July 19, 1927 BV’I’TER WORTH’S FORTNIGHTLY NOTES. 125

YButterworth’s lfortnigbtlp Wotes.

" Sign your will before you sup from home.”

--. Samuel Johnson.

TUESDAY, JULY 19, 1927.

INTOXICATION.

arrived at that unless a medical man detected pathological conrlitions ant1 symptoms to account for the state of an alleged drunken man, a police officer of experience is as ~011, if not better qualified, than a medical man to pronounce an arrested man as drunk or sober. But there is no such conflict, there is, instead, in my opinion a progressive history of a not’ uncommon kind. I n.m satisfied that, Sheen was quite intoxicated when his zig-zag course on Glover Road led him into collision with Hop- kins ; that he was still under the influence of liquor when arreste,l say ‘at) 7.35 ; that he was almost completely sobered by the shock of his arrest when Doctor Thomson saw only slight t,races at 7.50 ; more sober still when Constable Mullan saw him at 8.10 ; sobor enough to be released by Sergeant Henry at 8.59 ; and quite sober when Dr. McGhie saw him at. 9.20 p.m.

Such a history is not very uncommon. A man used to liquor frequently makes a quick recovery under arrest. Constable Mullan deposed to arresting men in a very drunken state, only to find them so sobered up by the time t,hey reached the statron that it is doubtful if the Sergeant will hold them. The intermittent, effect that Constable Mullan’s evidence seems to disclose in Sheen’s case is not unheard of.

In these days of high-power automobiles and also of high-power liquids the question of drunkenness frequently finds its place among the problems which Magistrates are called upon to unravel. Mr. J. S. Barton recently had an interesting problem of t’his class before him in the Magistrate’s Court at Hawera, in the case of The Police v. Sheen. Accused through driving an erratic course collided with a motor cycle. He departed hurriedly after the accident, to be subsequently arrested in Hawera. Accused admitted having had some drink with a chance acquaintance with whom accused claimed he talked race horses for some hours. He could give no details of events occuring bet’ween the time of the accident and his arrest.

Mr. Barton records the evidence t,hus:- Hopkins (the injured cyclist) gave evidence of Sheen’s con-

dition at 7.20 at the scene of the accident and at about 7.35 at the time of his arrest. F’aterson and Sergeant Henry gave evidence of Sheen’s condition at the time of his arrest and all say firmly that he was intoxicated.

Sheen was taken to the Police Station and at 7.50 p.m. he was examined a,nd tested by Dr. Thomson, called at his request. At about 8 o’clock he was seen at the station by Constable Mullan. At 8.50 p.m. Sheen was released on bail, and at 9.20 p.m. hc was seen, examined and t’ested by Dr. McGhie. All these witnesses give evidence of their observations and conclusions at the respective times they saw Sheen.

Dr. Thomson noted a congestion of the face and eyes that he attributed to the effects of liquor, after making allowance for a cold from which Sheen W:W suffering. He applied many tests and deposed that Sheen passed them all as a sober man would. He was steady on his feet, could stand with eyes closed, on both feet or on his right foot alone-he was unsteady when on his left foot alone with eyes shut, but that might have been due to an injured left foot. His articulation was good and his reasoning faculties apparently normal. As a final conclusion the doctor was of the opinion that there was slight evidence of the influence of liquor, a slight, impairment, of mental and physical faculties, “ but,” said witness, “it was slight.”

Constable Mullan came t>o the watchhouse at about 8 p.m., and brought an open mind t,o the problem. He engaged Sheen in conversation without knowing whom ho was or why he was there. The constable said that, defendant smelt, strongly of liquor and was flushed in the face, but) he saw nothing in Sheen’s behaviour or speech that would lead to the conclusion that he was intoxicated. Sheen’s solicitor then appeared and had five minutes’ conversation with him. After that the const)ahle deposes that he noticed a marked change in Sheen’s demeanouc and in consequence he changed his opinion and judged that defendant had had a considerable amount of alcohol. The symptoms leading to that changed opinion were, increased flushing of face, “talkativeness,” and a fit of crying.

Dr. McGhie, who examined Sheen at 9.20 p.m. deposed to finding him a perfectly sober man with no trwe of liquor about him. We reactetl to test)s physical and lingrial, exactly as a perfectly sober man would. To every test of his reasoning faculties he gave the response of a normal man. The doctor expressed the opinion that not only was Sheen quite sober at 9.20 p.m., but that it was not, possible 1 hat, he should have been markedly int,oxicnt,ed at 7.20 p.m.

After guarding against prior suggestion in respect to Hopkins and the Sergeant, Mr. Barton proceeds :-

Approaching now the reconciliation of the two sets of witnesses T have to say that if the evidence of the doctors and of Ser.geant Henry were in direct conflict’ as relating to the same pomt of time the evidence of an experienced police sergeant ca‘mot be lightly dismissed. At, a recent conference of gaol surgeons in London as reported in the “ Practitioner,” the conclusion was

The report in “ The Practitioner” that I have referred to gives several instances of men arrested in a state of complet,e drunkenness ; sobered by arrest ; braced up to meet the doctor they pass all tests and on the doctor’s cert’ificate of sobriety are at once released only to he arrested again hopelessly incapable and unable to brace up the second time having had no more liquor in the meantime. Sheen by his appearance and on his own admission in evidence has been a very heavy drinker and is used to alcohol ; but has been almost a total abstainer for about three years. Postulating such a man, and four drinks taken at short intervals without food, and the history given of his actions up to the time Dr. McGhie saw him, and I seeno difficulty at all in accepting all the evidence of all the witnesses

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The view of the learned Magistrat’e appears to be quite a reasonable one to take of the case before him, and he finds strong support from the Conference of Gaol Surgeons in London. The moral to be drawn from a practitioner’s standpoint is that the medical examination of t’he accused should take place as soon its possible after the accident. As to the value to be attached to the medical evidence afterwards is a nice point to be decided in each case. As a general rule however police evidence could hardly be accepted of itself as conclusive evidence of intoxication, as against that of a medico, for to do SO would be to place the police sergeant in the dual position of judge and prosecu- ;or at one and the same time.

ADVERTISING REGULATION.

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Much outdoor publicity is vandalism. The Buller serge with its charming scenery, for insta,nce, is effec- ;ively marred and scarred from one end to the other. 4 bend of a fern-walled, tree-ceilinged road which Iresents a picture seldom equalled in nature, is chosen 1s a setting for a daub, indicating the hotel at which !he travel6 might be accommodated in a distant town. Hence he who travels to be far from the madding :rowd’s ignoble strife finds th.e outdoor advertiser be- setting his wayfarings wibh suggestions and thoughts tbout the use of oils, soaps and pills, while some others ‘eel that they can improve on nature’s balm by warnings :o passers-by concerning the inevita)bility of death and ;he possibility of its imminence.

Mr. E. P. Lee’s bill to empower County Councils to nake by-laws regulating advert’isements exhibited within their boundaries should commend itself to any- me who has the slightest appreciation of scenery. lt is to be hoped that t’he Government will take up this oil1 and facilitate its passin,g into Law. The Publicity Department is doing excellent work in bringing before !he wealthy people of the world the natural attractions If the Dominion, and bhe Railway and Tourist Depart- ments are showing commendable activity to induce people to travel to New Zealand beauty spots. To Jermit the advertising anarchist to continue to nullify

BUTTERWORTB’S FORTNIGHTLY NOTES. July 19, 1927

the efforts and expenditure of t*he Government depart- ments mentioned would be regretable from even a purely commercial viewpoint. Incidentally the forming of the by-laws will present some interesting problems to the draftsman.

FIRST INSTANCE ADJUDICATIONS. ---

It is sometimes a little difficult for the Bar to keep in mind the viewpoint of the Bench, and this is particu- larly the case iu the matter of appeals. Stating a case for appeal involves no little labour on the part of a Magistrate which in a busy district it is only human nature that the Magistrate would prefer to avoid. Practitioners bearing t#his in mind and refraining from making applications to appeal where the application will not be pursued would avoid fruitless labour. On the other hand the absence of sufficient notes and the refraining from giving reasons for judgments, while operating against the chances of the mat,ter in issue being taken to appeal can hardly be commended. In the latter particular the judgment of Lord Hanworth, M.R., in Robertson v. Owners of S.S. “ Appalachee,” 131 L.T.R., p. 487, merit,s notice. With politeness and point the learned judge says :-

“ The cases involve difficult questions. The learned “ County Court Judge bells us and I can well believe “ it, that he was very grateful to counsel on both sides “ for the way in which the?‘ had put their cases-at “ the same time,” he says, I do not choose to give “ any reasons for the decision which I have reached. ” I am “ sorry that the learned County Court Judge came to “ that election. Judges really ought to give reasons “ for their decisions. Such reasons are helpful to the “ Court of Appeal. I feel it is only necessary to draw “ the learned judge’s attention to this to be assured “ that he will give us full assistance next time.”

AVOIDING THE STATUTE. ---

A step further in the fight of private enterprise to compete with State-grantled monopoly has been reached by the decision of Xr. E. C. CuMen, S.JI., in Hogan v. Parkinson and Sutcliffe. The learned Nagistrate holds that bus proprietors who conduct a motor omnibus service voluntarily, trusting to receiving contributions from passengers are evading the Statute.

The Motor Omnibus Traffic Act, 1926, sought to regulate “ the carriage by Motor Omnibus of passengers “ for hire, at fares, however computed, not exceeding “ 2/- for each person for any journey, counted one “ way only,” (Sec. 2).

The ma,gistrate. on the authority of COX v. Mayner, 70 L.T.R. 403. held that the omnibuses were plying for hire, and entered a conviction accordingly.

__-__. PUBLIC TRUST OFFICE.

-.-- The activities of t’he Public Trust Office will be

reviewed in the next issue of this Journal. The article is written by Nr. F. D. O’Halloran, LLB. The writer of the article was for some years in the employ of the Public Trust Office, but his article dots not deal with any matter which came to his notice while so engaged. Mr. O’Halloran seeks to show that private practitioners in Law and Banking “ derive their full working expenses and profits from those members of the public who receive the benefit of their services, and in addition pay their full share of all forms of taxation,” whereas

the Public Trustee is subsidised by the State, i.e., the general t’axpayer.

