New Zealand Law Journal. New...

August 16, 1932 New Zealand Law Journal.

New Zealand

“ The doctrine of contributory negligence does not make for clarity. I think the jury would take it sufficiently into account in answering the simple question : ‘ Was it the negligence of the defenda.nt that caused the accident ? ’ ”

-LORD BUCKMASTER during a recent debate in the House of Lords.

Vol. VIII. Tuesday, August 16, 1932 No. 14

In Wig and Gown. An esteemed senior member of the profession has

asked us to indicate the origin of the barrister’s wig and gown. We confess that the answer was not available off-hand ; and we were surprised that a number of prominenttmembers of the Bar could neither enlighten us nor supply any indication of the source of the professional costume of their order.

The ever-useful Ha,Zsbury, 2nd (Hailsham) Edition, Vol. 4, p. 512, tells US that Counsel cannot as a general rule be heard in Court unless they are robed. Apart from appearances before certain well-known tribunals, from the House of Lords to courts-martial, the general principle is that robes must be worn before any tribunal that is robed. The latest rule in the matter, as promul- gated by the English Judges on March 28, 1922, deals with the obligation imposed on women barristers to wear the wig and gown, and they are expected to conform to certain standards of dress when so robed.

We think that’ it is generally accepted that the gown and bands, or rabat, are survivals of the time when the practice of advocacy, especially in the canonical courls, was confined to ecclesiastics. This, however, does not appear to have any foundation in fact. We know that it was in the reign of Edward I that a distinct legal profession came to be formed in the ranks of the laity. A hundred years later the members of that ever- conservative profession retained the ordinary civilian costume of the early fourteenth century, with some slight variations. This is a.pparent from memorial brasses of that time. Some of these which survive are commemorative of men who are described as in lege periti or as apprentici ad legem. We thus learn that, towards tlie end of the fourteenth century, a high cap, or coif, appears to have been worn by such men : the coif being, as Fortescue tells us, “ the chief insignment and habit wherewith sergeants-at-law are decked.”

Sergeants-at-law are mentioned in the Statute of Westminster I, in the reign of Edward I, and again in a statute, 5 Henry V, c. 10. They were the advocates and pleaders of the period. The term “ barrister-at- law ” does not appear in use until late in the sixteenth century. Consequently, references to the forensic costume of the Middle Ages are confined to mention of the sergeants-at-law, the senior members of the profession who were called from the Inns of Court to become members of their special Guild, and from whose ranks the Judiciary was recruited. As Fortescue, who took part in the Wars of the Roses, has it : the profession consisted of “ your judges and men of law, which in the Realme of England are called Sergeants

at law, and other professors of the law commonly called Apprentices.” In fact, as Broke says, the name of sergeant is a ” nosme de dignite comme chevalier.” We find a description of the king’s courts in Piers Plowman (c. 1395) : Langland, describing the barristers there to be seen in their coifs and gowns, says :

” Seriauntes they semede that serven at barre To plede for peneyes and poun.des the law.”

The barrister wore his distinctive costume at all times. Chaucer describes one riding as a pilgrim to the shrine of St. Thomas a Becket : “ He was but homely, in a medlee coat Girt with a ceint of silk with barres small.”

Of the early fifteenth-century robes of members of the Bar, we have several records : such as the brass of Thomas Rolfe to be seen at Gosfield, Essex, whereon he is depicted as wearing a gown, tabard, tippet, hood, and coif, with two bands appearing below the hood ; the inscription shows him to have been “ Legis professus.” This appears also as counsels’ costume in an early fifteenth-century illustrated edition of The Canterbury ? ales. The coif, then as later, was distinctive of the sergeant-at-law : “ neither the justice nor yet the sergeant shall ever put off the coif, nor be without it even in the king’s presence, though he be in talk with his Majesty’s Highness.” The sergeants, the “ Brethren of the Coif,” continued to be appointed until the abolition of their distinction in 1871, the last survivor being Lord Lindley.

In his Be Laudibus Legum An&p, from whidh we have already quoted, Fortescue, who was Chief Justice in the reign of Henry VI, and was a distinguished sergeant before his elevation to the Bench, thus describes the official costume of the day : “ He was clothed in a long robe after the fashion of a priest, with a furred cape about his shoulders and above it a hood with two bands such as are used by doctors of laws in some universities, with the coif as described.” He continues by saying that when the barrister is made a Justice, he retains the same costume but with the substitution of a cloak, instead of a hood. This professional attire seems to have continued until the seventeenth century, when, to quote Dugdale’s Origines Juridicales : “ The robes they now use somewhat resemble those of the justices of either bench, and are of three distinct colours, viz., murrey, black furred with white, and scarlet, . . . whereunto they have a hood suitable, as also a coif of white silk or linen.” Here, it may be remarked that, until their abolition, sergeants wore purple robes at their creattion, and on ordinary occasions a black cloth gown ; the judges wore robes of many colours.

In the thirty-second year of Henry VIII’s reign, an order was made in the Inner Temple that its members should reform themselves in their apparel, and not wear long beards ; and that the treasurer should confer with the other treasurers of the Inns of Court for a settltment of the uniform, and to know the Judges’ opinion in the matter. That the Bar have somewhat distinguished t’hemselves sartorially in the past, is seen from an order made in Lincoln’s Inn nine years earlier. This forbade anyone to wear within the precincts any :ut or pansied hose or breeches or a pansied doublet, 3n pain of expulsion ; any person wearing a beard wa,s similarly to be dealt with. The old statute had become & dead-letter apparently by the time of Queen Mary I, because, in the fourth year of her reign, another order was made by the Inner Temple that no Fellow of that house should wear his beard above three weeks’ growth 3n penalty, of forfeiting twenty shillinga. In the I

206 New Zealand Law Journal. August 16, 1932

succeeding year, the Middle Temple decreed that none of its society should wear “ great breeches in their hose, made after the Dutch, Spanish or Almain fashion, or lawn upon their caps, or cut doublets,” on pain of forfeiting 3s. 4d. ; for the second offence, expulsion was the penalty.

Among the State Papers, there is a “ Discourse on what robes and apparel the judges are to wear, and how the sergeants-at-law are to wear their robes, and when ” ; and “ a solemn decree and rule was made in this regard by all the judges sitting at Westminster ” on July 4, 1625. The resulting costume, similar to our own except for the coifs, is illustrated in Hollar’s engraving of the coronation procession of Charles I.

weighed heavily upon the common people, the wearing of wigs went out of use, except by the professional classes of whom it was retained as an official badge. Gradually, the medical profession, the military, and the clergy gave it up. Greville remarks on the odd appear- ance of the cropped polls of the clergy at the coronation banquet of William IV, but the Archbishop of Canter- bury wore a wig as a mark of his archiepisopal dignity as late as the crowning of Queen Victoria ; since then its wearing has gone out of favour with the higher clergy.

Chief Justice Pollock is authority for the jesting statement that “ the Bar went into mourning at the death of Queen Anne, and never came out again.” The basis of this remark was the fact that the full- bottomed wig and black gown and Court dress which is still the official costume of King’s Counsel, dates from the expression of a wish by William III that the mourning apparel worn by barristers at the funeral of Queen Mary II should be continued after the Queen’s death as a mark of respect. Long before the seventeenth century, however, the students of the Inns of Court wore a stuff gown as a distinctive costume ; since the reign of William III the black stuff gown has become of general use by all barristers.

The legal profession alone retains the wig as a mark of the judicial and forensic orders : inconvenience in its wearing had previously caused the coif to be dis- carded when the wig came into favour. However, a round patch of white stuff to represent it was intro- duced into the perrukes of certain of the judges and of the sergeants-at-law. Apart from the judge’s “ black cap,” the last vestige of the coif is to be seen in the circular depression on the crowns of the judicial wigs of to-day. The gown, however, has survived the centuries. Perhaps the profession has in the inter- vening years kept in mind Edmund Spenser’s remark : “ The person that is gowned, is by the gown put in mind of gravitie.” If so, may our professional brethren at the Bar take to themselves Dryden’s compliment that when so attired they practise “ virtues proper only to the Gown.”

Mention of the lawyer’s gown appears often in our literature ; in fact, at an early date the very robe of the barrister became a synonym for his profession. Our readers will remember innumerable examples : for instance, in King Lear, Shakespeare refers to “ the robed man of Justice.” Milton, borrowing his metaphor from the colours of the gowns worn at t’he Bar and on the Bench in his time, refers in L’ Allegro to the sun which “ begins his state, rob’d in flames and Amber light.” Speaking in 1647 of Sir Thomas Coventry, Clarendon in his History of the Great Rebellion refers to him as “ a son of the Robe, his father having been a judge in the Court of Common Pleas.” In 1671, we are told in the Buccleuch MSS. that a Mr. Commartin is “ a man of the robe ; but in very good esteem with everybody.” In 1673, Kirkman mentions that “instead of the Gownsmen pleading at the Bar, they found Swordmen fighting at the Barriers ” : the old distinction of the long robe and the short robe. Thackeray was called to the Bar by the Middle Temple in May, 1848 : it was he who characterised the study of the law as “ one of the most cold-blooded prejudiced pieces of invention that ever a man was slave to.” In Pendennis, written two years after his call, he remarked that “ cadets of many of our good families follow the robe as a profession.” And Dickens, in Sketches by Boz has a word for Mr. Harris, the law- stationer, and Mr. Jennings the robe-maker.

The Irish Oath Question.

At a meeting of the Haldane Club held in London on May 23, an interesting discussion took place on the resolution proposed by Mr. N. H. Moller : “ That it is incumbent upon the present Government to submit the dispute with the Irish Free State to the Permanent’ Court of International Justice at The Hague for decision.”

In Mr. Moller’s view there is a valid treaty existing between Great Britain and Ireland, and the problem can be approached in two ways : first, “ Is it practic- able to submit the dispute to the Permanent Court Z ” and secondly, “ Is it acceptable ? ” Both Great Britain and Ireland have signed the optional clause, a breach of the treaty by the Irish Free State would be a breach of an international obligation, and the int’erpretation of a treaty is a fit subject for the Permanent Court.

The course suggested is therefore not impracticable,

And the International Court.

In the reign of Charles II, the wearing of the perruke or periwig became general. In Bishop Burnet’s “ life ” of Sir Mathew Hale, we are told that formerly advocates not entitled to the coif appeared in Court in their natural long hair. The famous Chief Justice on more than one occasion expressed his displeasure at the introduction of the wig to his Court. The best wigs cost usually a hundred guineas, though we remember that Mr. Pepys, with his usual economy, purchased a cheap one for ~3. Their shape and form differed : “ the huge tie perruke for the man of law,” since each class of men was distinguished by the cut of his wig. When, in the reign of George II, the effect of this differentiation

though there may have to be a preliminary case to decide whether the Permanent Court has jurisdiction.

As to the acceptability, so far as can be ascertained in London the Irish Free State wants to make the’ treaty subordinate to its Constitution and to establish its right to alter its own Constitution at will. That the British Empire is an association of free nations is already an accepted axiom in other spheres. The Dominions have separate representation at the League of Nations and some of them have separate representation in other places. It would be a generous recognition of the free status of the Dominions to offer to submit the Irish” dispute to a tribunal outside the Empire.

