s services to the profession and to the public generally, to his high ethical standards, his court,esy, and his able and thorough professional work and high conception of duty. Mr. Preston read a letter of sympathy from His Honour Mr. Justice Kennedy, Messrs. J. L. McG. Watson, C. S. Longuet, and F. G. O’Beirne added their tributes of appreciation of the late Mr. Macdonald’s character and work, and of sympathy with his relatives. Mr. W. H. Freeman, S.M., joined in the appreciation of Mr. Macdonald’s long and honourable association with the law, and in the expres- sions of sympathy voiced by the President and members of the Society.

--

The Case Rests.-1 was sitting in a Californian State Court one day while counsel, whose eloquence had been exciting my admiration, was addressing an argument to the Bench. All at once I was shocked to hear him say : “ I f your Honour will just, get out your pencil and piece of paper and do a bit of figuring, you will see the defendant is lying.” I shuddered as I thought of the reaction had such flippancy been displayed, for example, in the Court of His Honour the Chief Justice of New Zealand. I reflected that in our Courts such a speech would probably have been rendered : “ I f your Honour will devote some attention to the manner in which the defendant’s calculations have been arrived at, I respectfully submit that your Honour will come to the conclusion that the defendant is in error in his analysis. ’ ’

Contrasting these two statements of the same circum- stances, I concluded that even arrears of litigation were preferable to the bald and even crude slang of this American pleader.-A. T. S. McG.

New Zealand Law Journal. May 4, 1937

Bench and Bar. Mr. K. J. MeMenamin has commenced practice in

Christchurch.

Mr. V. W. Russell has acquired the pr&ice of Messrs. Lane, Neave, and Wanklyn at Ashburton.

Mr. H. W. G. Park has comn,enced practice on his own account at Hokitika.

Mr. C. H. Bisson has taken Mr. H. R. Moss into partnership and the firm will practice under the style of Bisson & Moss.

Mr. S. V. Beaufoy and Mr. M. R. Maude, of Gisborne, have amalgamated their practices and the new firm will be known as Beaufoy and Maude.

Mr. Dawson E. Chrisp has retired from the partnership of Chrisp and Chrisp, and will practise on his own account at Gisborne.

Mr. J. F. Thompson, of Greytown, has taken Mr. R. W. Tate into partnership, the new firm-name being Thompson and Tate.

-- Dr. R. G. McElroy, late of the firm of Messrs. Love-

grove, George, and McElroy, Auckland, is now practising on his own account at National Bank Buildings, Fort Street.

Messrs. E. L. Thwaites and B. H. Bennet, Auckland, have dissolved partnership. Mr. Thwaites is practising at the firm’s old address, while Mr. Bennett’s new office is in the Colonial Mutual Buildings, Queen Street.

Mr. M. B. James, who has been on the staff of Messrs. Hannan and Seddon, Greymouth, for some years, has taken over the practice of Messrs. Park and Murdoch at Hokitika.

Mr. N. M. Izard, who, for the last four years, was a member of the firm of Messrs. Marshall, Izard, and Wilson, Wanganui, is now practising on his own account as a barrister and solicitor at 172 Hereford Street, Christchurch.

Mr. W. S. Park, of Levin, has taken into partnership Mr. J. P. Bertram, who was previously Managing Clerk for Messrs. Salek, Turner, and Brown, Solicitors, Wel- lington. The firm will henceforth be known as Park and Bertram.

Mr. P. H. T. Alpers, the only son of the late Mr. Justice Alpers, and for a time Associate to Mr. Justice Blair, was recently admitted as a barrister and solicitor by Rlr. Justice Northcroft on the motion of Mr. C. S. Thomas.

Messrs. K. A. Gough and R. S. D. Twyneham have recently been admitted by Mr. Justice Northcroft as bar-bisters and solicitors on the application of Messrs. H. P. Smith and Roy Tyneham respectively ; and Mr. N. S. Stirling, as a barrister, on the motion of Mr. C. S. Thomas.

Practice Precedents. --

Restriction by Court of the Testamentary Powers of a Protected Person.