SUPREME COURT. Skerrett , C. J. June 24 ; July 7, 1927.

Wellington.

TIMPANY v. N.Z. DAIRY PRODUCE T;“,XPORTER NEWSPAPER CO., I,TD.

Libel-Fair Comment-Test.

.4ction for damages for libel heard before Skerrett C.J. The statement of claim contained two separate causes of action, on the first of which His Honour awarded the plaintiff a0 dam- ages, and on the second gave judgment for t)he defendant.

Sir John Findlay K.C. and Hanna for plaintiff. Blair and Kennedy for defendant.

SKERRETT, C.J., in that part of his judgment dealing with the second cause of action said, as to the defence of fair comment : In order to determine whether the criticism of the plaintiff’s conduct was fair, it is not necessary that 1 should agree in every respect with it, or should be prepared to adopt wholly the langu- age in which it was expressed. I may think the language em- ployed exaggerated, unduly severe, or even rude : but it will not exceed the limit of fair criticism provided that the substance of the criticism is well founded, and provided that the criticism does not impute corrupt or improper motives or is not made t,he mere vehicle for afi attack on the personal character of the plaintiff. Mere extravagance of the language employed will not destrov the privilege unless it is so great, or perverse as to warrant a finding of malice, i.e., that the privilege WBS misused to cover a wanton attack on the character of the plaintiff. Criticism is fair comment if it is the honest, expression of the defendant’s real opinion end if it, is wa.rranted by the facts truly stated. There are t,wo views as t,o the test by which a criticism is to be judged. The first is that it is warranted if a fair minded man might upon the facts bo?za fide hold the opinion expressed in the criticism. This accords with the view s&ted by Buckley L.J. in Peter Walker and Son Ltd. v. Hodgson (1909) 1 K.B. 239, 253 :-

“ But the defendant may nevorlheless succeed upon his “ defence of fair comment, if he shows that that imputation “ of political bias, although defamatory, and although flat “proved to have been founded in truth, yet was an lm- “ putation in R, matter of public interest. made fairly and “ bona fide as the honest expression of the opinion which the “ defendant held upon the facts truly stated, and was in the “opinion of the jury warranted by the facts, in the sense “that a fair-minded man might upon those facts bona fide “ hold that opinion.” Again in Hunt v. The Star Newspaper Co., Ltd. (1903) 2 K.B.

309,‘323, the same learned Judge FR~S :-. “The question for the jury is whether the comment is

“in their opinion heyond that which a fair man, however “ extreme might be his views in the matter, might make “ honestly and without malice, and which was not without “ foundation.” The alternative view is that the criticism to amount to fair

comment must be narrantetl by the facts, or be a reasonable inference from the fa.cts--see per Lord Atkinson in Dakhyl V. Labouchere (1908) 2 K.B. 325,32Q. The same view was adopted, although with some hesitancy by Scrutton J. in the case of Hom- ing Pigeon Publishing Co. v. Racing Pigeon Publishing Co., 29 T.L.R. 389. His personal opinion appears to have been in substantial accord with that of Buckley L.J., though he pre- ferred the formula “ Capable in rea.son of supporting the im- “ putation.” The question cannot be deemed to be settled. Sir John Salmond limits the requirement that the comment must be correct to cases where t,here has been an attack on the persona,1 character of the defendant-see Salmond on Torts, 6th Edn.. p. 530 (par. 7) and p. 533 (par. 8). The questlon is discussed bv >Ir. Gatlev. in his work on Libel and Slander. at, p, 349. ”

It is therefore necessa,ry to consider the fairness of the comment from the two points of view. Was it warranted b:y the facts on which it was founded. If by this is meant, (as I t,hmk it must) was the criticism in substance well founderl, disregarding ex- travagance or want of taste in the choice of the languige in which it is expressed, then I sm of opinion tha,t tho question must be answered in the affirmative. The comment involves no personal attack on the plaintiff nor does it impute corrupt motives.qIt attacks his conduct as a breach of his duty ; but although-the lnngnage used is colonrful and what may be des- cribed as ” Journalese,” I do not think that it goes beyond the domain of what may be fairly called criticism, or the region

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of fair comment>. I think it would be unfortunate if the privilege were denied to a criticism merely because the Judge thought the language employed exaggerated, or the tone unnecessarily discourteous.

Hostler J. May 27 ; June 16, 1927. Wanganui.

KELLICK v. MINISTER OF PUBLIC WORKS.

It, follows from what I have said that I hold that the criticism was fnir comment. The facts were certainly capable in reason of support)ing the imputation.

In my opinion there was no evidence on which 1 could have been asked to find that the criticism of the plaintiff was not honestly believed by the defendant to be true, or t-h& it, wss inspired by a malirious motive. No such submission of fact was made to me.

Solkitors for plaintiff : Findlay, Hoggard, Cousins and Wright, Wellington.

Solicitors for defendant : Luke and Kennedy, Wellington.

Ostler, J. June 29 ; July 5, 1927. Wellington.

IN RE RANKIN, DECEASED.

Administration-Deceased Dying Intestate Leaving Infant Chil- dren--Father of Deceased Substantial Creditor in Estate of Deceased-Letters of Administration Granted to Father- Non-disclosure to Court of Claim Against Estate-Caveat by Mother of Deceased’s Wife--Caveat Filed Before Letters of Administration Sealed-Whether in Time-Letters of Ad- ministration Granted to Public Trustee if Willing to be Ap- pointed or if Unwilling then to Caveator--Administration Act 1908, Section 27.

The deceased died on the 14th Oct)ober, 1926, leaving an estate consisting principa.lly of a small house subject to mort- gage, the equit,y of redemption of which was worth from E200 to $400. Deceased’s wife had shortly predeceased him. He left, three infsnt children, the eldest being a,t the date of his death under seven ,years of age. Deceased’s father moved for the grant of administration to himself. He did not disclose to the Court t,hat he had a claim against the estate for money lent to the deceased amounting to over g4.00. On the 9th November, 1926, the Chief Justice made an order granting administration to him. On the 20th November, before the order was sealed, a caveat was entered on behalf of Mrs. Henderson, t,he mot,her of deceased’s wife, and his childrens’ grandmother. Subsequently, a.motion for the grant of administration to Mrs. Henderson, or in the alternative to the Public Trustee, was filed on her behalf. The ma,tter was treated by agreement of counsel as though the order of 20th November had been cancelled by consent.

Herd for Mrs. Henderson. Crombie for Rankin.

OSTT.ER, .J., said that it was admitted by co,msel for Mr. Rankin that) the caveat was not too late, inasmuch as it had been filed before the order granting him letters of administration had been sealed. This had already been decided by Salmond J. in the unreportecl case of In re Fahy (Wellington Registry).

His Honour said t’hat in so far as the two applicant,s were con- cerned he would wit,hout hesitation be prepared to make an order in favour of Mm. Henderson, for the simple reason that she had no claim against, the estate that might conflict with her duties as representative of the doceased. The fact that Mr. Rankin claimed to be a creditor for a larger sum than the value of the e&ate was a convincing judicial rea,son for preferring the rlaim of the ot,her applicant---see Webb v. Needham, 1 Add. 494. But in the opinion of His Honour the case was eminently one in which t,he Public Trustee should be appointed. His Honour was prepared to grant, letters of administration to him. If the Public Trustee should refuse to act the grant would be to Mrs. Henderson. His Hononr would much prefer to seo t’he Public Trustee accept the position. Mr. Rankin’s claim against the / estate would have to be carefully considered. It might be t,hat he had satisfactory proof that the moneys he cln.imed to have advanced had been intended as a loan. The Public Trustee would be in a much better position to consider the question than would Mrs. Henderson, between whom and Mr. Rankin t,here seemed to be some feeling.

Solicitors for Mrs. Henderson : Tripe and Herd, Wellington. Solicitors for Rankin : Devine and Crombie, Wellington.

Compensation-Public Works-Whether Award of Compensa- tion Court ean be Set Aside by Supreme Court on Motion- Time within which Claim for Injurious Affection to be brought when Land of Claimant’s Taken-Whether Claim for “ Sever- ance ” Includes Claim for Injurious Affection Through Partial Severance-Allegation that Compensation Court Considered Certain Items Not Included in Claim-Award ex facie Good- Public Works Act 1908, Sections 35, 37, 77, 78.

Motion under Section 78 of t,he Public Works Act 1908 to set aside an awnrrl of a Compensation Court constituted under thnt Act>.

By Proclamation dated the 3rd January, 1925, as altered by a Proclamation of 9th May, 1925, certain land occupied by the llnimant ~1x1 asotl as part of a farm, was taken by the Crown under the Public Works Act 1908 for the erection of a transformer station and cotta.ge. A claim for compensation for the land taken dated 1st July, 1926, was served on the respondent, and a copy thereof was duly file? in the Supreme Court at W’an- gnnui, on 17th September, 1926. The claim was heard on the lsf, ?nd, 3rd and 6th December, 1926. The particulars given in the claim were as follows :-

“ This is to give notice that, I claim the sum of fG64 15s. “ as compensation for all loss arising out of the t’aking of the

“aforesaid lands and the construction of the said public work “ which said sum is made up as follows :-

“ 4 acres 23.6 perches of land taken at $100 “ per acre . .

“ Land injurioxiy affected as follows :’ ‘By the s414 15 0

“ severance of land in me and the conseauent, de- “ preciat’ion in the selling and letting value of the “ same (sic) . . . . . . . . . . . . 6250 0 0

At, the hearing the Court received evidence as to the injurious affection of the claimant’s adjourning land likely to arise from the user of the work and from the presence of cert)ain poles erected on such land, the objection of Counsel for the respondent that the Court had no jurisdiction to entertain such claims being overruled.

The C!ourt, on 21st January, 1927, gs,ve it,s award in the fol- lowing words :-

“ We award to the Claimant as compensation in one “ lump sum in respect of all her claims the sum of c373.