August lf3, 1932 New Zealand Law Journal. 207

Blair, J.

Supreme Court. November 19, 1931 ; May 27, 1932.

Palmerston North.

HASTINGS v. HASTINGS.

Divorce-Practice-N.&W. Decree for Separation “ without Admissions “-No Evidence Tendered and Decree made by Consent-Whether Allegations in Petition therein now Res Judk&z--Jurisdiction and former Practice of New South Wales Court considered-EPPect in New Zealand-Matrimonial Causes Act, 1899 (N.&W.), Ss. 31-35.

Husband’s petition for divorce founded on allegation that present parties had been parties to a Decree of Separation made by the Supreme Court of New South Wales on March 30, 1915, and that such separation had been in force for not less than three years. That fact was not in dispute. The petitioner had been domiciled in New Zealand since about the year 1917. The defence was that the separation had been due to the wrongful act or conduct of the petitioner. His Honour held, after re- viewing the evidence of the wife taken on commission in Sydney and also that given at the hearing, that the final separation was due to the complaint of the petitioner to his wife that, at the time of the marriage, the petitioner had been deceived by the wife’s representation that she was then nineteen years of age when in fact she was then twenty-seven years of age. His Honour also held that the respondent’s allegation that the separation had been brought about by the cruelty of the petitioner had not been established. The judgment is reported on the practice point as the effect of New South Wales law on the terms of settlement “without admissions ” and as to a decree of judicial separation by consent of the parties.

Held : Assuming New South Wales Court had no jurisdiction to make a decree without admissions as to the truth of the allegations in the petition there, the decree, being made without jurisdiction, would be bad. As between the parties, there would still be ground for dissolution in that they would have separated by their own agreement, and it is the separation itself, and not the formal Court order, that is to be enquired into.

S. Mason for petitioner.

Goldstine and J. N. Wilson for respondent.

BLAIR, J., said that the petitioner based his claim for a divorce on a decree for judicial separation, which decree had been made by consent in the second petition, in which adultery and cruelty was alleged against him. An authenticated copy of the first petition was produced, as also were authenticated copies of the documents on the file in the second petition upon which a decree for judicial separation was made. Except in one respect these papers were complete. They comprised the petition and verifying affidavit by the wife, the husband’s answer denying the wife’s allegations, a memo. by the Registrar setting out the issues in dispute, a notice of motion on behalf of the wife for a decree of judicial separation on the grounds appearing in the affidavit of one Rowley and “ the terms of settlement referred to therein.” Rowley’s affidavit stated that the written terms of settlement then produced and shown to him and marked as an affidavit had been duly signed by the respective solicitors for the parties. This document was not now on the Court file, and being an original document and produced only to the deponent, would be no doubt taken out of Court by whomsoever lodged it, in this instance, the wife’s solicitor. The remaining document on the file was the formal decree dated March 30, 1915. It stated the cause as coming on by way of motion for a decree, and upon reading the petition and the affidavit of the petitioner, and also upon reading the motion paper, and Rowley’s affidavit exhibiting terms of settlement “ This Court both by consent order and decree,” etc. and then follows the formal decree for separation, custody, access and permanent alimony.

When the evidence was taken on commission in Sydney there was produced for the husband a document purporting to be a copy of the terms of settlement referred to in Row!ey’s affidavit. Counsel for the wife objected to its admission (Page 1

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<

f 8

)f Commission). As will later be seen the objection to the ad- nission of the document that it contains a clause that the decree ‘or judicial separation was to be “without admissions by con- tent.” Mrs. Hastings was cross-examined as to the terms of settlement. She said she never asked what the terms of settle- nent were, and said she thought her solicitors would have been clever enough to have had it with admissions. She was shown the document and it was read to her clause by clause. She remembered the heading; she had a faint recollection that %X45 was to be paid, she did not remember the “without zdnzissions ” portion referring to the decree of separation, nor did she remember a clause about costs ; she did remember the clause about the husband having access to the children once a week, and the clause providing for alimony at g4 per week and the provisions as to neither party askmg for any alteration in the amount of alimony for four years. She had no recollection as to the details of instalments of certain payments to be made by the husband. Mrs. Hastings suggested that if her solicitor had signed the terms of settlement he must have done so without her authority. Apparently, however, the only one of the terms she complained of is that providing that the decree was to be made without admissions. She admits also that she did not go to the Court when the decree was made, and says also that she never had a copy of the terms of settlement. She does not, and indeed cannot, go to the length of saying that the “ without admissions ” clause was not in the. terms of settlement signed by her solicitor. The husband on the other hand swears positively that this stipulation was made in the terms of the settlement. His Honour preferred his positive statement rather than accept as the best evidence of the terms of the settlement the negative attitude adopted by Mrs. Hastings.

His Honour went on to say that when the case was heard at Palmerston North he did not then appreciate that the precise wording of the terms of settlement would be of importance as affecting the result of the case. The reason was that certain legal submissions were made by Mr. Goldstine and on the submissions the precise details of the signed agreement between the parties might well have been immaterial. It was not. until after His Honour had looked into these submissions and had ascertained the practice of the New South Wales Divorce Court as to consent in decree for judicial separation, that he considerel it important to obtain if possible the document itself, or at least a true copy of it. Accordingly, therefore, he made a request through the Registrar that the document be obtained. At that time he had not seen the document which although marked for identification purposes by the Commissioner in Sydney was not put in as an exhibit owing to objections by the wife’s counsel. He indicated that, if necessary, he would be prepared to allow the terms of the settlement to be proved on affidavit. Objection was made to this by the wife’s solicitor, and His Honour was entitled to interpret this objection as indicating that Mr. Goldstine did not consider that the terms of settlement when definitely proved would help his case. His Honour had, on the one hand the husband’s positive evidence that the settlement was without admissions, and no positive evidence to the contrary, but he was desirous for his own satisfaction of seeing the document itself. As the, result of his request for further evidence on the point, two further affidavits had been filed. One of these affidavits, filed on behalf of the petitioner, is made by Mr. H. G. R Mason, Solicitor, of Auckland, whose firm now acts as solicitors for the petitioner. Exhibited to his affidavit is the document marked for identification by the Commissioner. It purports to be a copy of the original agreement referred to in Rowley’s affidavit. Mr. Mason deposes to the fact that in the year 1921 the petitioner instituted divorce proceedings, his then solicitors being Raymond Raymond and Campbell, of Timaru. Mr. Mason obtained from that firm their file before instituting the present proceedings. On that file was a letter from Messrs. Raymond’s Sydney agents, who on October 13, 1921 had sent to Raymond’s this very document, with an explanation that the copy had been obtained from Coghlan and Company who acted for the wife in the judicial separation proceedings and who had signed the terms of settlement on her behalf. The Sydney agents explain also that Mr. McBride, who was then solicitor, had been then dead for many years.

Mr. Mason, in April, 1931, wrote to the firm who had been Raymonds’ agents forwarding them the document which he had. found on Raymonds’ file, asking them to confirm whether it was the same document they had obtained in the year 1921. This they did.

Another affidavit filed by the wife’s solicitors is made by. Mr. John Nigel Wilson, a solicitor on the staff of Mr. Goldstine’s firm. He states that on March 19, 1931, he had requested the Sydney Solicitors for the Resppndent to make certain enquiries.

New Zealand Law Journal. August 16, 1932

They interviewed Mr. Rowley the deponent of the original affidavit, who informed them that after the death of the sur viving partner of the firm of Coghlan and Company of Sydney, their papers were taken over by one Manning, who was struck off the roll some months previously. They also discovered that some five years previously Manning had sent a lot of papers in obsolete matters to be burnt at the destructor, including the papers in Hastings ~1. Hastings. Nor had the Registrar been able to find a copy on his records.

That evidence rendered it morally certain that the document produced is a true copy of the original. Coghlans had produced it in the year 1921, in the ordinary course of business, and they were now all dead. The document confirms the petitioner’s evidence. But even if the document was to be treated as in- admissible, there was the uncontradicted evidence of the petitioner as to the fact that the decree was consented to “ without admissions,” and there is nothing to throw doubt on the truth of this statement.

If the decree had been made on admissions of the truth of the allegations in tho wife’s petitions, then the question as to whose fault it was that the separation had taken place would have been res judicata, and the wife’s defence to this petition would have succeeded. But as it was proved that the settlement was without admissions the matter still remained for decision on the facts, and His Honour had found as a fact that the separation was not brought about by the wrongful acts or conduct of the petitioner.

It was submitted by Mr. Goldstine as a matter of law that the Sydney Divorce Court had no jurisdiction to make a decree for judicial separation except upon proof either of adultery, cruelty or desertion for two years. (Matrimonial Causes Act 1899 (N.S.W.) Ss. 31-35). Stress was laid on the fact that by s. 34 of that Act it was provided that the Court was to make the order upon being satisfied of -the truth of the allegations. The importance to the respondent of this submission is that if it prevails the defence of T~S judicata would apply. The ease of Aldridge v. Aldridge, 42 N.S.W. Weekly Notes 79 was relied on. The report of that case is not available in New Zealand, and the reference used was that contained in the Neuj South Wales Digest, 194125, at p. 292. The case deals with the evidence necessary to confer jurisdiction to decree judicial separation. The note in the Digest says “ Quaere howev:r whether in such suit the Court has jurisdiction t,o make a decree by consent without the Court either having before it evidence to prove the charge made or admissions made by the party who is charged with the offence.” That decision was given at some date subsequent to the year 1921, and His Honour said he had ascertained from the Judge of the Supreme Court of New South Wales who presides in the Divorce Division (Mr. Justice Owen) that the practice in Sydney, prior to his elevation to the Bench, was to make decrees of Judicial Separation by consent, and without admissions. This is confirmed by reference to the third edition of Mackenzie on Divorce Practice (N.S.W.), which was published in 1919, where it is said, page 98 : “ It was at one time the practice in New South Wales to make decrees for judicial separation by consent. It was thought that such decrees could be made before the issues were settled, and without a formal finding of the issues in favour of the petitioner. See Jones v. Jones (1 W.N. 88) ; Elsner v. Elsner (Sydney Morning Herald, 10th May, 1893). This practice was, subsequently

to these oases, frequently adopted ; it is not, however, now the practice in this State, although decrees for judicial separation are made by consent to make such decrees ‘ without admissions,’ but the Court grants decrees by consent ‘ without any statement as to admissions.’ ”

It was specifically agreed between the parties in this case that the decree was to be without admissions, Assuming that the New South Wales Court had no jurisdiction to make a decree without admissions as to the truth of the allegations in the petition, and assuming it would be open now to impeach the Court’s jurisdiction, then the decree, being made without jurisdiction, would be bad, and the position as between the parties would be that they have been separated by their own agreement, which in New Zealand is a ground for dissolution.

In Aynsley v. Aynsley [1931] G.L.R. 501 the majority of the Court of Appeal took the view that it was the separation itself and not the formal Court order, which the Court enquires into.