Section 26 of the Aged and Infirm Persons Protection Act, 1912, provides that

(1) The Court may direct in any case that any testamentary disposition by a protected person after the making of a pro- tection-order shall be made only after such precautions as the Court thinks fit to direct, and any testamentary disposition made otherwise than as the Court shall so direct shall be ineffectual for all purposes.

(2) The Court may,. by such means as it thinks fit, cause inquiries to be made as to the existence of any will or codicil made and executed by the protected person prior to the making of the protection-order (whether such will or codicil was made before or after the passing of this Act), and may direct that any such will or codicil shall be deposited in the Court. If it shall appear to t,he Court that such will or codicil was made when the person making t,he same was subject to any of the incapacities defined in section four or five of this Act, the Court may inspect such will or codicil and may cause inquiries to be made, in such manner as to the Court seems fit, whether such will or codicil expresses the present desire and intention of the protected person, and, if satisfied to the contrary, may, in any such case where such course is possible, cause the present desire and intention of the pro- tected person to be ascertained to its satisfaction, and may authorize the execution by the protected person of a new will disposing of his estate in accordance with such present desire and intention.

(3) Except as provided in this section, nothing in this Act shall affect the law relating to testamentary dispositions.

In In re K, Ante, p. 93, Mr. Justice Fair directed that inquiries be made by a barrister in active practice, as an officer of the Court, in accordance with the terms of the section, as to the two wills made by the protected person and as to whether the later will expressed his present desire and intention, and report to the Court the result of such inquiries. If such report satisfied the Court that such later will did not express the present desire and intention of the protected person, the same barrister should he appointed to ascertain the present desire and intention of such person, and thereafter to report to the Court.

There are several instances, unreported, wherein a Judge has directed that the inquiries be made by the Registrar and Deputy Registrar with a direction that they should witness the will, if satisfied that the protected person is of testamentary capacity.

The following forms provide for such a case.

MOTION FORLEAVE TO OBTAIN EXECUTION OF A FRESH WILL.

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

. . . . . . . . Registry. IN THE MATTER of the Aged and Infirm

Persons Protection Act 1912 AND

IN THE MATTER of the estate of A.B. &c. a protected person.

Mr. of Counsel for C.D. the manager of the above estate TO MOVE before the Right Honourable Sir Chief Justice of New Zealand at his Chambers Supreme Court House on day the day of 19 at 10 o’clock in the forenoon or so soon thereafter as Counsel can be heard FOR AN ORDER directing what precautions should be taken to enable the said A.B. to execute a valid and effectual will and for an order that the costs of and incidental to this application as between Solicitor and client be paid out of the above estate AND for such further or other order as to this Honourable Court may seem fit UPON THE GROUNDS

May 4, 1937 New Zealand Law Journal. 119

that the said A.B. is a protected person and desires to amend his will and UPON THE FURTHER GROUNDS appearing in the affidavits filed herein.

Dated at this day of 19 . Solicitor for applicant.

REFEaENoE.-Section 26 of the Aged and Infirm Persons Protection Act, 1912. [Memorandum (setting out facts briefly).]

Certified pursuant to the rules of Court to be correct. Counsel for applicant.

AFFIDAVIT IN SUPPORT OF MOTION. (Same heading.)

I, X.Y. of Solicitor make oath and say as follows :- 1. That I am the manager of the Trust Company &c.

at 2. That on the day of 19 the above-

named A.B. was declared by this Court to be a protected person pursuant to the above Act and I this deponent was by such order appointed manager of the whole of the estate of the said A.B.

3. That the assets and liabilities of the said estate of the above-mentioned A.B. are as follows :-

Assets : (a) Freehold lands [Set out description]

valued at . . . . . . E (b) Furniture etc. valued at . . . $

Liabilit,ies : (a) Accounts [Give pa,articuZara] . . . . E (5) Maintenance [ Gil;e particulars] . . t .

4. That on the day of 19 the said A.B. executed a will prepared by me and appointed the said company as executor thereof.