“ We first arrived at a sum applicable to her claim if she “had been a freeholder in possession at date of the taking “ and t.hat sum was ZROO. We t)hen reduce5 that to the “ value of a reversionary interest in fBO0 falling in in 9 & years’ “time. We did not follow the ordimarv ‘present, value’ “ ta,bles for that purpose because they “are hased on the “ assumption that all interest can be re-invested at the same “ rate of interest as the principal. That assumption is based “ on an impra,ct*icable policy and would operate unfairly to “the claimant’. We therefore arrived at a sum which, in- “ vested at 6% would, by simple accretion of simple interest “leave the claimant’ with f500 in 94 years’ time. We made “ further adjustments tocover thelossfor9&yearsof thenhnual “ value of the land taken and arrived finally at the sum of “ $373. We award accordingly, and we order the Crown to <‘ pay Assessors’ fees $52 10s. Od. ; Claimants’ wit)nesses’ and “legal expenses and disbursement#s B 12s. 6d.” Tlie award was filed in the office of the Supreme Court at

Wanganui, on 24th January, 1927. The sum awarded was paid into the Public Trust Office by respondent on the 24th Ma,rch, 1927, sixty days after the filing of the award. On the 4th Ma.y, 1937, thirty-moe da.ys later, this motion was filed to set aside the award on the gronnd that it was made as to part without jurisdiction, and that as the br,d part could not be severed, the whole award was invalid.

Izard and Brosnan in support of motion. Treadwell to oppose.

OSTLER J. said t’hnt, a number of grounds were set out in the notice of motion, but upon the argument these had been reduced to three, which were : (1) that all claims except as to the value of the land taken were statute barred, and therefore the Court had no jurisdiction to take them into consideration ; (2) that even if this were not so, the only claim apart from the value of the land was for severance, and there was in law no severance of claimant’s land ; (3) that there had been no claim

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made for depre.ciation of iho land belonging lo claimant, owing to the nature of the works or owing to the poles being upon her land, and that the Court, had :XCI jurisdiction to amend the claim (as to do so would be to add a new cause of action) or to grant compensation in respect of those items as they had not been included in the claim. Tile first of tlleqe ohjec- tions had not been raisetl brfore t)he Compensation Court, hut the other two had been.

The first point to be considered was whether the Supreme Court, had juristliction to enterlain the motion. Isut for the decided cases His Honour should have thought that the only methods by which an award of a Comprnsation Court under the Public Works Act could be sttncketl were prohibition or certiorari. There was no ftatntory provision fur a motion in the Supreme Court to set ix,itle an awrarll, a* there was in ! he Arbitration Art 1908, antI the only inherent Ipoweri of the Su- preme Court was its superirltrntlinp power over inferior Collrt>s, or tribunals exereisin- judicial power?, to src t lea? they did not act beyond their jnrisdirtion. Jt had l)ecn contencled that Section 78 of the Public Works AC!, 1WJ8 WIS n statutory mandate to the Supreme Court to e111 rr.tain the moti:>n. Hut for the fact that His Honour felt constrttincd II~ alltllorily to accept this view he should have tllr)~lglA t,hat that section ha<! nothing to do with the validity of an arvnrd, but rcferretl only to the question of who w-as entitlcql at law to 111e amount of compen- sation awarded. This seernc~i to have beers the view expressed by Edwartls J. in Hallenstein v. Mayor, etc., of Wellingtor, 4 G.L.R. 165, to whom apparentlv tlrc form-r rnses on the point had not been cited. The Court of Appeal, however, In Iinister of Public Works v. McLean, 6 N.Z.l:.R. L’i3, by a majority decided that tile effect of the correspo!lrling sectlon of the Public Works Art 1’182 was to give the Supreme Court jurisdiction to entertain a motion to set asitic the awar- upon the grounds that it was nude without jmisdictioll, and that course was followetl 111-;o in Colenso v. Minister of Public Works, 6 N.Z.L.R. 650, anrl In re Public Works Act 1908,(lQlt~).c.L.R. 547. His Honour therefore felt, bound by authority to hold that there was juris~liction to entertain the motion. But for that authority wit11 whirls His Hopour (lit1 not agree, but by which he was unforl unately bound, he wo111d have been prepared to hold that the payment of the money to the Public Trustee when there was no qucstiolL whatever as to tlle claimant’s right or title to compensation, anrl nbere the only question was whether as to part of the awnrtl the Compensation Court I& exceeded its jurisdictioll. anti I IlpI,efore awarded too much, was an abuse by the respon(lrnt of llis powers under the secxtion. And this especially in view of Seelion 77 (2) which provided (a provision which was not coni aincc! it1 the Act of 188’ upon which Minister of Public Works v. McLean (tit sq.) was clecir!etl) :-

“ The Court may within one month after making the “ award reverse alter or modify the same, and may hear “such evidence an11 make such ordrr as to costs or other- ” wise as the Court may deem just.”

The main grountl of the motion, viz., that a!1 claims as to injurious affection were statute barred, w-ns IIE~~;CT’ txougllt to the notice of the Compensation Court, mrcl His Honour would have thought, that the proper procetlnro irl lhe circumstances was to have applied lo the ComI)ensntion Court itself under that provision to alter or modify its awartl. However, His Ho~lour felt hound by the decision of the Court of Appeal, but tllought, the matter worthy of ronsidrration sl~oldrl it come bdore that Court.

The first ground of tile motion tlepentIr(l 111’0,~ the true con- struction of &<,tion 37 of tllo Public Works Act 1008. 1’0 con- strue that provision Scctioxl 35 must also be looked at. Reading the two sr~lions togotller, His Honour t ho@ tllnt. Secntion 37 meant that where land was taken from a clu~rnant, who thereby suffered consequent ial injury I o his remaillirrg l;mds the period of limitation for a claim hoth for the t nltiliy nntl for the con- sequentin injury was five years. 1.t hat1 been contended that Colenso v. Minister of Public Works, 6 K.Z.L.R. 660, was an authority to the contrary. But that was a case where no land had been taken from the claimant, and which merely decided that where no lantl bad been taken from the claimant, but his claim was merely for injurious affection of his own land caused by the taking of other land, he must brimg his claim within one year. His llonnnr thought, that tile wortls : “ In “ respect of any lands taken ” which appeared ill Section 37 were

intended to include all clnims by a clnimznt whose land hatI heen taken for injurious affection to his remaining lands. Tile claim for severance therefore was not statute barred.

Even if this construction of Section 37 were wrong, never- theless the period of twelve months ran not from the date of the taking of the land, but from the date of the execution of the works, out of which the claim has arisen. There was nothing on the face of the proceedings to show when the works had been executed. It had been contended on behalf of respondent that the date of the taking of the land must be construed as the date of the execution of the works, because by t,he amendment of

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Section 37 containotl in the Seconcl Scbedulc to the Public Works i\mendment Act 1910, “ execution of th3 works” was defined as “ the completion of the ccnstruction of any portion “ of a works where such portion in itself (and without reference “to any other part of the work) causes the damage.” But His Honour could not agree with this contention. The defini- tion had been enacted to get over the effect of the decision of the Court of Appeal in O’Brien v. Chapman, 29 N.Z.L.R. 1053. Tt did not enact that the mere taking of the land for the public work WQS in itself the execution of the work. The decision in Mayor of New Plymouth, 33 N.Z.L.R., 1536, had no bearing on this point.

The serontl gronnrl for the motion was based on Hnndley V. Minister of Public Works, 16 G.L.R., 683, which it had been contended decided that there was no severance in law unless the claimant’s land was pompletely severetl into two parts by the land t alien. But that’ case decided merely that “ severance ” must be construe!! in its ordinary sense. In His Honour’s opinion there could be a claim for a partial severance. His Honour t)hought that, the words of the claim in the present) case were suEfi&ntly explicit to give the Compensation Court jurisdiction to entertain a claim for injurious affection hy partial severance.

As to tile third ground for the motion, it had not been shown that the Court did award compensation for the items complained of assuminp that the Court had no jurisdiction to do so. The President had ruled that the Court could take them into con- sideration, but it by no means followed that it did. The award contaiued nothing on its face lo show that these matters had been taken into consideration.

Motiol8 dismissed with costs.

Solicitors for claimant :, Treadwell, Gordon and Treadwell, Wanganui.

Solicitors for respondent, : Marshall, Izard and Barton, Wan- ganui.

Ostler, J. ,Jun~ 1 ; July 4, 1927. Palmerston North.

LOWDEN v. OROU-A COUNTY COTJNCTI,.

Factories Act 192142, Sections 2 and 9--“ Factory “-“ Place ” -Whether Portable Machinery a “ Factory ” within Meaning of Act.

Appeal on point of law from the decision of a, Magist)ra.te dismissing an information against the respondent. The in- formation charged the respondent with a breach of Section 9 of the Factories Art) 1921-22, in using a portahle stone crusher at a place on the banks of the Manawatu River near Ashurst as a factory, wit,hout registering the same as such.

Cooke for appellant. Elliott for respondent.

OSTLER, J., said that the appc”1 involved the question of law whether a portable stone crusher worked by steam, as soon as it had been hroughtS to rost at any place and used to crush stone, became a “factory” under the Act. defined in Section 2 as :-

“ Factory ” was

” Any building, offire, or place in which tu’o or more per- “ sonci are employctl . . in any handicraft, . and includes “ any building, office, or place in which work such as is or- “ tlinarily performed in a factory is performed for or on I‘ behalf of slocal authority whether for trac?e or sale or not . . .”

Jn His Honour’s opinion the word ‘. place ” as used in the defini- tion implied the idea of perma,nence, and a perusal of the con- text of the Factories Act showed that it had not) been intended by the Legislature to apply that word to each place used by a portable piece of machinery such as a threshing mill or a stone :rusher, which was moved round a district from place to place, %nd whirh was not intended to operate in ox*e place only. His Honour adopted the words of Collins L.J., in Nash v. Hollins- head (1X)1), 1 K.B. 700, 7%.

One had only to look a,t the provisions of the Factories Act, to see that, if npplied to portable machinery intended to be used temporally in different places, the npplication of the pro- visions of the Act to each place where such machinery came to .est to do temporary work would create many absurdities, and ,mpose many harassing restrictions upon the owners without my corresponding advantages to anyone.