Decree for dissolution. As the wife resides out of New Zea- land, and has actively opposed the petition, petitioner to move for a decree absolute after the expiration of three months, on notice to the wife’s solicitors in New Zealand.

Solicitors for petitioner, Mason and Mason, Auckland. Solicitors for.respondent : Goldstine and O’Donnell, Auckland.

Ostler, J. April 27, May 18, 1932. Nelson.

R. T. TURNBULL & CO. LTD. v. MACKAY AND MCDONALD

Partnership-Representation as to Credit of His Firm by Partner- False and Fraudulent to Knowledge of Both Partners-Whether Claim for Consequent Damage disclosed any Action other than One Arising Out of Representations within Ambit of S. 0 of Lord Tenterden’s Act-Canon of Interpretation of Codifying Act discussed-Partnership Act, 1908, ss. 8-21-Statute of Frauds Amendment Act, 1928 (9 Geo. IV. c. 14) (Imperial), S. 6.

Questions of law by consent otdered to be argued before trial. When the Court sat to hear this argument the position had altered. An admission of the whole of plaintiff company’s claim had been made by McDonald, one of the defendants, while Mackay, the other defendant, had filed an amended statement of defence, in which (inter alia) he pleaded section 6 of the Statute of Frauds Amendment Act 1828 (9 Geo. IV c. 14), sometimes referred to as Lord Tenterden’s Act, and the real question of law which counsel for plaintiff company and counsel for defendant MacKay combined in asking the Court to determine was whether that section applied. That was the only question argued.

Plaintiff is a company incorporated and carrying on business in England. Defendants were formerly carrying on business in New Zealand as wool and skin buyers in co-partnership under the firm name of W. H. MacKay & Company. In 1927, this firm was desirous of purchasing in New Zealand and shipping for sale in England wool and skins, and it entered into negotia- tions with plaintiff company, as the result of which plaintiff company established in favour of the firm a letter of credit for glO,OOO, and an arrangement was made to the effect that the firm could draw against this fund to the extent of 85 per cent. of the value of all such produce shipped to the plaintiff company for sale. Plaintiff company was to remit to the firm the nett surplus. proceeds of the realisation of this produce after de- ducting the amount already drawn and all charges, and in the event of the realisation of any shipment resulting in a loss plaintiff company was to draw on the firm for the amount of such loss, and defendants were to honour such drafts. In order to induce plaintiff company to enter into this arrangement, McDonald who was then in London orally represented’to plaintiff company that the capital of his firm was at least $12,500, and plaintiff company was induced by this representation to enter into the arrangement.

On October 12, 1928, defendants sent a cable to plaintiff company in the following words : “ Owing to health reasons only our Mr. Mackay is retiring from partnership and has arranged to sell his interest in the business to Mr. McDonald as from the 15th October. Mr. Mackay is leaving his capital invested in the business. The business will be continued by solely Mr. Macdonald under our present title. Kindly instruct Bank of New Zealand negotiate draft on you under your letter of credit. W. H. Mackay & Co.”

Held : Provisions of Partnership Act are but declaratory,of the law as it stood prior to passing of that Statute, and the enactment of ss. 8, 12, and 13 of the Partnership Act did not impliedly repeal s. 6 of Lord Tenterden’s Act in so far as it related to false representations by partners. The maxim generalia speciaZibus non derogant applies. Consequently, non- compliance with the last-named section having been pleaded by MacKay is a good defence to the cause of action founded on fraudulent misrepresentations as to the credit of the firm except in so far as those representations are in writing signed by MacKay.

Fell fqr plaintiff company. Glasgow and Harley for defendant Mackay.

OSTLER, J., said that it was to be assumed for the purposes of this case that McDonald’s oral representation was false and fraudulent and the representation that Mackay was leaving his capital in the firm also was assumed for the purpose of this case, to have been false and fraudulent to the knowledge of both defendants and it induced plaintiff not to close the account but to conCinue to do business with Macdonald and to extend credit to him. The result of this continuance was a loss to plaintiff company which on December 1, 1930, amounted to g5,960 11s. 3d. Plaintiff company claimed that amount from both defendants as damages for fraud. There were alternative claims to which it was unnecessary to refer. The point of law to be decided referred solely to the claim for damage?. for fraudulent misrepresentation. It was to be assumed for the purpose


of this case that, although Mackay knew of the cable being sent, it was written and signed in the firm’s name by McDonald.

On those facts, the question of law for determination was whether that claim disclosed any cause of action other than one arising out of representations within the ambit of s. 6 of Lord Tenterden’s Act.

It was decided in 1839, nearly 100 years ago, in the case of Devaux V. Steinkiller, 6 Bing. N.C. 84, that a representation made by one partner as to the credit of his firm consisting of more than one partner was a representation as to the credit “ of any other person ” within the meaning of s. 6. In that case, at p. 89, Tyndall, C.J., says : “ It appears by the declaration that the representation here was made by the defendant alone ; that he was in partnership with two others ; and that the representation was that the firm was trustworthy ; not that he alone was, but that he and others were. If the repro- sentation had been confined to the two others, there can be no doubt it would have been within the statute ; and it is not the less a representation of the solvency of the two because he adds himself .” Whatever may be said against the logic of this reasoning, that decision, so far as His Honour could ascertain, had never been questioned since, and it is treated as still good law in all the text-books, .notwithstanding the subsequent enactment of the Partnership Act, 1890, from which our Partnership Act, 1908, is copied. It was further decided in Williams v. Mason, 28 L.T. 232, that the signature of an authorised agent such as a partner was not a sufficient signature within the meaning of s. 6 whereon to charge a party making a false representation. In other words, a firm was not liable for such a representation made by one of its partners, even though the other partners knew and approved of it. The only person who could be charged was the partner who actually signed the representation. That decision also had never been questioned, but had been followed and its principle had been applied to false representations under the section purporting to be made on behalf if a company : see Pearson v. Seligman, 48 L.T. 842 ; Swift v. Jewsbury and Goddard, L.R. 9 Q.B. 301 ; Hirst v. West Riding Union Banking Company [1901] 2 K.B. 560.

In the preface to Pollock on Partnership, 12th ed., p. ix, Sir Frederick Pollock, who drew the bill, says : “ It will be observed that the Partnership Act does not purport to abrogate the case-law on the subject, but on the contrary declares that ‘ the rules of equity and common law applicable to partnership shall continue in force except so far as they are inconsistent with the express provisions of this Act.’ ” In Lindley on Partnership, 9th ed., p. 5, it is said : “ The second part of the Act, headed ‘ Relations of Partners to Persons dealing with them,’ sections 6-18, contains nothing new.” In our Act of 1908 the sections under this heading are ss. 8 to 21. They are in t,he same words as ss. 5 to 18 of the English Act. It is plain from these passages that it had not been intended to alter the previously existing law by the enactment of ss. 8 to 21. By s. 8 every partner is made an agent of the firm for the purpose of the business of the partnership, and the acts of, any partner in the course and within the scope of the firm’s busmess bind the firm. By s. 12 every partner is liable jointly for,all obligations of the firm incurred while he was a partner. By s. 13 it is provided that where by the wrongful act of any partner acting in the ordinary course of the business of the firm loss or injury is caused to any outside person, the firm is liable therefor to the same extent as the partner so acting. That was the law before the enactment of the Partnership Act. These provisions are but declaratory of the law as it stood previously. But there were exceptions grafted on to the liability of a firm for the wrongful act of one of the partners by 8. 6 of Lord Tenterden’s Act and the cases decided under it. It must be remembered that that enactment was not one of substantive but of adjective law. It dealt with evidence only. It enacted that with regard to one class of wrongful act by any person (including a partner as the Courts subsequently held) viz. fraudulent misrepresentations as to credit, etc., of a third party, the Court should not accept any evidence against that person of such wrongful act unless the representation was evidenced by writing signed by him. Non-compliance with the provisions of the section is a defence which must be pleaded, otherwise it is ignored by the Court. Therefore, in His Honour’s opinion, the enactment of ss. 8, 12, and 13 of the Partnership Act did not have the effect of impliedly repealing 8. 6 of Lord Tenterden’s Act in so far as it related to false representations by a partner. The substantive law of these sections of the Partnership Act and the adjective law of this section can stand together and are not necessarily inconsistent. It had been laid down that the proper way in which to interpret a codifying statute such as the Sale of Goods Act, the Bills of Exchange Act, or the Partnership Act, is in the first place “ to examine the language of the statute and to ask what is its natural meaning, unmfluenced by any

considerations derived from the previous state of the law, and not to start with enquiring how the law previously stood, and then, assuming t,hat it was probably intended to leave it un- altered, to see if the words of the enactment will bear an interpretation in accordance with this view ” : per Lord Hemchell in Bank of England v. Vagliano Brothers jlS91; A.C., at p. 144. His Honour respectfully agreed that if this method was not adopted, the very object of codifying the law would be frus- trated. But the sections of the Partnership Act referred to disclosed no intention in t,he words used of altering the previous law, or of repealing s. 6 of Lord Tenterden’s Act in so far as it applied to partners, and, for the reasons given, in His Honour’s opinion full effect must be given to the words used without holding that they effect an implied repeal. The maxim generalia specialibus non derogant applies. In Lindley on Partnership, 9th ed., p. 199 and 215, the same view is taken by the learned author. Moreover it had been decided in Keen v. Mear [1920] 2 Ch. 574, that the section corresponding to ours. 8 of the Partner- ship Act did not override s. 4 of the Statute of Frauds. Then, equally, ss. 8, 12, and 13 do not override s. 6 of the Statute of Frauds Amendment Act 1828.

For the reasons given, non-compliance with s. 6 of Lord Tenterden’s Act having been pleaded by defendant McKay, was a good defence to the cause of action founded on fraudulent misrepresentations as to the credit of the firm except in so far as those representations are m writing signed by McKay himself.

Solicitors for plaintiff : Fell and Harley, Nelson. Solicitors for defendant Mackay : Harley and Moynagh, Nelson.

Blair J. June 16, 17, 1932. Wellington.

1% me HUNTER (SIR GEORGE) DECD. : HUNTER v. PUBLIC TRUSTEE AND OTHERS.

--- Family Protection-Maintenance-Estate of Considerable Value

Not Income-producing-Widow and Daughter’s Applications for Advances of Income by way of Payments from Capital- Considerations Moving the Court-Present World-conditions Referred to-Family Protection Act, 1908, s. 33-Trustee Act, 1908, s. 93.

Applications by widow and daughter of the late Sir George Hunter for maintenance by way of advances from capital of Estate, which, t*hough valued at date of death (August, 1930) at $200,000, has produced no income thus leaving penniless the widow, who is entitled to whole net income. The effect of the prevailing conditions causing the loss of income and the testator’s lack of knowledge of same, are considered in the j udgment .

Held : Refusing order for daughter’s permanent maintenance, the Court could not mako an order as she was not entitled to any share of capital. The order made for payment of annual sum out of capital is sot out in tho judgment and the considerations moving the Court in relation thercto are explained.

Watson and Hay for Edith May Hunter. Gray, K.C., and Cornish for Marshall, Gooseman, Scott and

Sutherland, also for Percy Hunter. Perry for Elizabeth Hunter and Munro. Sir K. Douglas for M. K. M. Hunter and I. F. Hunter. Evans Scott for H. M. M. Hunter.