5. That for a number of years the rents of the said A.B. were collected by me on his behalf and that I had other dealings with the said A.B. extending over a number of years, so that the said A.B. is well known to me.

6. That on the day of I was requested by one E.F. the brother of the said A.B. to interview the said A.B. with the object of making a new will or altering the present will of A.B.

7. That the said E.F. is the only brother of the said A.B. and is the only living relative by blood of A.B.

8. That pursuant to an arrangement made A.B. in company with an attendant called at my office but as he seemed over- wrought after his journey I deemed it expedient not to proceed with the execution of a will though I attended him for about twenty minutes.

8. That the said A.B. was as the result of a stroke unable to write and he was short sighted. His power of speech was affected by the stroke and strangers would have difficulty in understanding him.

9. That on the said day of 19 I found it difficult to understand what he endeavoured to say though by studying his face carefully when I spoke to him I concluded that he understood me perfectly. I further concluded that he preferred to talk to one O.K. a member of my staff who had attended him on occasions and who had known A.B. for a number of years.

10. That in consequence thereof I arranged for O.K. to interview A.B. at the home of A.B. and ascertain his testa- mentary wishes. I did not at my interview discuss or try to glean his testamentary wishes to any extent.

Sworn &o.

AFFIDAVIT OF IN SUPPORT OF MOTION.

(Same heading.) I, O.K. of Solicitor make oath and say as follows :-

1. That I am a Solicitor in the employ of the Trust Company at

2. That I have known the above-mentioned A.B. for the past ten years.

3. That pursuant to instructions received on the day of 19 I proceeded to the home of A.B. with the object of receiving instructions regarding the making of a will.

4. That on arrival A.B. was sitting in a chair and shook hands with me without rising. He is an old man and as the result of a stroke his speech was affected and his capacity to move about was impaired. He was quite calm and collected.

5. That though his speech was imperfect he seemed thoroughly to understand what I asked him and after much laboured talk I prepared a draft will for him.

6. That I carefully read over the draft will to A.B. and explained it to him and he acknowledged it by nodding his head from time to time.

7. That I am of opinion that his difficulty in imparting his desires to me regarding his will were due to his physical d.is- ability which impeded his speech. He had the greatest difficulty in writing for the same reason.

8. That I am satisfied he had sufficient testamentary capacity to make a will.

9. That the draft will prepared by me was substantially the same as the former will he had made.

Sworn &c.

ORDER as TO EXECUTION OF A FRESH WILL.

(Same heading.) day the day of 19 .

Before the Honourable Mr. Justice UPON READING the motion filed herein and the affidavits filed in support thereof AND UPON HEaRING Mr. of Counsel for the manager of the estate of A.B. IT IS ORDERED pursuant to the provisions of section 26 of the Aged and Infirm Persons Protection Act, 1912, as follows :

1. That the said A.B. be authorized to execute a will in the presence of the Registrar and Deputy Registrar of this Honourable Court at after they have satisfied them- selves that such will represents the wishes of the said A.B. and that he understands the meaning and effect thereof.

2. That the cost,s of and incidental to this order be taxed and paid out of the estate of the said A.B. as between Solicitor snd client.

By the Court, Registrar.

NOTE.-IC, frequently happens that the Court fixes the costs.

Recent English Cases. Noter-up Service.

FOR

Halsbury’s “ Laws of England.” AND

The English and Empire Digest.

BANKRUPTCY. Deed of Arrangement-Assent-Dealings with Trustee.

A creditor who deals with the trustee under a deed of arrangement m.ay be estopped from bringing an action against the debtor for a debt incurred before the execution of the deed.

VICTOR WESTON (FABRICS), LTD. V. MORQENSTERNS, [I9371 2 All E.R. 260. K.B.D.

As to effect of assent to a deed of arrangement : see HALS- BURY, Hailsham edn. 2, pars. 606-608 ; DIGEST 4, pp. 127-130, 5, pp. 1135-113s.