Appeal dismissed with costs.

Solicitors for appellant : F. H. Cooke, Pahnerston North. Solicitors for respondent : Haggitt and Elliott, Feilding.

July 19, 1927 BtJTTERWORTXt’S FORTNIQHT’LY NO’P&B.

June 17 ; July 1, 1927. Nelson.

. IN RE JACKSON: FELL AND JACKSON.

Will-Construction-Capital and Income-Loss Incurred by Trustees in Carrying on Apple Orchard-Incidence.

Originating summons to determine whether a loss incurred by the trnstees of the will of R. 13. Jackson, deceased, in carry- ing on a certain apple orchard part of the estat,e of t,he deceased was payable out of capital or income.

The test&or died on 26th May, 1926, leaving a widow and one SO,,. The net valne of the test&or’s estate was close on f40,900, one of his assets being the apple orchard in question. By his will, elated 5th -May, 1925, the t,estator made provision for the maintzenance and benefit of his x&low snc\ only son. He also made due provision for his grandchildren (if n.ny should be horn) and bequeathed various legacies. In the event of there being no grandchildren of the test,ator there was a trust of the ultimate residue in favour of the City of Nelson for providing recreation grounds for the citizens. The will commenced with a trust for conversion of the whole estate with power to the trustees to defer such conversion for as long as they should think fit. and in the meantime to manage a,nd carry on the apple orchard without being responsible For losses incurred in good faith in so doing. Towards the end of the will the following clause appeared :-

“ Provided always that notwithstanding anything herein- “ before contaitted I direct that my trustees shall not carry “on my apple orchard at, Redwoods Valley as an apple “orchard for more than four years from the date of my “ death and shall not expend in so carrying on such apple “orchard out of the capital of my said estate above any “ income or profits derived from such orchard during such “ period more than the sum of t,hree thottsand pounds in all.” From an affida.vit filed on behalf of the t,rustees it appeared

that the apple orchard had in fact been carried on by the testa,tor for the last, few years at a loss in each year. From that affidavit’ it appeared fnrther that) the testator himself had made a practice of treating those yearly losses as chargeable to capital and not to income. The t,rustees carried on the orchard for a year after the testat,or’s death. During that year the resultant loss on the orchsrd was a considerable one. It was admitted at the nrgu- merit t,hat if the losses from the apple orchard were charged to the general income of the estate there would be in effect no income payable to the son of the testat,or while the orchard remained unsoltl although the widow herself would receive not less than f.500 annually out of the income under a special provision to that effect in the will.

Fell for plaintiff. Myers K.C. and W. C. Harley for all defendants except Nelson

City Corporation. Cheek for defentlant Nelson City Corporation.

MA&R~GCOR, J., saitl that, the law on the subject appearetl to be that while a business was vested in trustees in trust for successive tenants for life ant1 remaindermen the net losses on one yea.r’s trading should under ordinary circumstances be made good out, of the profits of subsequent years, and not out of capital -Upton V. Brown, 26 Ch. D. 588. Rut where on the facts it, appeared to have been the settler’s intention that losses on

trust business should be borne by capital effect would be iiven to t,hat intention-Gow v. Forster, 26 Ch. U. 672 ; Under- hill on Trusts, Anstralasian E&I., 251, 252. The question was whether in the present case there was evidence properly before the Court, of such an intention on the part of the test&or. On the whole His Honour thought that such an intention did a.ppear, for the following reasons : (1) The testator’s primary intention obviously was that his only child should be provided for out of his estate, an, ~1 not be left without an income for (possibly) four years after the death of the teetutor; (2) The testator must have contemplate~l the possibility of a yearly loss on the working of the orchard after his death ; (3) To meet these recurring losses the testator expressly authorised his trns-

tees to pay up to $3,000 out of capital ; (4) The testator,durin,g his lifetime apparently made a practice yearly of paymg his losses on the orchard out of capital. His Honour looked upon the clause quoted above as virtualty a direction to his trustees to continue this preexisting practice for not more than four years nor to a graater extent than B,O(?O in all. In other words on the facts of the present case His Honour had come to the conclusion that, it was the testator’s intent,ion that the losses on his orchard business should be borne hy capital. To borrow t,he language of Pearson J. in In re Millichamp, 6‘2 LT. 768, 760 : “ 1 cannot imagine that . . . the testator intended

“that if there was a loss upon the business his daughters

“ should go without any income till it was made up. In “my opinion the losses ought to be borne by the capital ” employed in t,he business.”

In In re Lees, 28 N.Z.L.R. 126, the facts strangely resembled the circumstances of the present, case. In that case Williams J., in the course of a brief and pithy judgment, put the crucial point, in a nut shell when he sairl at p. 125 :-

“ There is also t,he further consideration that, during the “ life of the testator, when he made a loss he treated it a,s loss “ of capital.”

Solicit,ors for plaintiff : Fell and Harley, Nelson. Solicitors for defendants : Pitt and Moore, Nelson.

MacGregor J. June 14, 1927. Nelson.

IN R,E ESTATE OF JOHN MoDOUGALL. DECEASED.

Administration under Part IV of Administration Act 1908- Claim for Wages for Period Within Four Months of Date of Death but not Within Four Months of Date of Order for Ad- ministration--Whether Claim Entitled to Preferenee-Bank- rupteg Act 1908, Section 120 (d).

Application by Official Assignee of the estate of John McDou- gsl, deceased, for directions. Ry order of Court, tlnled 21st, Fehruarv, 1927, made under Part IV of the Administration Act lRtj8, the Official Assignee at Nelson, was appointed to administ,er the estate. John McPougal died on 19th August. 1926. Included in the proofs of debt admitted by the Official Assignce was one by a creditor for wages amounting to f46 1s. 6d. for t,hc pcriotl 1st Juno. 1926, to 18th August, 1926. Thr Of- ficial Assignee dosired the direction of the Conrt, as to whether or not this claim was entitled to preference antler Section 120 ((1) of the Hanltruptcy Act, 19(%; this question rlrpcndinp upon t be date from which t,he period of four months mcntionetl in that Section was to be calculated.

Fell for Official Assignee.

MP cCREGOR, J. (orally), sai(1 that, he thought t,hnt hc shouI~l art on the dictum of Richmond J. in Ex parte Weldon, 14 N.Z. L.R. 66G, 669, an11 hold accordingly that the dale of Mc.Dougnl’s death was to be taken as corresponding with the time of bank- ruptcy for the purpose of the 13ankruptcy Act 1908, Section 120 ((1). No express provision to that, effect appeared in the Administration Act 1908 (Part IV), but such a provision might fairly be implic~l from the language of Section 64 (e) of that Act, which dealing with the frandulent~ conveyances of the b:mkrupt referred to “ the date of his deakh ” as being the critical date. In ICngland the corresponding stat.u+ory provision to Scc- tion 120 of otn Jktnkruptry Act rnatle clear provision on the point. By Section 33 (5) of the 13ankruptcy Act (Eng.) 1914. it was provicle~l that the Section should apply in the case of a person who tlirtl insolvent “ as if he were a bankrupt, and as “if the date of his death were substituted for the date of the “ receiving orrler.” That rule appeared to he a reasonable one, and in the absence of a contrary indication in our Statutes His Honour thought it c!esirable to follow the English law and practice on thr subject. His Honour directed the Official Assignee that thr period of four months was to be calculated as from the tleath of the debtor.

Solicitor for Official Assignee : Crown Solicitor, Nelson.

-------

On t,he motion of Mr. T. M. Wilford, Mrs. Annie Ha,rriet Down, M.A., LL.B., was, on the 24th June, admitted as a bar- rister and solicitor of the Supreme Court, by the Chief Justice, Sir Charles Skerrett.

Educatecl first at the Mt. Cook School, Wellington, she pro- ceeded by scholarship to the Girls’ High School, there gaining t,he Dux gold medal of her year. She was one of t.he first lady students to take the Law course at Victoria College. Miss Tasker, as Mrs. Down then was, however, abandoned the study of Law and completed the M.A. Degree.

Returning to Wellington a few years ago. Mrs. Down carried out her previous intention, and completed the Law course, and obtained her LL.13. It is Mrs. Down’s int,ention to practice in Wellington.

130 BOTTERWORTR’S l?C

CONTEMPT OF COURT.

The publication of a new book on Contempt of Court, by Sir John Fox, calls attention to a subject the import- ance of which is apt to be overlooked. Sir John Fox was the author of the section in Halsbury’s Laws of England dealing with Contempt, Attachment and Committal, and has, both before and since the publica- tion of that work, contributed numerous articles on the history of the subject to the “ La,w Quarterly R’eview.” It is to his writ)ings that lawyers in all parts of the English-speaking world turn for authoritative reference .n these matters. 1

Wherever the Common Law of England forms the basis of the law of t,he land, the jurisdiction of the superior courts to deal summarily with persons ob- structing or hindering the ndminist’rntion of justice, whether in the fact of that court or out, of court, is one of the cardinal principles of the law. Obstructing t)he course of justice may coiisist in disturbing the judge or trying to influence the jury, in scandalising the court or attempting to bring it into disrepute, in commenting unfairly on pending proceedings, in hindering the parties or wiOhholding or perverting the testimony of witnesses, or in forging or tampering with writs and ot)her process ; or in otherwise abusing the court’s procedure : or it may consist in disobedience of the judgments, orders or other process of the court, of such a kind as to call for disciplinary action in the public interest,. From this enumeration, which is by no means exhaustive, it will be seen that the jurisdiction covers a very wide field. For many of the offences mentioned, other reme- dies arc provided, as alternatives-usually informntiou or indictment---but oftcrt summary punishment by at’- tachment or committal is the only practicable way of vindicating the public interest, and in some cases it, is the only way-for instance, in dealing with a witness who refuses t,o give testimony. The jurisdiction is one of the greatest safeguards of our iiherty. A very important application of it at the present day is to prevention of unfair newspaper criticism of pending or current proceedings-“ trial by newspaper “-as it has come to be called. The power t’o punish summarily is resorted to only where the administration of justice would be hampered by the delay involved in pursuing the ordinary criminal remedies ; but, though latent: it remains the foundation of all legal procedure.