BLAIR, J., said, in regard to the motion by daughter for Order for Permanent Maintenance, that quite outside purely legal considerations there were practical considerations which made it impossible for him to make the order asked for in this petition. By the will the whole income went to Lady Hunter, and she was entitled to the whole income for life, or until remarriage, when there was a fixed income. The daughter was not entitled to any share of capital. All she was entitled to was the income after her mother’s death or remarriage. If therefore, he were now to make an order for a present payment of income to the daughter, such an order, if complied with, would be at the expense of the widow. The trouble which the proposed order sought to meet is that at present the estate, though a very large one, is earning no income. An order in favour of the daughter for payment of a share of income could not conjure up income which was non-existent. It could not be suggested that under s. 93 of the Trustee Act, 1908, he could make an order for a present payment to the daughter by way of advance on her expectant share of capital, because it was clear she was not entitled to any share of capital, either now

New Zealand Law Journal. August 16, 1932

or at any further time. It was clear, therefore, that he could not make the order asked for.

As to the widow’s application under the Family Protection Act, 1908 : She asked for a present payment of a capital sum out of the estate. The circumstances were most unusual, The capital value of the estate at the time of the death of the testator (August, 1930) approximated EZOO,OOO, and its present value notwithstanding the prevailing depression, was estimated at f.160,000. The bulk of the estate consists of a sheep station, and any income from the estate was more than absorbed in running expenses. That was all due to the depression.

The widow is entitled to the whole net income from the estate for her life or until remarriage. It was not disputed that had the times been normal, the provision made by the will for the maintenance of the widow had been not .only adequate but handsome. Her present position due to the non-receipt of any income, was, however, desperate, and there were dependent on her the infant daughter of the deceased, also some children of her own by a former marriage. None of the parties represented at the hearing disputed the truth of the widow’s desperate need of funds, nor did any of them oppose her application, although some were not prepared to consent to it.

Had the times been normal it would have been absurd to suggest that the testator had not made adequate provision for the widow. It had, however, been submitted that the Court must look at the position as at the time of the testator’s death, and it was clear that, due to the abnormal depression, a gift of income meant that for some considerable time the widow would be without means. If a testator by his will had provided that his widow was, after the expiration of five years from the date of his death, to receive the whole income of his estate, but that until that date income was to be accumulated, and if it were shown that the widow was entirely without means for that five years, His Honour thought the Court would in such case be justified in making an order under the Family Protection Act for adequate maintenance during that five year period. The crucial uoint for considering claims under the Act was the date of death (August, 1930). On that point, His Honour respectfully adopted the words of Salmond, J., in Welsh V. Mul- cock, (1924) N.Z.L.R. 673 at p. 687 : “Moreover the moral duty of the testator to make provision for the proper maint-enance of his family can only be ascertained by reference to the facts as existing at the date of his death, including of course amongst such facts the reasonable probabilities as to future change of circumstances.”

At the date of the tcstator’s death, the present depression had commenced. The testator had boen declared by this Court incapablo of making a will at a date some considerable time prior to his death, so that his mental condition was such t,hat there could not be imputed to him knowledge at the time of his death of the fact that his esta.te was not income-producing. Due then to unfortunate circumstances, the testator’s will, though of a most generous description so far as concerned his widow, was so drawn as to have the result of leaving her and the testator’s child in immediate want. Due then to world-wide conditions of which the testator at the time of his death could not have had proper appreciation, the will, as framed, had in fact resulted in leaving the widow without adequate maintenance within s. 33 of the Act. That being so the case was one where it would be proper to make an order.

Order made for payment to the widow from the capital of the estate of the sum of L400 per annum, to accrue from the date of the testator’s death. As this payment was intended to provide maintenance due to the prevailing depression, and the necessity for this order would, it was hoped, be of a temporary nature, liberty was reserved to any party to move for its discharge or variation at any t,ime. Power also was reserved to any party to nave at any time within five years of the making of this order for a further order providing for the repayment by the widow to the estate, by means of instalments of income, of any capital payments made pursuant to this order. Costs of all parties as between solicitor and client to be paid out of estate after taxation.

Solicitors for petitioner : Mazengarb, Hay and Macalister, Wellington.

Solicitors for Marshall, Gooseman, Scott and Southerland and also for Percy Humer : Webb, Richmond and Cornish, Wel- lington. -

Solicitors for Elizabeth Hunter : Perry, Perry and Pope, Wellington.

Solicitor for Mr. M. K. M. Hunter and I. F. Hunter : Sir K. Douglas, Wellington.

Solicitors for H. M. M. Hunter : Monteith, Ward and Macassey, Wellington.

-

Ostler, J. May 20, June 6, 1932. Wellington.

Re PATRICK, EX PARTE KAIAPOI WOOLLEN MANFG. CO. LTD.

Bankruptcy-Creditor’s Petition-After Return of nulla bona, Petition Filed on Same Day but subsequently to Third Party’s Payment into Court of Petitioning Creditor’s Claim-No notice of Payment given to Creditor’s Solicitor-Moneys later uplifted by Authorised Collector for Creditor-Repaid into Court by Creditor’s Solicitor-Whether Debt Extinguished- Magistrate’s Courts Act, 1928, S. 160-Bankruptcy Act, 1908, s. 30.

Summons to a debtor to show cause why he should not be adjudged a bankrupt, resisted on the ground that at the dat,e on which the petition was heard there was no existing debt due by the debtor to the petitioning creditor.

On February 2, 1932, the petitioning creditor obtained judgment against the debtor in the Magistrate’s Court, Wel- lington, for the sum of g116 11s. Id. Upon this judgment execution was issued, and on April 27, 1932, a return of nulla bona was made, which constituted an act of bankruptcy on the debtor’s part. The petition founded on this act of bankruptcy was filed on April 29, 1932. On the same date, but before the filing of the petition, the solicitors for a brot,her of the clebtor, acting under the instructions of the brother, paid the sum of $117 15s. Id. into the Magistrate’s Court at, Wellington in satisfaction of the petitioning creditor’s judgment debt. No notice of this payment was given to the solicitor for the petitioning creditor. The General Mercantile and Traders Agency, which apparently has general authority to collect the Wel- lington debts due to the petitioning creditor, acting in pursuance of such authority, on May 3, 1932, uplifted the sum paid into Court in satisfaction of the judgment, not knowing at that time that the petition had been filed. As soon as the solicitor for the petitioning creditor discovered this, the money uplifted was repaid to the Magistrate’s Court. Now, the petitioning creditor pressed for an adjudication, on the ground that the debtor had other debts which he is unable to pay (which was admitted), and that if it accepted this money and the debtor were subsequently adjudicated a bankrupt on the available act of bankruptcy, then, as the bankruptcy would date back to the date of the act of bankruptcy, the money would belong to the estate and the petitioning creditor would have to repay it to the Official Assignco.

Held : Petitioning Creditor was within his rights in refusing to accept payment. The debt was extinguished not by payment into Court, but by the creditor’s receiving it by its authorised agent. The money did not belong to the debtor, consequently the petitioning creditor was not prejudiced by its acceptance. Quaere : Whether if the money had been the debtor’s, the petitioning creditor had powcr to accept the money paid into Court after service of his Petition.

Todd in support. Harding to oppose.

OSTLER, J., said that counsel for the debtor had contended that payment into Court of the amount of a Magistrate’s Court judgment, by virtue of s. 160 of the Magist,rate’s Court Act, 1928, extinguished the debt. The section provides that in such zase it shall be the duty of the Clerk of the Court, without any application, to enter up satisfaction on the record of the judg- nent. In His Honour’s opinion that was not so if the payment were made after an act of bankruptcy by the debtor out of the lebtor’s moneys and the creditor refused to accept t,he money n extinction of his debt. In In re Ell, N.Z.L.R. 4 C.A. 11, nir Court of Appeal held that payment into Court of a judgment lebt under the Resident Magistrate’s Act, 1867, did not ex- jinguish the debt, and that a petitioning creditor had the right ;o refuse to accept the money so paid. It was true that s. 56 If that Act was not in the same words as s. 160 of the Act of 1928. But in His Honour’s opinion that circumstance made 10 difference. If a petitioning creditor after notice of an act ,f bankruptcy on his debtor’s part were obliged to accept noney of the debtor because it had been paid into Court he would be put in an unfair position. He would be obliged to let his petition go, and at the same time could not keep the money if another creditor should obtain the adjudication of the debtor on the same act of bankruptcy. Therefore, in His Honour’s opinion, he was entitled to refuse to accept payment 30 made just as he was entitled to refuse to accept a tender

* I


by the debtor of the debt : see Re Lowe, 7 Mor. 25 ; Re Gentry [I9101 1 K.B. 625.

But the petitioning creditor through its authorised agent actually received the money, and at that moment the debt was extinguished. It was argued that, as by s. 30 of the Act a petition once presented cannot be withdrawn without the leave of the Court, the petitioning creditor had no power to accept the money. His Honour said he could find no authority for that proposition beyond a doubt expressed by the learned author of Williams on Bankruptcy, 14th ed. 57, and His Honour was of opinion that a petitioning creditor may, after presentation of his petition accept payment of his debt from his debtor, but by so doing he ran the risk of the Court refusing leave to with- draw the petition, and making an order of adjudication, in which case, if the money paid to him belonged to the debtor, he would be liable to repay it to the Official Assignee for distribution among all the creditors.

Had it turned out that the money used to pay this debt belonged to the debtor, His Honour thought that in that case the Court ought to have treated the acceptance of the money on behalf of the petitioning creditor as being due to inadvertence and to have considered the case as though payment had been refused. The petitioning creditor was within his rights in refusing payment, and where there were other creditors which the debtor is unable to pay (as in this case) the only safe course for the petitioning creditor to adopt was to refuse to accept payment. But the money which the petitioning creditor’s agent accepted in this case turned out not to have ,belonged to the debtor. It was his brother’s money. It was not borrowed from the brother. If it had been it would have belonged to the debtor. So also if it had been given to the debtor. In one sense it was a gift, but it was a gift in such a form that it could not be considered part of the debtor’s estate, and as such distributable in bankruptcy among all his creditors. It was a special gift for one purpose and one purpose only, i.e. to pay this particular debt. The money was never handed over to the debtor, but was given by the brother to his own solicitor in trust to pay this particular debt. Consequently the petitioning creditor was not prejudiced in any way by its acceptance of the money, because it could never be liable to repay it to the Official Assignee. As the petitioning creditor was not prejudiced by the acceptance of the money, and as the debtor would be prejudiced by this acceptance being ignored, His Honour did not think the Court should ignore it. The acceptance entin- guished the debt and consequently the petition must be dis- missed.

The petitioning creditor was not, however, informed of the facts of the case. It was, therefore, justified in its action in repaying the money and proceeding with the petition, because it would naturally suppose that it was the debtor’s money which was used to pay the debt. It was not until the hearing that the true facts emerged, and they were actually put on affidavit, with the consent of the Court, after the hearing. That being so the debtor must pay the costs of the petition.