BILLS OF EXCHANGE. Bills of Exchange - Indorsement - Cheque - Intention of

Indorser. An indorsement of a cheque to pay to the order of com-

pany A. may be read as an indoraement over to company B. where the names of the companies are similar and the intention of the indorser is proved or shown by the facts to have been to indorse over to company B.

BIRD AND Co. (LONDON), LTD. V. THOMAS COOK AND SONS, LTD., AND THOMAS COOK AND SON, (BANKERS), LTD., [I9371 2 All E.R. 227. K.B.D.

As to indorsements : see HALSBURY, Hailsham edn. 2, par. 903 ; DIGEST 6, pp. 211, 212.

120 New Zealand Law Journal. May 4, 1937

COMPANIES. Statutory Meeting-Winding up-Distribution of Assets-

Surplus Assets. The rule of equality in thx distribution of surplus assets

applies to statutory companies restricted as to the dividend they may pay upon their shares, and having shares entitled to varying percentages as dividends.

Re SYSTON XVD THURMASTON GAS, LIGHT AND COKE Co., LTD., [I9371 2 All E.R. 322. Ch.D.

As to winding up of statutory companies : see HALSBURY, Hailsham edn. 5, par. 159 ; DIGEST 10, pp. 1193, 1194.

COPYRIGHT. Copyright-Play-Title-Film UnconnectAd with Play-

Same Title. The owner of the copyright in a play, who has no immediate

intention of producing a film based upon the play, ~nay not be able to prevent the producer of a film not based upon the play from using the title of the play.

O'GORMAN o. PARAMOUNT FILM SERVICE, LTD., [I9371 2 All E.R. 133. Ch.D.

As to rights in title of a work : see HALSBURY, Hailsham edn., 7, par. 826; DIGEST, 13, pp. 177-179.

EXECUTION. Execution - Garnishee - Wife Debtor - Bank Account -

Account in Wife’s Name-Payment,s in Made by Husband. Where a husband opens a banking account in his wife’s

name, there may be a resulting trust in his favour so as to prevent a judgment creditor of the wife from garnishing the account.

HARRODS, LTD. W. TESTER, [I9371 2 All E.R. 236. Ch.D. As to accounts in name of wife : see HALSBURY, Hailsham

edn. 16, par. 1001 ; DIGEST 27, pp. 94, 95.

FACTORIES AND SHOPS. Factories and Shops-Dangerous Machine-Obligation of

Workmen to Use Guard-Instruction by Employer. An employee who, in obedience to his employer’s instruc-

tions, does not use a guard for a dangerous machine does not commit a breach of the Woodworking Machinery Regulations, 1922, reg. 23.

MURRAYV.SCHWACHMAN, [1937]2 Ali E.R.68. C.A. As to dangerous machinery : see HALSBURY, Hailsham edn.,

14, pars. 130-133 ; DIGEST, 24, pp. 908-912.

INCOME TAX. Business-Expenditure-Annual Payment Made as Part of

Consideration of Purchase of Business. An annual payment undertaken as part of the consideration

on the acquisition of a business cannot be deducted in com- puting the company’s taxable income.

TATA HYDRO-ELECTRIC AGENCIES, LTD. (BOMBAY) v. INCOME TAX COMMISSIONERS, BOMBAY PRESIDENCY AND ADEN, [I9371 2 All E.R. 291. P.C.

As to trade expenses : see HALSBURY, Hailsham edn. 17, pars. 309-320 ; DIGEST 28, pp. 42-45, 50, 51.

INSURANCE. Insuranc+Policy-Disclosure-Claims on Other Policies in

Respect of Other Subject Matter. It is not necessary for an intending assured to disclose,

without any question being asked, every claim he has ever had upon any other insurance policy whatever the subject- matter.

EWERO.NATIONALEMPLOYERS'MUTUALGENERALINSLJRANCE ASSOCIATION, LTD., [I9371 2 All E.R. 193. K.B.D.

As to duty to disclose : see HALSBURY, Hailsham edn. 18, par. 596 ; DIGEST 29, pp. 323, 324.