In England the superior courts’ power of punishing criminal contempt summarily in all cases has been established so firmly and for so long, that since the eighteenth century it, has been generallv assumed that the pract’ice is founded on immemorial usage. The opinion to this effect expressed by Mr. Justice Wilmot, in The King v. Almon, in 1765, has been adopted and approved in a long series of authoritative cases since that date. In “ The History of Contempt of Court,” Sir John Fox shows, however, that, in the case of criminal contempt committed out of court by a stranger to the proceedings, the offender was in early times pro- ceeded against like any other trespasser in the common law courts, with the assistance of a jury, unless the contempt was confessed. The penalties at the present day imposed for all criminal contempts are both imprison- ment and fine ; but the author shows that such con- tempts were formerly punished by imprisonment (from which indeed the offender was entitled to. be discharged on “ making fine “), and not by pecuniary penalties. “ The evidence ” (to quote from the work cited) “ will

,R -. I

TNIGHTLY NOTES. July 19, 182’:

show that the practice of trying cont’empt,s out of court summarily and punishing them by the double penalty was first established in the seventeenth cen- tury.”

Our Courts in New Zealand have from the beginning followed the modern English practice in contempt. The most interesting of the earlier reported cases is Campbell v. Kennedy and Others : In re “ The Evening Star” (N.Z.L.R., 3 S.C. 8) in 1884, a motion to commit the proprietor, printer and publisher of a newspaper for contempt of court in publishing a summary of a state- ment of claim, containing grave charges of fraud, before even the time for filing defences had expired. The judgment of Williams J., though short’, contains some apt observations on the considerations which apply t’o this class of contempt, and on the nature of the jurisdict)ion. Of later casts, In re Hogg and Christie (19 N.Z.L.R’. 856, in 1901) was a motion for writ of attachment for obstruct’ing a sheriff’s officer in execut ing a warrant to seize sheep under a writ of sale ; and In re Layfield (12 G.L.R. 346, in 1999) contains a useful moral for Solicitors about altering documents on the file without leave of the Court.

In Rex v. McKinnon (30 N.Z.L.R. 884, in 1909) Denniston J. held, following The King v. Parke (1903) 2 K.B. 432, and The King v. Davies (1906) 1 K.B. 32, that the Supreme Court has power to punish by at- tachment contemps of inferior courts. This was a publication of evidence, in wilful disobedience of an order forbidding publication made by t,wo justices.

The case Attorney-General v. Blomfield and Geddis (33 N.Z.L.R. 545, in 1913) is still fresh in mind. The proprietors of the it New Zealand Observer ” were before t’he Full Court on. motions for committal for contempt,, for scandalising the court by publishing an objectionable cartoon of a8 judge. The Court held by a .majority t’hat the, cartoon in question, though pro- bably libellous, was not calculated to interfere wit’h t,he administration of justice ; and the motions were dis- missed. This case is likely to remain a lone decision on jurisdiction to deal with the particular kind of con- tempt in question ; but there were other point’s raised, referable t,o contempts generally. In 1917, in t,he case of Re Holland, Rex v. Green (1917) G.L.R. 424, the Court punished summarily by imprisonment a witness in a criminal proceeding who refused to answer relevant questions.

The case of In re Cobb ; Nash v. Nash (1924) N.Z.L.R. 495, a decision of the Full Court, establishes beyond doubt that the power of the Supreme Court to punish criminal contempt summarily has not been affected by Section 5 of the Crimes Act 1908,--the Court adopbed the opinion of Sim J. in Attorney-General v. Blomfield (supr~,) on this point. In re Cobb is an instance of summary punishment of a witness in separation proceed- ings for improperly attempting during the t’rial to in- fluence a juryman in his verdict.

There remains to mention only the well-known cases of Attorney-General v. Davidson, Dunkley and Robson (1925) N.Z.L.R.. 849, motions for committal for contempt for publishing in the daily papers comments on the de- meanour of a witness during the Mouat murder trial. The opinions of the majority of the Court of Appeal- particularly the judgment of Reed J.-indicate the limits of a newspaper’s undoubted right to publish ,.a fair and accurate report of criminal proceedings during the hearing.

N. F. L.

July 19, 1927 BUTTERWORTH’S FORTNIGHTLY NOTES. 1%

THE N.Z. CONVEYANCER. (Conducted by C. PALMER BROWN).

LEASE OF MILLING TIMBER. A.B. being registered as the proprietor of an esbate

in fee simple subject however to such encumbrances liens and interests as are notified by Memorandum underwritten or endorsed hereon in all that piece of land situated in the cont’aining IN CONSIDERATION of the covenants powers and provisions hereinafter contained doth hereby LEASE to CD. All those the t,imber and timberlikc trees and undergrowth now growing or to grow on the said land together with full and free liberty license power and authority for the lessee to cut down sell remove and carry away all such timber and timberlike trees and undergrowth doing nevertheless as little damage or injury as may be to the tenants or other occupiers of t,he said lands And also t,o make construot’ occupy use and enjoy all such mills tramways pat,hways pits bridges cut*tings dams barriers and works as may from time to time be necessary or convenient for the purpose of cutting down selling removing and carrying away the said timber or for manufacturing or stacking the same or any other timber sawdust or debris and to use any rivers or streams flowing through or along the boun- daries of the said land for the purpose of floating down any such timber or other produce (and also for t’he dis- charge of sawdust from such mills) and also to do all such other acts and things and to use all such devices and means for any of the above purposes as shall or may be found necessary or convenient according to t’he practice of sawmillers in t’he dist’rict TO HOLD use exercise and enjoy the said timber and the liberties powers and authorities hereby granted and all and singular the premises hereby demised for aad during the term of day of YIELDI&mA& PAYING therefor the rents and sums following Subject to the following covenants conditions and re- strictions that is to say : .

1. The lessee will punctually pay all rents and moneys to become due hereunder without any deductions what- soever.

2. The lessee shall before the expiration of the said term cut out all timber on the said land that is or may be reasonably accessible and fit for milling and in the course of such cutting will cut t,he timber on a face so far as possible.

3. The lessee shall commence the business of saw- milling on the said land within twelve months from t,he day of and shall install on the said land or on t’he neighbouring land for the pur- poses of working the said land a sawmill and plant of the cutting capacity of at least feet’ of timber per day.

4. The lessee shall erect gates straining posts and cattle stops and shall keep the same in good repair at all points where the trams of the lessee shall cross the fences of the lessor and shall at all times when the said gates shall not be in use keep the same pro- perly closed and locked and shall indemnify and keep indemnified the lessor against all damage whatsoever whether from cattle trespass or otherwise arising directly or indirectly from any breach of these provisions.

5. The lessee shall not allow any dogs to be or re- main on any part of the said land except such as may properly and usually be used by his bullock-drivers in the ordinary course of their occupation.

.-

6. The lessee will prevent the accumulation of saw- dust and wast’e material on the demised premises and will periodically and at least once in every year of the said term cause all sawdust and wast’e material coming from any sawmill on the demised premises to be con- sumed by burning the same (and will prevent sawdust from being carried into the streams on the said land).

7. The lessee will not during the said term assign underlet transfer mortgage or set over the demised premises or any part thereof or otherwise by any act or deed procure the demised or any part thereof to be assigned sublet transferred mortgaged or set over or part with the possession thereof or any ‘part thereof without the consent in writing of the lessor first had and obt’ained Provided that such consent shall not be arbitrarily or unreasonably withheld and that no pecuniary or other consider&ion shall be required t,herefor. And it, is hereby agreed and declared as follows :-

8. The lessor shall pay all rates taxes assessments and outgoings payable in respect of the said land ex- cepting in respect of the area of ten acres hereinafter referred to with the buildings for the time being t’hereon.

9. At the expiration of the said term or sooner if the said bush shall be cut out the lessee having paid all rent hereby reserved and having observed and performed all covenants provisoes and agreements on his part herein cont’ained and implied shall be entitled to remove from t’he said land all plant machinery tramways bridges buildings and works erected and brought by him on the said land and then being standing thereon but the lessee shall not attempt to remove the same or any part thereof from the said land or from the said neighbouring land until all rents hereunder shall have been duly paid and all covenants on the part of the lessee duly performed and observed.

16. The lessee shall be entitled to select and fence off an area of not more than t,en acres from the lands of the lessor and to use the same for the purpose of a mill site during the said term without any further pay- ment whatsoever.

11. The lessee shall be at liberty to graze stock on part of the said land being provided that the lessee shall fence the same with a sufficient fence within the meaning of The Fencing Act 1908, and shall not call on or require the lessor to contribute to the cost of construction or maintenance thereof and the lessee shall pay to the lessor a rental of during the occupation of the same.

12. If and so soon as the lessee shall have cut out and ceased to work an area of the lessor shall be at liberty to burn off such area Provided that such fire shall be lit at, such time and at such place as may be agreed upon and in default of agreement at such time and place as may be fixed by the Chairman of the County Council and the lessor shall not be liable for any damage done by such fire to the lessee his mills trams or other property except in case of the negligence of the lessor Provided t,hat the light’ing of a fire at a time and place so agreed on or so fixed as aforesaid shall not be deemed t’o be negligence.

13. If the lessee shall make default in payment of any instalment of the said rent on any of the days herein appointed for payment thereof and for thirty (30) days thereafter whether the same shall have been formally or legally demanded or not or shall made de- fault in the observance or performance of all or any of the covenants on his part herein expressed and implied the lessor shall be at liberty without giving any not)ice or waiting any t’ime whatsoever to determine these

(Concluded on page 132)

132 BtJTTERWOR’rH’S FORTNIGHTLY NO!I’%S. hiy 19, 1927 -__ .-~ -

CROSS-EXAMINATION: A Gossip with Students (By B. J. DOLAN)-

(Continued from page 121.)