Solicitor for petitioning Creditor : Andrew G. Todd, Wellington. Solicitors for Debtor : Meek, Kirk, Harding, Phillips and Free,

Wellington.

Ostler, J. June 2, 6, 1932. Wellington.

In. re ADAMS (DECD.) : ADAMS AND ORS. v. COMMISSIONER OF STAMP DUTIES.

Death Duties-Settlement-Resulting Trust to Settlor on Failure of Settlement-Claim for Inclusion of Settlement Property in Dutiable Estate of Settlor who died about Twenty Years after Settlement made--Whether Reservation by Settlor for himself by Contract or otherwise-Death Duties Act, 1921, S. 6 (I) (c) and (I).

Appeal by way of case stated under s. 62 of the Death Duties Act, 1921, by the executors and trustees of the estate of Percy Bolland Adams, who died in Nelson in December, 1930. In 1910, upon the contemplated ‘marriage of his son Noel Percy

Adams, the deceased becane a party to a deed of settlement, under which he covenanted within three months after the marriage to hand over to two trustees the sum of E10,OOO or securities to that value, and he directed that his fund should be held and invested in the name of himself and these trustees upon the following trusts : “ To pay the income to Noel Percy Adams for life, and on his death to pay the income to his wife for life or until remarriage, and on her death or remarriage to hold the c@&l in trust for the children of the marriage as Noel Percy

Adams should appoint, and in default of appointment for the children of the marriage in equal shares, and if there should not be any child of the marriage, if the above-named deceased suwived Noel Percy Adams for the abovenamed deceased absolutely, but, if he (the settlor) should die in the lifetime of Noel Percy Adams, for Noel Percy Adams absolutely.” The marriage took place, the securities were handed over in 1911, and from that date to the present time have been held on the trusts of the settlement. The trust property was situated in New Zealand. Gift duty has been paid as on a gift of $10,000. The son and his wife are both still alive, and so far there have been no children of the marriage. On this state of facts respondent included this settlement property in the dutiable estate of the deceased, and this appeal was from that decision.

Held : There was no necessity to have provided that, if the son should die in the settlor’s lifetime, the corpus of the settlement property should return to the settler, since there is in law an implied resulting trust when the objects of a settlement become exhausted or fail. The settlor had accordingly done no more than to provide expressly for a right which the law gave him. No benefit had been stipulated for by contract or otherwise beyond what the law gave the settlor in any case.

Fell for appellants. Fair, K.C., Solicitor-General, for rospondent.

OSTLER, J., said that the Solicitor-General had contended that this settlement fund was included in the deceased’s dutiable estate by virtue of the provisions, firstly, of s. ‘5 (1) (j) and, secondly, of 5 (1) (c) of the Act. Under the first-named provision he contended that by the settlement an interest was reserved to tho deceased for a period determined by his death. His Honour said he could not agree with that contention, and in his opinion it was based on an erroneous view of the trusts of the settlement. The trusts were for (1) a life interest to the son ; (2) an interest for life or until marriage to the son’s wife ; (3) the corpus to the children of the marriage (if any),; (4) if no children the corpus to the son, but this estate was not to become vested unless and until the son survived the settlor. That was the whole object and scope of the settlement. It provided further that if the son should die in the settlor’s lifetime then the corpus should return to him. But there was no necessity to have provided for this in black and white. The result would have been the same if no such provision had been made. When the objects of a settlement become exhausted or fail there is always in law an implied resulting trust of the corpus of the fund to the settlor. In this case the settlor had done no more than to provide expressly for a right which the law gave him in any case. His Honour thought that became plain if the words in italics in the declaration of trust set out above were deleted. In that case, had the son died in the settlor’s lifetime, there would have been a resulting trust of the corpus of the settled estate to the settlor after the exhaustion of the life estate to the son’s wife, and in the event of there being no children of the marriage. But that was all that the words in italics provided for, so that the result would be exactly the same whether the words in italics were included or not.

The Solicitor-General admitted that if no more than a resulting trust to the settlor on the exhaustion of failure of the settlement was provided for, then such a settlement would not reserve an interest to the settlor for a period determined by his death or by the death of any other person, and therefore the settlement fund would not be caught under para. (j) of section 5 (1) as part of the dutiable estate of the settlor. His Honour thought that admission had been properly made, otherwise every settlement would be caught in pars. (j), for there is an implied resulting trust to the settler in every settlemen+ when its objects fail or are exhausted. It was plain from the wording of para. (j) that this was not the intention of the Legis- lature. On the contrary the Legislature plainly intended to exclude property comprised in settlements from the dutiable estate of the settlor except in cases where the settlor reserved a life interest to himself or an interest for a period determined by his death or the death of some other person. Here the settler had done no more than to provide in express words in the settlement for the reversion of the trust fund to him in case there were no children and his son died in his lifetime, which was no more than the law gave him without any stipulation on his part.

The Solicitor-General contended that the settlor had stipulated for more than a mere resulting trust, because he had stipulated for a resulting trust to himself for the period of his life only, whereas a resulting trust would have operated even after his death. This argument seemed to His Honour to be based on a confusion of thought, and a simple example would make this plain. Take the case of a settlement in trust for A for life


and after A’s death for B absolutely if he survives the settlor. If B died in the settlor’s life the trusts of the settlement would fail, and there would be a resulting trust to the settlor in his lifetime, subject only to the exhaustion of the life estate to A. The legal position would be exactly the same whether the settlor stipulated in the settlement for the reversion of the trust estate to himself on B’s death or not. If he did provide in the deed for the contingency of the trust resulting to him in case of B’s death, he would have to do so by providing that if B died during his lifetime, or if he survived B, the estate should revert to him absolutely. That was exactly what the settlor has done in this case. Where the last trust in a settlement was of the corpus to a given person upon his surviving the settlor, then a resulting trust to the settlor could only happen if he survives that person, and therefore can only happen in his lifetime. The Solicitor-General’s argument failed to take that fact into consideration.

It was also contended that the settlement fund was caught by the words of s. 5 (1) (c) of the Act as part of the deceased’s dutiable estate. That paragraph includes in the estate of a deceased any property comprised in any gift made by him “ unless bona fide possession and enjoyment has been assumed by the beneficiary not less than three years before the death ot the deceased, and has thenceforth been retained to the entire exclusion of the deceased or of any benefit to him by contract or otherwise.” It was admitted that possession and enjoyment of the settled property in this case had been assumed by the beneficiaries more than three years before the death of the settlor, and were thenceforth retained by them to the entire exclusion of any possession and enjoyment of it by the settlor, but it was argued that by the terms of the trust the settlor reserved a benefit to himself by contract or otherwise. But if no more was reserved than a resulting trust of the property to the donor in case the trusts upon which the gift was made fail, then no benefit had been stipulated for beyond what the law gives the donor in any case. Every gift to trustees upon trust for beneficiaries carried with it an implied condition that, if the beneficiaries die before they can by the terms of the gift acquire the corpus, the subject of the gift shall again become the property of the donor. If such an implied condition wore held to be a benefit to the donor, the value of every gift upon trusts, if the-donor died before the corpus of the gift had vested in a donee, would have to be included in the donor’s dutiable estate. That was plainly not the intention of the Legislature.

His Honour had considered all the cases cited by counsel, but in his opinion none of them has any bearing on the facts of this case except the case of In re Finance Act, 1894, and Cochrane [1905] 2 I.R. 626; [1906] 2 I.R. 200. That case was very much in point. In that case the facts were different from the facts here, because there was no ultimate contingent trust of the corpus of the estate to an existing person as there was in this case. The only gift of the corpus was a contingent gift to children answering a certain description, and not in existence at the time of the settlement. Those children might come into existence during the lifetime of the settlor, or they might come into existence after his death. Consequently when the settlor stipulated for a resulting trust of the corpus to himself it was necessary to provide for the trusts failing either during his lifetime or after his death. If the settlor in that ease had included in the settlement a t,rust of the corpus to his daughter if she survived him in default of children, (as the settlor did to his son in this case), then in order to provide for a resulting trust to himself he would necessarily have had to limit it to the event of his surviving his daughter. But, in His Honour’s opinion, this difference in the facts makes no difference in the principle. The Irish Court of Appeal held that a stipulation by the settlor in a settlement for the reversion of the trust fund to himself on the exhaustion or failure of the trusts of the settlement did not reserve to the settlor any interest “ for life or any other period determinable by reference to death,” nor was this stipulation a benefit to the settlor by contract or otherwise, within the meaning of statutory provisions corresponding with the words of paras. (j) and (c) of our Act. On that point, he could not find that the case has been dissented from in any subsequent case in the English Courts.

The case of Rabett v. Commissioner of Stamp Duties, 27 N.S.W. St. R. 370 ; [1929] A.C. 444, which was relied on by the Solicitor- General was easily distinguishable. In that case the settlement was not by a father on his son’s marriage, but an antenuptial settlement made by an intending husband. The trusts were for his wife for life, and after her death for himself for life, and after his death for the issue of the marriage. There was an ultimate trust of the corpus to the settlor if there should be no children taking a vested interest in the corpus. It was not this ultimate resulting trust, but the trust for the life estate

of the settlor, which was held by the Privy Council to bring that settlement fund within the words of the New South Wales statute corresponding with the words of our section 5 (1) (j). No life interest was reserved to the settlor in this case, and no interest for any period. And none of the other cases cited were helpful in the decision of this case, and therefore His Honour refrained from citing them.

Appeal allowed.

Solicitors for the appellants : Fell and Harley, Nelson. Solicitors for tho respondent : Crown Law Office, Wellington.

Myers, C.J. February 16, May 18, 1932. Wellington.

RANGITIKEI PERMANENT LAND, BUILDING AND INVESTMENT SOCIETY v. PETONE BOROUGH.

By-law-Unreasonableness-Building Permit Sought for Re- modelling Dwellinghouse into Flats-By-law requiring Party Walls of Subdivided Buildings to be of Brick, Stone or Concrete -Whether Unreasonable on Ground of Involving Substantially Increased Expenditure-Municipal Corporations Act, 1920, s. 354.

Action for a declaration that plaintiff entit,led to a permit to remodel dwellinghouse into flats and for a writ of mandamus commanding the defendant to issue such permit, which had bocn refused.

The plaintiff is the owner of a section of land in the Borough of Petone upon which is erected a dwellinghouse one storey high of approximately 12 rooms, which has for many years been used as a boarding-house. The plaintiff desired to remodel the internal plan of the building into four separate flats or tenements, each having its own separate ont,rance. It duly submitted plans and specifications to the defendant Corpor- ation and applied for a permit as required by the Borough Uy- laws. Such permit was refused. The defendant resisted the claim upon two grounds based upon its By-laws. Tho plaintiff’s answer was that the By-laws relied upon are unreasonable, oppressive, and ultra wires.

Held : Unless by-law plainly unreasonable, the question of expense to the owner must be subordinated to the safety of the public. Here, the by-law was not unreasonable or ultra wires.

Johnston, XC., and S. W. Fitzherbert for plaintiff. Harding for defendant.