Life Insurance-Exception-Suicide “ Within One Year from Commencement of Insurance “-Suicide Nine Years After Issue--Public Policy.

The Court will not enforce payment of insurance moneys payable under a contract of life insurance where the assured has been guilty of felonious suicide.

BEEESFORD ~.ROYAL INSURANCE CO.,LTD., [I93712 Ali E.R. 243. C.A.

As to death due to assured’s criminal act : see HALSBURY ‘Hailsham edn. 18, par. 817 ; DlGEST.29, pp. 366-369.

LIBEL. Libel-Privilege-Reports-Judicial Proceedings.

An interruption in the nature of an application to the Court may be “proceedings ” within the Law of Libel Amendment Act, 1888, sec. 3.

FARMERV. HYDE, [I93711 All E.R. 733. C.A. As to what are judicial proceedings : see HALSBURY, Hail-

sham edn., 20, par. 563, not,e (u) ; DIGEST, 32, pp. 135-137.

NEGLIGENCE. Negligence-Damages-Action for Personal Injuries-Loss of

Both Hands. A Judge in assessing damages in an action for personal

injuries is entitled to consider other matters besides the mere loss of earning power.

HEAPS V. PERRITE, LTD., [1937] 2 All E.R. 60. C.A. As to measure of damages : see HALSBURY, Hailsham edn.,

10, par. 139 ; DIGEST, 36, pp. 122-125.

Rules and Regulations. Health Act, 1920. Hairdressers (Health) Regulations Exten-

tion, 1937, No. 2 (Raetihi). April 9, 1937. No. 156/1937. Health Act, 1920. Drainage and Plumbing Regulations Exten-

tion Order, 1937, No. 4 (Wairoa). April 14, 1937. No. 157/1937.

Motor-spirits (Regulation of Prices) Act, 1933. Motor-spirits Prices (Mid and South Canterbury) Regulations, 1937, Amendment No. 1. April 23, 1937. No. 158/1937.

Motor-vehicles Act, 1924. Traffic Sign Regulations, 1937. April 23, 1937. No. 159/1937.

Board of Trade Act, 1919. Board of Trade (Onion) Regula- tions, 1937, Amendment No. l., April 23, 1937. No. 16011937.

Agricblture (Emergency Powers) Act, 1934. Dairy Board Election Regulations, 1937. April 23, 1937. No. 161/1937.

Agricultural Workers Act, 1936. Agricultural Workers Exten- tion Order, 1937, No. 3. April 23, 1937. No. 162/1937.

Slaughtering and Inspection Act, 1908. Slaughtering and Inspection Regulations, 1937. April 24, 1937. No. 163/1937.

Motor-spirits (Regulation of Prices) Act, 1933. Motor-spirits Prices (North Canterbury) Regulations, 1936, Amendment No. 1. April 24, 1937. No. 164/1937.

Motor-spirits (Regulation of Prices) Act, 1933. Motor-spirits Prices (Manawatu) Regulations, 1936, Amendment No. 1. Alsril 24, 1937. No. 165/1937.

Mot&-spirits (Regulation df Prices) Act, 1933. Motor-spirits Prices (Wellington) Regulations, 1937. April 24, 1937. No. 1 A611 937.

Sale of Food and Drugs Act, 1908. Sale of Food and Drugs Amending Regulations, 1937. April 23, 1937. No. 167/1937.

Dentists Act, 1936. Dental Regulations, 1937. April 23, 1937. No. 168/1937.

Master and Apprentice Act, 1908. Master and Apprentice Amendment Regulations, 1937. April 23, 1937. No. 169/1937.

Infants Act, 1908. Infants Act (Adoption Fees) Rules, 1937. April 23, 1937. No. 17011937.

Primary Products Marketing Act, 1936. Agriculture (Emergency Powers) Act, 1934. Dairy-produce (Special Milk Products) Regulations, 1937. April 23, 1937. No. 171/1937.

Agrieulture (Emergency Powers) Act, 1934. Export Butter- box Pool Regulations, 1937. April 23, 1937. No. 172/1937.

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