(6.) Preparation for Cross-examination. A well-prepared brief, of course, will always contain

much material for cross-examination, but the plan of campaign may have to be entirely shifted to meet a changed battle front so that alertness and spontaneity must be in ready reserve. Russell’s bark at his note- taking junior to “ stop writing and wat,ch the case ‘* is more practical now-a-days when Mr. Associate types his speedy records and lets you obligingly have your carbon as each page is finished. (Beware of loading him wit,h medical cases, however ; if hc is so burdened, watch him curse inwardly when “ par&al,” “ Ecchymosis ” and all the rest of the scientific jargon is intoned by the experts). As the witness proceeds write down your questions in a bold hand, numbering each. And when you get your carbon, locwlise and correspondingly num- ber the points where your queries come in.

As to the well-cut absolutely excellent and scientific style of preparation, I have never experienced a case in which the salutary effects of scrupulously conscientious a~llcl

careful preparaiion meticulously

were so revealed to me as by the eminent counsel who opposed me in 1917, in 36 N.Z.L.R. 919. In that case a Borough under statu- tory authority constructed a drain having an out’fall into a river, held on the evidence to have been a “ tidal ” river at the time of construction. As it was found that in wet seasons the waters of the river used to back up in the drain, the Borough, acting under the advice of a capable engineer, completed in 1914 a pumping station with the object of increasing the pressure in the drain. In August, 1916, after heavy rain, the pumping system was put into operation and simultaneously the plaintiffs’ land was flooded. My clients, the plaintiffs, sued the Council for damage to land and crops. We alleged infer alia negligence so far as the construction of the pumping plant wa,s concerned. The case ultimat’ely went off principrdly on the point of our action being barred by the Public Works Act because the claim had not been made within one year of the installation of the drainage system, though the damage had not been done till after two years. (Edwards J. support,ed the suggestion of Stout C.J. in a previous case that remedial legislation should be introduced, but the perse- cuted hotel licensee and suffering bookmaker still occupy too much the minds of our legislat80rs. Their Honours’ remarks have been “ cries in the wilderness.” Will some industrious young practitioner compile the many similar judicial suggestions as to remedial legislation and will our efficient law societies endeavour to see them through T I think that law societies should periodically perform this duty.) Now, apologising for this long diversion I ret,urn to my drainage case. I briefly refer to my feeling when I first ascertained the strength of my opposition. It was a temporary elation from t’he consideration that outside help was needed but the Celtic reaction soon arrived. I saw myself as nothing but a diminutive frog about t’o be blown to the zenith by a mighty pikce of artillery. Bateman could have made of me a very companionable caricature to t’he “ Man who Revoked at Bridge.” But at, last, as in “ Shamus O’Brien ” “ the day of the Thrial kern on.” My first expert, to my mind, gave evidence considerably more honest than “ expert ” : (You all know the classes

of liars : (1) The liar ; (2) The d--- d liar, and (3) The expert. “ And ” interrupted brother Bill, “ you for- get my brot,her Charlie “). And then the deadly cross- examinat,ion started with models, diagrams, blue prints complete and a steady, dominating and scientific bombardment. My experts fell like Milton’s Angels and the leaves in Vallambrosa, and then ca,me the masterly opening for the Defence. His KC-ship began and there was no smell of the lamp on the great achieve- ment. He opener1 with the action of tides and rivers till physiography seemed like the most glorious of “ movies.” A discourse on hydraulics followed which interested the common jury as would t’he most sapient remarks on picking the winner. A diversion on sanita- tion engrossed their minds to the absolut’e exclusion of all thoughts on t’he selection of the next Rugby team and a humorous peroration on the value of our lands and our potato crop in particular, a subject nationally congenial to both myself and learned counsel, left my case at about the nocturnal temperature of Mesopotamia as described to me by an old Cockney-digger client. He told me that at night “ it froze like ‘ell.” (As he had previously told me that when it blew there it blew as beforementioned and when it was hot it was similarly hot, he had no doubt exhausted his metaphor). But I made an earnest vow t,hat at the next expert case in which I got involved I would go to the blacksmith and make horseshoes, or the baker’s and turn out a batch, to the stables and ride a hurdler, if the exigencies of t,he case so dictated, or, that, even to ascertain the environment and atmosphere, I would consume an illegal post-six o’clock t’ankard in order t’o gain ex- perience for my next “after-hours.” tourney wit’h the Sergeant.

To THE STABLES AND RIDE A HURDLER.

Another svqpstion in preparation for X-examination.

(To be confinued)

(Coiatinued from page 131)

presents but such determination shall not discharge the lessee from the payment of any moneys t)hen in arrear or from the consequences of any preceding breach of covenant’.

And it is hereby declared and agreed that the power to distrain exerciseable hereunder shall extend to the mill plant and ot’her chattels of the lessee whether t,he same shall be on the land above described or on any adjoining land.

AS WITNESS the hands of the parties hereto. The copyright of these conveyancirzq precedents and annota-

tions is expressly reserved to the author, and publication in whole or in part is forbidden.

July 19, 1927 BUTTERWORTH’S F -- -.. -___

THE CASE OF COKE v. BACON AND CONTRA.

(BY L. A. TAYLOR.)

It was inevitable that they should become ant’agonists. Temperamentally they differed as the poles. Bacon was a courtier, debonair-goodlooking. He was also a genius. His earliest work showed him to be pos- sessed of reasoning powers of a very high order, but he lacked business acumen and t,he mathematical mind. He began his career in debt and died in debt, and he was never at any time wholly free from monetary anxieties. It was an inauspicious incident that flung him into contact wit’h young Edward Coke, a man of no genius and not many manners, but yet of an in- satiable capacity for hard work. How well these two would have run in double harness had their tempera- ments permitted ? Besides being a colossal worker Coke had a head for business. From t,he outset of his career, he applied himself to acquire wealth by any means. There is told the story of a pun of which he was guilty. Having much land, he coveted the Castle Acre priory. On James I’s remonstrating with him on the acquisition of so much land for one subject he replied with much pleasantry, “ I will add but’ one ‘ acre ’ more.”

Bacon very early showed that he was a,n orator of no mean ability. It is said that Queen Elizabeth attended his pleadings. He was particularly per- suasive and effective in parliamentary debate.

On the other hand Coke as an advocate delighted in brow-beating trembling criminals and treat’ing wit,h rudeness his professional brethren. As an instance of his style it is said that when Raleigh was standing trial for his life he was addressed by our subject, in these words : “ Thou art a monster ! Thou hast an English face and a Spanish heart thou viper, for I ‘ thou ’ thee thou traitor.”

It was in 1594 that the parties fell foul of each ot,her* It was over the Attorney-Generalship. When Sir Thomas Egerton became Lord Chancellor, the Earl of Essex moved heaven and earth to secure the vacated office for his friend Bacon-but Burleigh, Bacon’s uncle- felt that Coke was the better lawyer and appointed him. Perhaps he feared the suggestion of partiality.

The rivalry which the contest excited between these two eminent men gradually passed from storms of anger into implacable hate. Coke obtained the At- torney-Generalship but could have mollified Bacon with the Solicit’or-Generalship-but he did not, and so Bacon swore revenge. Coke-for a second time- filled Bacon with rage. His first wife having died, nine months sufficed to heal the wounds and he t&hen laid seige to and capt’ured the heart of the widow Lady Hatton, cousin to Bacon, and 26 years junior to Coke in age. He gained the fort but got no booty for to Coke’s chagrin his newly-wedded wife went to the Continent to smother her disgust for her legal husband in a whirl of pleasure. At Coke’s discomforture Bacon rejoiced mightily. Coke upon Lyttleton is interesting but, Coke upon the Instit#utes of Marriage would be vastly enter- taining. The hearts of Coke and Bacon for a time beat as one in their attempts to render obedience to Good

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RTNIGHTLY NOTES. 133 I__- __-_ - __-____--_ _~ --.- L

Queen Bess. The pity is that the motives of both were suspect. When King James assumed power he allowed matters to remain as he found them-Coke remained Attorney-General. In this office scope was provided for the play of his forensic powers in the trial of Sir Walter Raleigh and the Guy Fawkes conspirators. Accused persons were not in those days allowed counsel -even if they would pay them-and so Coke in his badgering and brow-beat’ing had it all his own way. But Coke was elevated to the Common Bench and he then found that conduct on the part of his King quite acceptable to him as Attorney-General was a very different article when sought to be imposed on him as one of His Majesty’s Judges. He was too good a, lawyer to yield his independence and so Bacon being Attorney-Genera.1 and pulling the wires, Coke was removed from office. Bacon became Lord C,hancellor. His “ Novum orgaum ” brought him fame. His in- fluence increased-his voice took on an added thrill of authority-at all of which Coke chewed the cud of hate and envy. But his was no natlure to be easily cast down. His partnership with Lady Hatton had produced a daughter. Her life had been rocky-one can imagine that ib would be--Coke was not above selling her and he desired to support his own case by marrying her upon the Duke of Buckingham who then had the King’s ear. Coke succeeded in his plot, but like his father-in-law previously Buckingham was rewarded with only t)hc husk-his newly-acquired bride left hurriedly mit.h one Hoffard, for parts unknown. Coke however got the Lord Treasurership. Later on a new parliament was called together and in it, t’hrongh and because of Baconish irrfhlence there was no Lord Treasurership for Coke. But, he waited. He also gave up High Church views and put on a puritan coat. The commoners were then st,anding Rolidly against the preroga,tives of the King M’hen “ sul~plv ” came up, Coke with malicious glee, seeing the drift of things, moved an amendment a)gainst the King’s prerogative in monopolies and it beca,me Coke’s duty, he being Chairman of the Committee t’o take the amendment to the Bar of the Lords and there to place it in the hands of Lord Chancellor Bacon. No pen picture will do this scene justice. A canvas may reproduce it, but best of all it can be left to the imagination. Bacon’s whole body writhed and fermented within him. For rumours of peculat*ions and bribe-taking by him had come back to him. He knew assuredly that Coke was

’ licking his chops in a&c ipation of t’he kill, and realising that the remorseless hate of his arch-enemy would tear down any defences that, he might set up, Bacon con- fessed judgment’. One wonders whether his retirement gave Coke a’s much satisfaction as he would have got out of dest’roying a defence. Unlike Coke, Bacon had no heart t’o force himself forward again a’nd so he and Coke never aga’in crossed swords.