MYERS, C.J., said that, firstly, the defendant relied upon cl. 15 of its Building By-law Amendment, 1930. That clause, under the heading “ Tenement Houses, etc,” is as follows : “ Except as hereinbefore provided no person shall erect a building to b0 used as a tenement house, apartment house, boarding house or private or public hotel, except upon such a site as the Council may determine to be reasonable for the special circumstances and the District, in which such building is to be erected.”

It was admitted that that clause in itself was not sufficient, because what the plaintiff proposed to do was not to erect a building but to alter an existing building. The defendant therefore invoked cl. 14 of the amending by-law, which clausa reads thus : “ For the purposes of this and of the principal By-law, the erection of a building on vacant land, or upon a parcel of land previously occupied by any building, or the re- erection of any building pulled down to within one foot of the ground floor, or the alteration or conversion of any building for a different purpose or purposes, or the subdivision of a building for separate occupation, shall be deemed to be the erection of a building intended to be used for the purpose or purposes for which such erection, re-erection, alteration, conversion or subdivision is made.” It was not necessary in considering this present point to refer to the principal By-law which was made in 1914, except to cl. 3 thereof, the interpretation clause.

The defendant said that it did not consider the site here to be suitable or reasonable under cl. 15 of the amending by-law. It was, however, to be noted that cl. 15 referred to a “ tenement house ” or “ apartment house.” There was no definition that His Honour could find anywhere in the By-laws of these terms : but there was in the interpretation clause of the Building By- law, 1914, a definition of “ Tenement Building,” which is ae follows : “ ‘ Tenement Building ’ or ‘ Apartment Building ’

August 16, 1932 New Zeal.and Law Journal.

means and includes a building consisting of two or more storeys erected for residential purposes, the different storeys of which building or parts of such storeys, are to ne used or intended or adapted to be used or occupied by separate families, or by members of more than one family, or by persons not of one family.”

In His Honour’s opinion, the words “ Tenement House ” and “ Apartment House ” respectively in cl. 15 of the amendment must be read and construed as if the words used were “ Tenement Building ” or “ Apartment Building.” If that be so, then it was clear that that clause could not apply to the present case as the building in question here was a building of only one storey. Consequently, the Corporation’s defence so far as it was based on cl. 15 failed. It was necessary to consider the question as to whether on any construction the clause was valid.

Alternatively, the defendant relied upon the cumulative effect of cls. 58 and 102 of the 1914 By-law and cl. 14 (set out above) of the amendment of 1930. In this connection, it should be noted that the building in question was within what is known as the No. 2 district of the Borough.

Cls. 58 and 102 of the 1914 By-law are as follows : ” 58. The external walls and party walls of all buildings horeaft,er to be erected within the said No. 2 District, and of all additions to be made to all buildings already or hereafter to be erected within the said No. 2 District, shall be constructed, and the external walls and party walls of all buildings and additions to buildings whether already or hereafter to be erected or made within the said No. 2 District shall be added to (whether in length, breadth, or height) altered, renewed, rebuilt, or repaired, only of the following materials, and in the following manner, that is to say- In the case of all party walls, and in the case of external walls within three feet of the boundary of any adjoining premises, in brick, stone, or concrete of the thickness described as for No. 1 District, and rising not less than eighteen inches above the square of the rafters.”

“ 102. If it be intended to divide any building erected prior to the coming into force of this By-law into two or more distinct parts intended to be occupied by different persons, then every wall constructed for that purpose must be built as a party wall and in the manner, of the materials, and of the several heights and thicknesses prescribed for party walls and if any building erected prior to the coming into force of this By-law be con- verted into or used or occupied as two or more separate tenements, each having a separate entrance or staircase (such conversion, use, or occupation not having been made, or not having taken place, prior to this By-law coming into operation) than every such building shall be deemed to be two or more separate buildings and must be divided by a party wall or party walls accordingly. It shall be the duty of the owner of the building to cause such subdivision to be made before it shall be con- verted, used or occupied as aforesaid. Provided always that in the case of a building of more than one storey where the lower floor is in separate occupation and the upper floor or floors in one occupation it shall be lawful to carry up the party walls (which must not be less than nine inches thick) to the height of such lower storey only. Provided that the ceiling thereof is lathed and plastered $-inch thick.”

If the question at issue here had depended upon cl. 58 alone, clearly enough the case would not be covered by it. But His Honour thought it was covered by cls. 58 and 102 of the 1914 By-law and cl. 14 of the 1930 By-law taken together. He thought, therefore, that the Corporation before granting a permit was entitled to require the plans and specifications to be altered so as to provide that the boundary wall on the south side of the building and also all internal party walls should be nine inch brick-work or reinforced concrete with suitable foundations. He could see nothing unreasonable in these By- laws. The plaintiff’s complaint was that compliance with the By-law involved a substantially increased expenditure, and that, therefore, the By-law was unreasonable. Mr. Fearn, the plaintiff’s architect, estimated the cost of the alterations proposed by the plaintiff at g450, and gave his estimate on the additional cost which would be required by compliance with the By-law at possibly 2250 or ;E300. He said, as a general observation, that if by-laws with reference to making party walls and ceilings fire-resisting were insisted upon, the proposition became non-economic, as a business man could not obtain a reasonable return on the capital invested. In answer to a further question, however, he said that in making this observation he was thinking more of Wellington than of Petone. Mr. Harcourt, a land and estate agent, called for the plaintiff, also expressed the opinion that it was not economically sound from the land- lord’s point of view if he had to comply strictly with the by- laws so far as subdivision was concerned. He, too, said he was

speaking of his experience in the City of Wellington. For the Corporation two witnesses were called-Mr. Graham, an inspector of the Fire Underwriters’ Association, and Mr. Hugo, who recently retired from the position of Superintendent of Fire Brigades, which position he had held for nearly 23 years. Mr. Hugo said, as indeed was obvious, that a building without brick or concrete partitions was of substantially greater risk in the case of fire than if it had such divisions. The main point in Mr. Graham’s evidence was that with brick partition walls tho insurance rate for a subdivided building varies from 7/6d. to lO/Sd. per cent. while with wooden partitions the rate would be 14/- per cent.

By s. 354 of the Municipal Corporations Act, 1920, the Council of a Borough is empowered from time to time to make such by- laws as it thinks fit for a large number of purposes. Those purposes include the general purpose of the good rule and government of the Borough, and the further general purpose of regulating, controlling, or prohibiting any act, matter or thing usually the subject of municipal regulation, control, or pro- hibition. Amongst the specific matters which may be the subject of by-laws is “ Prevonting danger from fire.” One could readily see that if a wooden house were divided into four flats or tenements the risk of fire, if the tenements are occupied, is much greater than if the whole house were occupied as one tenement. That being so, it seemed to His Honour that the question of preventing or minimising such risk when a house was subdivided into several tenements was a proper matter for a by-law, and that, unless the by-law was plainly unreasonable, the question of expense to the owner must be subordinated to that of the safety of the public.

His Honour thought the case was quite different from such cases as Waldegrave v. Borough of Palmerston North, 29 N.Z.L.R. 223 and Islington Estate Co. Ltd. v. Mt. Roskill Road Board, 30 N.Z.L.R. 91, which were cited and relied on by Mr. Johnston.

His Honour observed that cl. 14 of the 1930 amendment, which it was suggested on behalf of the plaintiff was unreasonable, was practically copied from s. 299 (7) of the Municipal Corporations Act, 1920. It was true that that subsection was a provision dealing with the prevention of overcrowding while the by-law was really dealing with the question of fire pre- vemion. He was not at all sure that a provision of this kind whirh was considered by the Legislature t,o be reasonable in the one case ought not to be regarded as reasonable in the other, because to some extent similar reasoning might be saicl to apply to both cases. He did not think it necessary, however, to invoke s. 299 (7) to justify cl. 14 of the by-law. Without any reference to that provision, the by-law could not be said to be unreasonable.

If then the plaintiff amended its plans and specifications as required in order to conform with the By-laws, it would be entitled to a permit. The defendant cannot refuse the permit for any reason based on cl. 15 of the 1930 Amendment.

Judgmont for the defendant.

Solicitors for plaintiff : 0. & R. Beere, Wellington. Solicitors for defendant : Meek, Kirk, Harding, Phillips and

Free, Wellington. --

Adams, J. March 15, April 12, 1932. Christchurch.

DALY v. FORSCUTT.

Patent-Validity-Method of Construction given in Provisional Specification-Alternative Method in Complete Specification- Whether Prior Publication and User-Whether Complete Specification included a “ Further or Different Invention ” from that in the Provisional Specification and was therefore Invalid-Patents, Designs and Trade-marks Act, 1921-22, s. 47.

Action for an injunction restraining the defendant from in- fringing Letters Patent No. 45870 and for consequential relief.

The patent is for a combined outlet bush and earth-clip for conduit which is described in the complete specification, and is lated May 13, 1921. The patent is, according to its express terms, to be construed in the most beneficial sense for the ad- vantage of the patentee. The plaintiff is the registered pro- prietor of a one-half share in the patent. In his particulars of breaches, he said that the defendant had infringed the patent by manufacturing and selling articles protected by the patent.

For the purposes of this case the defendant wrote to the plaintiff the following letter : “ Sydenham, Oct. 2, 1931. Mr.

214 .New Zealand Law Journal.

T H. T. Daly : Dear Sir,-With this letter I am sending you one of my Earthing Bellmouths No. 46237 which I told you in the letter yesterday Oct. lst, 1931 I had manufactured as suggested by His Honour Mr. Justice Kennedy. One of the Bellmouths was bought by Mr. G. Wilkinson, 137 Crawford Street under Protest on October 2nd, 1931. Will you kindly give bearer receipt for this letter, and bellmouth.-Yours faithfully, S. B. l?orscutt.”

Counsel for the defendant rested his case on the grounds : (a) prior publication and user, and (b) that the compl&e specification includes a further or different invention from that contained in the provisional and that the patent is therefore invalid for disconformity.

Held : The nature of the invention set out in the Complete Specification was identical with that described in the Provisional, and. upon principle and authority, the subst,itution of mechanical equivalents, modifications and developments within the scope of the invention set out in the Provisional Specification did not invalidate the patent for disconformit,y. Tho patentee had described and claimed two melhods, both of which were within the scope of the specifications.

Upham for plaintiff. Sargent for defendant.

ADAMS, J., said that on the facts, he found that the alleged anticipation on May 6, 1921, was not established.

The second defence raised by the defendant is that there was a variation between the provisional and complete specifications, inasmuch as the complete specification described and claimed a further or different invention from that contained in the provisional, and that as there was evidence to show that the defendant had used a similar device prior to the filing of that document the patent was invalid by reason of s. 47 of the Patents, Designs, and Trade-marks Act, 1921-22, which first appeared in our legislation in s. 43 of the Patouts, Dosigns, and Trade- marks Act, 1911.

Before that section could be invoked the defencIant must show that in the complete specification a ” further or different invention ” was claimed ; that was to say that the addition to the complete specification in this case was different in its nature from the invention protected by the provisional.