In the nest Parliament, Coke’s antagonism to the King so increased that it, earned him a dungeon in the Tower, quite likely t,he one formerly occupied by Raleigh, and t’here he had time in which to ruminate upon the vagaries of Fortune’s wheel.

The Prince of Wales procured his discharge and re- placement in office, and to Coke’s everlasting credit the Petition of Right was due to him. It was the summit of his life work. It became Law in 1628, and in 1634 Coke died at the age of four score years and three.

134 BUTTERWoRTH’S FORTNIGHTLY NOTES. Juiy 19, 1921: -~ ____

LONDON LETTER. Temple, London.

25th Xap, 1927. My Dear N.Z.,-

The rumour is that Lord Justice Bankes is definitely decided (the definition of the decision being brought about by the fact, it is said, that Lady Bankcs has decided also) to quit at the end of t’he legi~l year, that is in July ; whereupon “ Tom Inskip ” as everybody calls the Solicitor-General whether they know him or not, will become a Lord Justice of Appeal and F. B. Merriman will become Solicitor-General. I wish it could so be ; but’ I doubt if Inskip would content him- self with the succession to Eldon Bankcs. They say he is marked down to be thr next Speaker, a post’ for which, having regard to his substantial and solid re- liability and his deliberate and never hurried method, he is, I should say, singularly ill-fitted. Hon.rver, I have not the arranging of these mat’t’ers : if I had, it is what may be called an ‘. open secret1 ” that F. B. Merriman would become a Law Officer on the first available occasion.

But let us get rid of t,he durned decisions first. I do not suppose that Oakley v. Wilson, the principal case of the period and the one most likely to be rtaported permanently, interests you, for I concrire that our Rent Restriction Act’s bore you, being no concern of yours. For such a conseit there is t’his hidden motive, that, along with all other decent-minded. clean-living lawyers, I simply detest them myself, and I rt>joice at every excuse to be spared a reference to them. The question, I will admit, was novel and not unimportant’ : it was to decide exactly what is and what is not “ a landlord.” This reminds me, I don’t quite know why, of the exhausted examinec in the law who, being asked what a “ nuisance ” was, in an impulsive gesture and a reckless disregard threw everything up, and answered briefly “ a damned nuisance.” He has made, I am told, a very good soldier. . .

There is a comparatively large number of Divisional Court decisions, both in the Civil and the Crown papers and apart from the immediately foregoing. Most, of them turn upon the construction of particular Act’s : Woodward v. Oldfield, the necessity of sending a mentally defective child to a special school, our Education Act 1921, sections 42, 53, 170 ; Evans v. Planeau, the dif- ference made in a name by adding “ & Co.” to it’ (“ The little more, and how much it is ! “), our Aliens R#cstric- tion (Amendment) Act 1919, section 7 : Holy Law, etc., Burial Board v. Failsworth U.D.C., the necessity of physical contact to bring abou$ a,s between two heredita- ments, a due attachment’, our Private Street Works Act 1892, section 16, “ burial ground attached thrrc- to . . .” ; all these being decisions of the combined brains of Lord Hewart, C.J., Avory and Rhearmnn JJ. On the civil side, that is from the County Courts on appeal, appear as well as Oakley v. Wilson, Temperance Loan Fund V. Erwood, the discretion of a Judge, where t’here is trial without jury, to deprive a successful plaintiff of his costs, he having made “ an exhorbitant claim by carelessness or recklessness.” True, the decision was actually concerned with t’he discretion of a County Court Judge ; but his, in this regard, is the same dis- cretion as the discretion of a High Court Judge trying an action without a jury. These are decisions of Acton and Talbot, JJ. I devot’e a separate paragraph to their third.

In Maenaghten v. Douglas the medical actions of unregistered persons are discussed, a propos) our Medical Act 1X58, sect,ion 32. Now, I know that at least one among you is guilty of medical actions, while being an unregistered person. . . .

I do not know how many of these cases have been mentioned in the London “ Times,” but I must refer you to the Tuesday to Saturday issues of that daily journal, over the period in view. The garnishee-order decision ; Richardson v. Richardson (“ Times ” 13 May), t’he decision as to Innkeepers’ Liability in respect of a lost motor car (Aria v. Bridge House Hotel Ltd., “ Times,” 14 May) the Revenue Paper reports, and the collection of decisions, in general, in the “ Times ” of Saturday last, 21 May, may be confidently recommended t’o your notice, as connoisseurs. Dale v. -Metcalfe is, I think, a particularly interesting revenue decision, against the Crown be it noted. Section 25 of our Income Tax Act 1918, provides, as you will remember . . * I repeat, “ as you will remember ” . for a relief to persons for whom income has under a trust been accumulated contingently upon their achieving a cer- tain age. In this case it was decreed, by the trustor, that income so accumulated for a cestui que trust should, upon her achieving the contingent age, be not paid out to her but be invested as capital and be held upon trusts whereunder she was to enjoy a life interest and never attain an absolute. Rowlatt J. held Ohat she was entit’led to claim the relief, none the less.

There are signs of rather more activity in t’he Chancery Division, as to decisions of interest. No sane person, other than those devoted to the practice of our new Laws of Property (if any of these be sane st’ill), could regard decisions on the new Laws aforesaid as decisions of interest :! Three cases rnay be noted : Ex parte Burdett Gouts : re Columbia, Bethnal Green Market and Approaches, as to payment of money out of Court, when it has been paid in under section 76 of our Lands Clauses Act 1545, and, the claimant shewing a title by possession only, it remains to be proved whether there are not other parties interested. lt was Romer J. who was let loose upon this sensational problem ; and his also was the decision, in the foreclosure action, denying to the plaintiff the protection she claimed from the incidence of laws of limitation : our Real Property Act’ 1837 as amended by the same of 1874. In Williams v. Barton Russel J. gives, and explains, a useful decision upon the applicat’ion of the principle that a trustee may not make a profit out of his trust, the circumstances being not dissimilar, but, as it was held, distinguishable from t’hosc in the case of re Dover Coalfields Extension Ltd. (1908) 1 Ch. 65. There is lastly (and I am not certain that it does not const’itute a contempt of court to t’akc it last’ly) the decision of the Court of Appeal, In re Paget upon that always interesting point, as to questions tending to incriminate asked of the bankrupt in the public examination and not desired, by him, to be answered. I think I have referred you t’o this case beforr, in these let&s ; he that so or be that not so, compare our Bankruptcy Act 1914, section 15, and con- sider In re Atherton (1912) 2 K.B. 251, and have done with all these statutes a)nd cases and listen to a litt)le more gossip :-

The Trades Disput’es Bill drags through its weary programme of scheduled disputing in the House, in Committee, and they say that Simon has knocked t’he bot’tom out of Hogg’s reputation in their dispute about it. 1 have no doubt Hogg will survive, even if he has suffered a buffet. The article of Mr. Justice MacKinnon in the Cambridge Law Magazine has caught the older

July 19, 1927 BUTTERWORTH’S FORTNICtHTLY NOTES. -____- _____ --

lawyers’ eyes, especially by reason of it’s advice t,o the young lawyer never on any account to make a jolic: in the course of his professional career. The pundits appear to take this in all solemnity : and some of them (on paI)er) even go so far as to suggest that a lit’tle pleas- antfry on occa&n may not he amiss ! blacKinnon I. has the laugh of t)hem : I know him, and hc did not mean it quit’e like that. He has often said that Tbco. Matthew must necessarily have been the greatest Junior Counsel of the day, had he not had the mis- fortune early to disclose his happy sense of humour. MacKinnon J. meant to say that the corqlete abRenc?e of, and antipathy to humour in one’s employers is a thing one should reckon upon as a certaint,y, and that not merely in the form of a, negative a’tt)ributo but in the form of a positive disease . and a malignant’ disease at, that.

But we must chatter no longer. I wish you all prosperity and I say that, if your law is as good as your apples (of which I have just received a case from Mycr s), you dcscrrc it.

Yours ever,

INNER TENPLAR.

BENCH AND BAR. -_-.-

During the last six months the following admissions to the profession have heen madein Ch?stchurch : Barristers & Sn1icitor.s : Messrs. J. I-1. Williamson, F. C. Coombe. Solicitors : Messrs. G. C. Dec. Drury, A. S. Lyons, W. 13. T. Leeto, A. W. 8. Smithson, .J. A. Johnston, S. C. Read, C. G. Penlington, R. N. C. Hill, E. J. Brugos, W. A. T. Till. Mr. J. H. Williamson has com- meneed to practice on his own account.

Consequent on his appointment as R,hodos Scholar 1927, Mr. A. L. Haslam, LLM., relinquishes his position with C. S. Thomas, Esq., as from 3lst July. His place will be taken by Mr. E. S. Bowie, at present with Messrs. Weston, Ward and Lascelles.

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Mr. E. W. Reeves, late of Reefton, has commenced practice in Christchurch. His RU~C~~SO~ in Reefton is Mr. L. E. Morgan, who is practising under the name of Reeves 8: Morgan. The latter was until recently a Solicitor on tho staff of Messrs. Duncan, Cotterill Bs Co., Christchurch.

I

His Honour Mr. Justice Sim, on June 17th, at Dunedin, admitted as Solicitors of the Supreme Court Mr. George M’Crea Salmond (on the motion of Mr. F. B. Adams), Mr. William Ralph Spencer Owen (on the motion of Mr. H. H. Walker), Mr. De& Calvert Muir (on the motion of Mr. A. H. Tomkinson), and Mr. Thomas Adamson Kinmont (on the motion of Mr. J. C. Stephens),

Mr. Ii:. D. Andrews was, on June ZSth, at Wellington, admitted by. the Chief Justice, Sir Charles Skerrett, to be a solicitor of the Supreme Court, on the motion of Mr. N. A. Foden.