The nature of the invention was described in both the provisional and complete specifications as follows-“ It is the object of the present invention to provide for use upon the conduit a simple, inexpensive and convenient fitting adapted to combine the functions of an outlet bushing and an earthing terminal for such conduit.” In order to carry this object into effect, the patentee in his provisional specification outlined a method by which his invention could be constructed and per- formed. In his complete specification, he had not only described in detail this same method but also had added an alternative mode of construction. Those two methods are illustrated by drawings attached to the complete specification and were referred to as fig. 1 and fig. 2 respectively. Moreover, the claiming clause at the end of the complete specification covered both methods. On the authorities, it was clear that a patentee was not bound to disclose in his provisional specification anything more than a general outline of the nature of his invention and if he did describe a method of constructing the invention, as had been done in this case, he was not prevented from adding further details and methods to the complete specification provided that the invention remained substantially the same. The law on this point was admirably stated by Lopes, L.J., in Woodward v. Sansum and Co., 4 R.P.C. 166, at p. 178.

,

His Honour said he needed only to add that in his opinion the nature of the invention set out in the complete specification was not merely substantially the same as that described in the provisional, but was identical with it, and that the patentee was entitled and bound to describe in his complete specification the best and latest method of carrying out the invention. He had described and claimed two methods, both of which were within the scope of the specifications.

On the question of infringements, His Honour found that the defendant had infringed the plaintiff’s patent and threatened to continue the infringement of t’he patent as set out in the particulars of breaches in the statement of claim. was entitled to the relief he claimed.

The plaintiff

Certificate under section 40 of the Patents, Designs, and Trade- marks Act granted.

I I (

Solicitors for plaintiff : Harper, Pascoe, Buchanan and Upham, Christchurch.

Solicitors for defendant : Harold P. Smith, Christchurch.

Theoretically the difference may be slight ; in either case the legislation is adopted, or rejected, by the sovereign people, acting in the former case through their representatives in Parliament, in the latter case direct’ly at the poll. Practically, the experience of plebiscites, in Australia or New Zealand and elsewhere, shews that the difference is very great ; that to obtain an alteration of law by a nation-wide referendum is a very difficult matter. (Out of. a dozen referenda

August 16, 1932

An Important Constitutional Issue. The Attorney-General for N.S.W. v. Trethowan.

A report is now available of the decision of the Privy Council in A.- G. for N.S. W. v. Trethowan, the N.S.W. Upper House Abolition case ; see (1932) 48 T.L.R. 514, 73 L.J. 445, W.N. 141. It was argued for eight days before the Judicial Committee, whose judgment upheld the decisions of the Supreme Court of New South Wales and the High Court of Australia. The Attorneys- General of Australia and England intervened in the final court ; both interveners submitted argument to support the decision appealed from. New Zealand, whose Attorney-General did not seek to intervene, is as intimately affected by the result as any jurisdiction outside New South Wales itself.

It has been said that any Court charged with the interpretation of a political constitution must inevitably assume a political character. Especially is this the case when a constitutional issue is proposed, on which there is no previous judicial decision close enough materially to assist the court, and in which the doctrine that t’he intention of the enactors of the constitution must be spelled out and followed becomes the thinnest of fictions. The judgment of the Privy Council purports to be no more than an examination and interpretation of the constitutional statutes of New South Wales, and it is fair to say that no trace of any political leaning can be detected in reading it. The issue, however, lay too close to the roots of constitutional principles for statutes or precedents to have any real sontrol ; a decision either way could be adequately supported on purely legal grounds. Moreover, their Lordships can hardly have been left in ignorance of ;he immediate political results that must follow from iheir judgment ; if the proposed course of action of ;he late N.S.W. Government was legal, its political programme could be carried out without the restraint mposed by a somewhat adverse Upper House. If its :ontemplated action was not legal, that restraint Temained.

The subject-matter and effect of the decision (as it eft the High Court) have been noted in a previous Lrticle (7 N.Z.L.J. 63, April 28, 1931), and limitations If space forbid a restatement of them. The importance )f the decision now lies not so much in the reasons Yvhich produced it, as in its possible future effect as L part of our law. Shortly, that effect is this : the Yew Zealand legislature (or any other of the same type) nay at will “ entrench ” any of its legislation by pro- riding that it shall not be varied by amending legisla- ion passed in the ordinary way t,hrough the two Houses If Parliament, and thereafter assented to on t’he part If the Crown, acting on Ministers’ advice ; but only 3y legislation receiving, as an additional step inter- ?osed before the Royal assent, the approval of a majority If the electors given directly by a referendum.

August 16, 1932 New Zealand Law Journal. 215

for the amendment of the Commonwealth constitution, only a couple have been successful).

It would have been interesting if the late Government in New South Wales, instead of disputing the validity of the entrenching legislation of 1929, had accepted and imitated it, using the same method to put some of its own legislation out of the reach of future parliaments. Moreover, there seems to be nothing in any of the judgments in the case to suggest t’hat the referendum constituency must consist of the persons who are the electors. of members of parliament under the ordinary electoral law-now, in many jurisdictions, virtually the whole adult non-alien population. It would appear quite permissible to confine the referendum franchise to a special electorate, so constituted or de- fined as to make legislative alteration even more unlikely than with the regular electorate. In sum, the Judicial Committee has placed in the hands of any government that can for the time being command the necessary majority, a two-edged constitutional weapon of unexampled power, and capable of being used for unexpected purposes. The days of Darius have re- turned.

The teaching of constitutional history is that times occur when pressure is so great that a constitution must either bend or break. The continuity of British constitutional institutions has been due above all to the flexibility of the constitution. Even the Parlia- ment Act of 1911, which enables laws to be made in certain events by the House of Commons and the Crown, eliminating the House of Lords, serves to make .legislation easier, not harder. This and similar enactments must be classed as delegation ; what powers Parlia- ment has conferred, Parliament can take away. Such legislation leaves untouched the one rule of the Common Law which, it has hitherto been belived, even Parlia- ment itself could not abrogate-the rule that a Parlia- ment cannot bind future Parliaments ; that what one Parliament has done, another can alter or undo. Of the Parliament at Westminster this may still be true ; the absence of any constitution act could enable the present decision to be distinguished, if the courts were so minded. Note, however, that as the issue is one of the underlying common law, only the courts could so declare ; a mere Act of Parliament on the matter could, if the foregoing interpretation of the decision be sound, be brushed aside as easily as any other Act by the entrenching statute. In any case, unless nice variations of different constitution acts are invoked to Ferve as a ground for nominally distinguishing Trethowan’s case, of no British parliament save that of Westminster can the funda,mental rule of the common law of parliaments henceforth be predicted ; the way of entrenchment has now been discovered and pronounced valid. It might have been held that the constitutional statutes of New South Wales were necessarily to be read subject to the underlying common law of Parliaments ; but this view did not commend itself to their Lordships, and alt’hough, in effect, mentioned as one of the respondent’s contentions, it is not discussed in the judgment.

Though many people may regard it as politically fortunate in the present instance that the late Govern- ment of New South Wales was prevented from achieving its object of abolishing the Upper House of that State, others, taking a larger view, may regard the victory with the most serious misgivings. An Australasian Portia will be justified in saying that for all practical purposes there is no power in Sydney, (or, for that matter, in Wellington), can alter a decree established.

The Jury in Collision Cases. ---

Two Recent Decisions Considered.

A. L. HASLAM, B.C.L., D.Phil. (Oxon.), LL.M. (N.Z.)

Two recent decisions of a Court of final appeal in England are of more than passing interest to users of the highway. In both units the plaintiff had to face more than one trial ; in both, a favourable verdict’ from the jury was upset by the local tribuna,ls, and, in both, the defendant was the ultimate loser before their Lordships. The first case is our own much litigated Benson V. Kwong Chong and the other an appeal from a judgment of the Second Division of the Court of Session in Scotland--McLean w. l?eEZ (1932) T.L.R. 467.

The Plaintiff, Benson, came out of a side street on his motor cycle, and, the off-side rule notwithstanding, turned to his right in front of the approaching car, which was driven by the defendant’s servant. Issues were submitted to the jury and they found that the defendant had been negligent in driving at an excessive speed, that the plaintiff had been negligent in attempting to cross in front of the defendant’s car, and that the defendant’s driver could, up to the last moment, have avoided the accident by the exercise of ordinary care. Incidentally, they acquitted the plaintiff of havmg cut the corner, and the defendant’s driver of having proceeded on the wrong side of the road. The New Zea- land Court of Appeal was eventually of the opinion that the jury’s finding of negligence against the plaintiff was inconsistent with their answer on the last opportunity issue, and gave judgment for the defendant.

Benson’s appeal to the Judicial Committee was heard before the Lord Chancellor, Lord Blanesburgh, Lord Merrivale, Lord Russell of Killowen, and Sir George Lowndes, and their learned opinion was delivered by Lord Blanesburgh. When the cabled result of appeal reached these shores, many readers anticipated some informative observations on the law of negligence, with perhaps an illuminating decision on the real meaning of Loach’s case. But their Lordships confined themselves strictly to an analysis of the facts and “ found it unnecessary for them to discuss any of the delicate questions of law so much canvassed m the Court of Appeal and before them.”

.4fter pointing out that “ it is a serious responsibility indeed to treat as actually perverse a Jury’s verdict for the plaintiff,” their Lordships concluded from a detailed examination that there was sufficient evidence to justify the Jury’s findings. Furthermore, they considered t,he answers to be “ characterised by a nice discrimination.” There was ample evidence of the in- competence of defendant’s driver and he himself admitted that he first saw plaintiff at a distance of from 14 to 15 yards, but that he accelerated and swerved to t’he other side of the road in a’n endeavour to avoid him. “ If the Jury were of opinion t’hat the collision was really due to the youth and inexperience of this boy, unequal to a situation he had himself done so much to create, can it be affirmed that they were necessarily wrong 1 ” Before leaving Benson’s case, it is

216 New Zealand Law Journal. -August 16, 1932 .

perhaps gratifying to notice that, so far from expressing disa,pproval of the practice of submitting issues, their Lordships made full use of the respective quest,ions and answers in reaching t’heir conclusion.

In the Scotch case, t’he pursuer alighted at a st,opping place from an east-going tra,m car, and, after looking about for approaching traffic, proceeded from behind the tram car to cross to the south side of the road. Somewhere near the southern set of t’ram rails she was run down by the defendant’s car which was heading west. In this instance apparently, no issues were put to the Jury.

The Lord-Justice Clerk held that there was ample evidence entitling the Jury to find the respondent as to speed, omission to sound his horn: and failure to st,op or to swerve before the impact, but t,hat the pursuer could not be acquitted “ of negligence materially contributing to t,he accident.” The Second Division therefore assoilized the respondent from the conclusions of the action and the pursuer appealed to the House of Lords.

Lord Wright, who delivered the main judgment of t,he House, was not prepared to declare the Jury’s verdict perverse as they might have thought that the pursuer’s failure t*o notice t’he approaching car was due to its speed, and that at the time when she made her preliminary survey of the street the car was beyond t’he range of vision that might reasonably be demanded of her. He then proceeded on the assumption that, she had been at fault in crossing when she did. ” She may have been negligent in so doing, but that does not bar her claim, if the defender, by the exercise of reasonable care and skill, (which does not mean anything super- human or exceptional, wit,h all allowance for what is called the agony of the moment), could have avoided the pursuer even if the effect of t’he pursuer’s negligence . . . continued right up to the moment of the impact.”