Mr. L. F. Rudd, LL.B., has commot~ccd the practice of hia profession a4 a Barrister and Solicitor, at Eldon Chambers Auckland. Mr. Rudd commenced his University Course ai Otago University and completed at, Auckland University College For the last seven years he was Managin.g Clerk to Messrs Hayes, Ziman, Buttle and Darling ; previously havina beer with Mr. Allan J. Moody and Mr. 9. Hanna.

Mr. H. A. Adams who has been a member of the staff o Hesketh, Richmond and Clayton for over thirt)y years, has beer admitted into partnership in the firm, which is being continue< under the firm name of Hesket,h and Richmond.

Mr. W. FZ. Scul!y, formerly of the staff of flodg-s and R&es Invercargill, has Joined the staff of Mr. A. A. Wilson, We&port

1

BILLS BEFORE PARLIAMENT. aming Amendment. .4mmdment Act 1908. Allowing totali- eator inoest,menl s to be telegraphed to Secretary of Racing c’luh ; removing restriction on publication of dividends ant1 removing prohibition against use of double totalizatoq.

<oral Authorities Empowering. (Relief of Unemployment Ex- tension).

uries Amendment. I’roviGng for n five-sixths majority in Wminal cases except Capital ; continuance may contmue notwithstanding jury may be reduced to ten, through de&h or illlless.

lummet Time. Provitling for advance of time during summer 1 permr.

inimals Protection and Game Amendment. Repeal of Section 3 Sub-se&ion 3 and Section 5 of Animals Protection and Game Act 1921-22.

‘udieial Proceedings (Regulation of Reports). Restriction on publication of indecent, medical, surgical, or physiological details of evidnsce ; restriction of publication of details in matrimonia~l suits.

ldvertisements Regulation. County Councils have power to make by-laws for regulation of advertisements.

2aptive Birds Shooting Prohibition. Tmposing penalties for liber- alilrg and shooting captive birds.

Divorce and Matrimonial Causes Amendment. Amending Sec- tion 24 D. and M.C. Act 1908 ; and Section 4 D. and M.C. Amendment Act 1920.

LOC’AL. Whahatane C.C. Empowering and Loan lonies Diversion.

RULES AND REGULATIONS. Regulations as hereinafter mentioned appeared in Gazette

No. 43, issued on the 23x1 June, 1927 :- Amcndmont to Samoa Immigration Consolidation Order 1924.

-Samoa Art 1921. Regulations governing appliances to bo used for Salmon and

Trout -fising.-- Fisheries Act 1908. Amended Regulations under t,he Sale of Food and Drugs Act

1908, regarding goit,re remedies. Notification by Comptroller of Customs regarding Prohibition

of Importation of Works Infringing Copyright.-Copy- 1,ight Act 1913; Customs Act 1913.

Regulations as hereinafter mentioned appeared in Gazette No. 44. pukblished on 30th June, 1927 :-

The Masseurs Registration Regulations Amendment No. I.- Masseurs Registration Act 1920.

The Kauri-Gum (Advances) Regulations 1927. Regulations for the Delivery of and Arlvances upon Kituri-Gum under the Kauri-Gum Control Act 1925.

Open Season for the taking or killing of Opossums on t,he East Coast Acclimatization District.-Animals Protection and Game Act 1921-12.

Regulations as hereinafter mentioned appeared in Gazette No. 45, published on 5th July, 1927 :-

1. Regulations under the Orchard and Garden Diseases Act 1908, in regard to the importation of Potatoes into New Zcalund.

In Gazette No. 46, published on 7th July, 1927 :- 1. General Regulations under tho National Provident Fund

Act 1926. 2. Anglo-Mexican Revolutionary Claims Convention. Per-

sons or Companies ha.ving claims against, the Mexican Government on account of losses mcdrred by British sllbjects in Alcsico on account of revolutionary acts wllich occurred between November, 1910, and May, 1920, Co communicalf: with IJnder-Secretary of State for Foreign Affairs in London.

In Gazette No. 48, published on 12th July, 1927 :- 1. Electrical Supply Regulations 1927-Public Works Act

1908, as amencled by Public Works Amendment Act 1911. 2. Electricnl Wiring Rrgulations 1927.-Public Works Act

1908, as amended by Public Works Amendment Act 19 11.

In Gazette No. 50, published on I4t,h July, 1927 :- 1. Customs (Tariff Preference on Tea) Regulations 1927.-

Customs Act 1913. 2. Regulations for the Auditing of Land Agents’ Trust Ac-

counts.-Land Agents Act, 1921-.X?. 3. Amended Regulations under the Nurses and Midwives

R’egistration Act 1925, regarding approval by Board of Health, of Hospitals for Limited-training purposes.

July 19, 1927

LEGAL LITERATURE.

136 RUTTERWORTII’S FORTNIGHTLY NOTES. -

NOTABLE BRITISH TRIALS SERIES-TRIAL OF MADELEINE SMITH.

(Butterworth & Co. (Aust.) Ltd.) I’lice 9,‘- net.

This work has been long out of print and the Second Edition has been edited by ?Iliss F. Tennyson Jesse, one of our leading playwrights, and a woman of great discernment and ability.

It is only right the study of such a complex character as Madeleine Smit’h should have the advantage of being dealt with by one of the most observant of her sex, and Miss Tennyson Jesse has presented the case in a forceful and exceedingly interesting manner.

Synchronising with the publication of the new edition we read that Madeleine Smith has apparently fallen on evil days, and at the age of 90 has been served with a notice t’o leave the United Stat’es within one month, on the plea t#hat there is a danger of her becoming a charge on t’he public funds.

The head-notes of the New York papers are typically American. Thus we read : ‘. Martyred on Brink of the Grave.” “ Central Figure in Poison Drama.” “ Driving Woman of 90 Into Exile.” These newspaper headings give an added interest to the case of Madeleine Smith, as this unusual woman has practically been lost sight of for some time beyond the general knowledge that she was living in the United States.

To come more particularly to the t’rial and the New Edition. It will be remembered that in 1837 Madeleine Smith was arraigned for the murder of her lover, L,Angelier, by the administration of arsenic poison. The Scottish verdict of “ Not Proven ” was brought in and she was discharged.

At 21 years of age this handsome, bright, defiant beauty had experienced all the emotional fires she was capable of, and had stood her trial for the murder of her lover, and at this young age, after having passed across the stage of vivid publicity with exceeding calm, drifted into the obscurity of the unknown.

To recall the story : Madeleine, the daughter of a well-to-do Glasgow Burgess, conceived an attachment for L’Angelier, a clerk earning 16/- a week. The youth was apparently enamoured of Madeleine when he first saw her, and managed to contrive an introduction through a mutual friend. Au acquaintance was estab- lished which ripened into the fierce heat of mutual passion. In an amazing manner the amorous Madeleine poured her whole exceptional emotions into the episode, writing a series of extraordinary letters to L’Angelier. In less than a year from their original meeting >Iadeleine had become definitely established as L’Angelier’s mis- tress. In less than 18 months she had tired of her entanglement with him and had accepted a desirable offer of marriage with a Mr. Minnoch, a friend of the family. She then endeavoured to break off her secret engagement with L’Angelier. He refused, threatening to send Madeleine’s letters to her parents. In this manner he blackmailed Madeleine into continuing their relationship. This occurred between April, 1855, and February, 1857. In that mont’h L.Angelier was mysteriously attacked with illness, and on the 19th and 22nd February he had two severe attacks. On the 23rd March he died, and t,he post mortem examination revealed that he died of arsenical poisoning. On the 31st March, Madeleine was arrested, and her trial com- menced on the 30th June.

It is not too much to say that all Grea’t Britain was agitated over the trial which lasted nine days. There were three distinct points of view held by t’hree different schools of thought. Those who believed Madeleine was innocent and L’Angelier had commit’ted suicide ; those who were convinced murder had been committed and t’hat she should hang ; and t’here was a third school, in which most students of t’he case have found themselves ever since, who thought probably Madeleine did it- but anyhow L’Angelier had deserved it.

Whatever view of Madeleine may be taken she was to a large extent a straightforward person whom one would hesitate very much to condemn for the natural volatile forces incorporated in her character which made her more or less a creature of circumstances. The riddle in the case is more bound up in the queer, scheming, evil little personage L’Angelier. As has so often been revealed in criminal history these self- opiniated, conceited lady-killers when brought into the searching light of the open are very poor creatures indeed, and one feels almost forced to confess Ohat they must possess some subtle chemistry in their nature which is only discernable to the fair sex.

Consider -Joseph Smith with his weak, leering face Abraham Thornton degenerate, beetle-browed and coarse. Charles Peace, the limping, half-formed horror of last century, a,nd many others. Each in his way a powerful swayer of the feminine heart.

The introduction to the second edition of the Trial of Madeleine Smith has been written with a courage and distinction, one would almost say daring, character- istic of this distinguished authoress. Without question the finest review of this extraordinary case which has ever been penned. Believing as she does in complete- ness, she has insisted upon the whole of the unexpurgated letters of Madeleine Smith being published in the work. These form an unusually interesting collection.

NELSON LAW SOCIETY.

The annual dinner of the Nelson Law Society was held on the evening of Friday, the 17th ultimo., during the Supreme Court sessions.

Mr. C. Richmond Fell, President of the Society, presided, and amongst the guests was the Honourable Mr. Justice MacGregor, who was on circuit.

His Honour, in responding to the toast of “ His Majesty’s Judges,” gave some very interesting remin- iscences of his early days in the profession, and concluded by giving some useful advice to t’he junior members of the Bar present as to what constit’utes success in ad- vocacy.

A very enjoyable evening was spent, during the course of which a telegram conveying best wishes to the Nelson Bar was received from His Honour Mr. Justice Alpers.

Profess& James Adamson, Victoria University College, who is a member of the Scott:sh Bar, was admitted on June 24th, as a barrister of the Supreme Court of New Zealand by His Honour the Chief ,Justice Sir Charles Skerrett, upon the motion of Mr. A. Gray, K.C. His Honour expressed the great pleasure which he had in making the order of admission, and said the Bar was to be congratulated upon the addition t,o its ranks of a gentleman with such qualifications as were shown to be possessed by Professor Adamson in the testimonials yhich were lodged with his application.