Lord Wright then characterised the decision of the Judicial Committee in Loach’s case as being consistent with the general principles of English Law. He viewed the facts before him as falling within the class typified by that celebrated authority. He pointed out that the recent Judgment in Swadling v. Cooper [1931] A.C.1, had no bearing in this instance, as in that case “the Jury’s vedict for the defendant was upheld as the evidence was consistent with the conclusion that when the parties became aware of their respective positions t,here could have been no time for the defendant to avoid an impact.” He remarked that “ the driver of a motor car may be in a much better position to avoid a collision than a pedestrian,” and that the learned Judges in the Court below, who thought (as, with the utmost deference, many would beg leave to think !) that the pursuer had had an equal opportunity of avoiding trouble, “ were usurping the functions of the Jury.”

Lord Blanesburgh concluded his trenchant criticism of a witness in Benson’s case with the words “ If freedom of judgment in relation to t’he reliability of such a witness is to be denied to jurors, trial by Jury has become an outworn survival. It would be more candid that in civil cases at all events, it should be done away with altogether.” If the great candour of so drast,ic a step be conceded, its expediency and wisdom would be hotly debated. But in these times when every collision case involuntarily assumes an “ insurance ” penumbra, the t’ask of defending counsel is now fraught with increased difficulty.

-

Variations on a Judicial Theme.

Omniscence or Bewilderment on the Bench.

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

Both% the legal profession and the public will agree that there has been a lack of dignity, as The Times terms it, in the recent dispute between Lord Justice Scrutton and Mr. Justice McCardie, and t,hat such incidents as the one recently cabled to us, though they will not weaken confidence in a judicial system, must inevitably tend to lessen public respect for the members of the judiciary who provoke them. The comment, made by that august journal, is obvious enough ; and, since it was provoked, Mr. Justice McCardie has apparently seen fit to retreat from his statement that he would not supply a copy of his notes to a Court of Appeal of which the other was a member.

To dwell upon this aspect of the matter would be presumptuous on my part, but there is another aspect of the dispute with which, or with the implications of which, I think the profession in general is concerned. I refer to the surprise expressed by Lord Justice Scrutton that an unmarried judge should have explained what was the proper underclothing women should wear. The views of McCardie J. on this and other marital and sociological questions may have shocked, or even angered, him but they can scarcely have surprised him. At the Leeds Assizes last year, the former displayed no shrinking reticence on birth control and abortion.

The celibate state of Mr. Justice McCardie has not prevented him from enriching our law reports with some excellent judgments on matrimonial matters. There is the classic Butterworth v. Butterworth and Englefield [,1920] P. 126, in which his broad scholarship is illumined and in which he lays down the measure of damages for adultery and the value, in law, of a wife. Here, he traces the history of criminal conversation, as he was later to trace the history, through Roman law and modern continental systems, of the breach of promise action in Cohen v. Sellar [I9261 1 K.B. 536.

It would indeed be surprising if, aft’er sifting the mass of evidence in Callot Sa?urs v. Nash, 39 T.L.R. 292, he knew less of feminine apparel than he did of feminine frailty. “ It is as true in some cases to-day as it was when Ovid wrote 1.900 years ago,” he says, “ ‘ par,9 minima est ipsa puella sui,’ that is, ‘ the woman is the least part of herself ’ ” ; and again, in the course of the same judgment, he adopts the words of Victor Hugo in Notre Dame de Paris, “ Fashions have wrought more mischief than revolutions.” The defendant’s wife he described as the devotee of fashion. In his words, she disdained the high standard which has been created by the best and most gracious portion of English woman- hood, renouncing her duty at the call of empty pleasure and sacrificing her privileges of social service for the allurements of ignominious folly. In these cases, he rives us a picture of the foolish virgin, the indiscreet 1 matron, and the bestLdressed woman m London.

August 16, 1932 New Zealand Law Journal. 217

To proceed by way of obiter dicta from feminine outer garments to feminine underclothes is not, in this frank era, to go a great distance. Consistency, he as- serts, in Wickens v. Widens [I9181 P. 282, is a desirable feature in English law. The remarks of Scrutton, L.J., imply that his bachelor colleague has gone further than he should have done. Tha,t suggestion will probably amuse Mr. Justice McCardie. The more offensive implication is that his worldly intelligence and observation must perforce be less than the thousands who see semi-nude ladies displayed in the advertisements of newspapers and ,magazines and the millions who pay to see them on the films.

How can the administration of justice be improved if judges are to be hedged by taboos that rendered the mid-Victorians objects of ridicule to a Georgian generation Z How can appellate judges apply the test of the reasonable man except by t’he standard of worldly knowledge and experience ? It is not without sig- nificance that Scrutton, L.J., recently confessed his inability to decide how far the law permitted a judge to be a man of the world. “ It is difficult,” he said, “to know what judges are allowed to know, though they are ridiculed if they pretend not to know ” : Tolley ZI. Fry [1930] 1 K.B. 467. A few months before, in his judgment in Watt v. Longadon [1930] 1 K.B. 130, he referred to his trouble in determining, by the light of his own knowledge of the world, and his own views of social morality, the question as to whether a person is justified in giving to one party to the marriage in- formation, honestly believed .to be correct but in fact untrue, about, the matrimonial delinquencies of the other party.

One defers to these observations, of course ; but it is submitted that the confession of judicial bewilderment has less to commend it than the display of judicial omniscience. At, all events, the omniscience is more satisfactory to the litigants who usually prefer their problems solved by worldly rather than academic considerations ; and, from the point of view of the profession, it lends colour to the judgment. To illustrate this proposition, I respectfully make reference t’o the observations of Mr. Justice Eve in Re Thain 119261 1 Ch. at p. 684, where, in ordering the removal of a little girl of seven from t,he loving care of relatives who had reared her from birth, he says that he knows how mercifully t,ransient are the effects of parting and other sorrows and how soon the novelty of fresh surroundings and new associations effaces the recollection of former days and kind friends. In criticising these sentiments, Mr. Justice Ostler remarks, “ I suspect that the learned judge has never experienced the pangs of parting from loved ones and the bitterness of going to live among strangers while a child, otherwise he would have known that to a sensitive child such effects are neither merciful nor transient ” : re Hall, 8 N.Z.L.J. 70 ; [I9321 G.L.R. 206.

All this, it may be said, has more to do with apron strings than with underclothes. But I wonder whether Lord Justice Scrutton would regard an intimate knowledge of affectionate children as unbecoming to an unmarried judge. The principle is the same, but the moral may be decently obscured by relating the story of the occasion when Lord’Westbury fell into disgrace and was replaced on the Woolsack by Lord Cranworth. After the appointment, Queen Victoria said to Lady Cran- worth, “ My dear, do not recent events teach us how much wiser it is to be good than to be clever ‘1 ”

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i

London Letter. Temple, London,

1st June. 1932. My dear N.Z.,

In the all important appeal, Attorney-General for New South Wales vs. Trethowen and Others, the Re- spondent,s have won, as you will have seen long before you see this. It was never in doubt that they would, after t’he hearing had progressed far enough for Lords Atkin and Russell to indicate how their minds were working. But then ! I understand that it was never. in doubt that Orwell would win the Derby . . . I am told that Stafford Cripps and Pritt thought they had a winning case, and even thought that they had won it ; and it is interesting to note that the official Treasury opinion was on their side, as to the probabilities.

I suppose if you had to nominate the safest opinion, outside the Judiciary, upon Constitutional questions, . it would be to the legal side of the Treasury that you would point ; but in both issues, in this instance, it has proved to be wrong. First, the pundits said that leave to appeal would be refused ; in the appellate proceedings in Australia, the appellants had deliber- ately elected (the election being with them) to take the decision of the local Court of Appeal. I have seen t’he transcript of proceedings, there ; and the election was quite precisely stated : Let the fate of Australia be decided in Australia. And when leave to appeal was accorded, the Treasury pundits expressed the view t’hat 8. 7A of the Constitution (Legislative Council) Amendment Act, 1929, (New South Wales) was dtra uires and that that Constitution ‘must remain flexible. The Judgment, written by the Lord Chancellor and read at length by him yesterday morning shows no hesita- tion or wavering : the whole of the section was com- petently enacted : it was intra wires the Constitution Act of 1855, the Imperial Act-18 & 19 Vie. c. 54 ; and the opinion, widely expressed to the effect that the hearing would have been very much less. prolonged had the importance of the issue been politically less, appears to be justified by the tenour of the judgment.

Counsel and Board in the N.S.W. Appeal : Wilfrid Greene argued for the Respondents with his accustomed charm and allure, his effectiveness consisting (as you know) in a combination of the scholarship of a Fellow of All Souls with the very agreeable sound of his voice and an always recurrent smile. He is the type of advocate with which it appears tiresome to disagree ; and the characteristic of his address is its infallible orderliness of argument. Lord Blanesburgh, who was of the Board, presents t’he very antithesis of method of investigation, his impulsive discursiveness leading him to discuss any and every point, as it occurs to his quick and brilliant mind ; but if the head compels the critic to prefer the exact ratiocination of the famous advocate, the heart sorely tempts the same critic to give best to the famous Law Lord, so instantly loveable and enthusiastic and obviously generous does he always show himself to be. On more than one occasion have I seen the two great men in intellectual conflict : and if I have not often supposed that I must agree with Wilfrid Greene, yet I have always felt I should like to agree with Lord Blanesburgh. But, as I think I have said before, the controlling minds of this Board (the Lord Chancellor, Lord Blanesburgh, the Master of the Rolls and Lords Atkin and Russell of Killowen)


were the two last-named. All took an active part in the very lengthy discussion which was had ; and there were apparent the sturdy horse-sense of Lord Hanworth, and t,he quiet and very penetrating humour of our large bodied and large hearted Lord Chancellor.

Stafford Cripps conducted the battle with a per- sistence and an intelligence which did him great credit ; and I am told that it was thought, by those present that he would have been better advised to undertake the reply himself rather than to leave it, as it was left, to Pritt.

Judicial Loggerheads : I do not propose to discuss at any length our local stupid display of tempers in “ the Courts below.” Both Judicial Pugilists are credited with pronounced limitations, notwithstanding the genuine worth of their bztter qualities. McCardie, J., is much beloved by the man in the street, who (with his usual instinct for the truth) has observed in that puisne Judge a great sense of, and skill in, administering justice ; the discursiveness is genially t,olerated by everyday laymen who do not t,rouble themselves greatly with the niceties and origins of jurisprudence which the learned Judge examines with such minute care in his judgments. But he lets his sense of proportion run away from him too often ; and of this habit there was never a more mischievous occurrence than in this instance.

Everyone felt that Scrutton, L.J., had erred in his rough and too personal treatment of the judgment at first instance ; and everyone continued so to feel, and would never have forgotten to feel, till the (Bachelor) Judge at first instance opened his mouth and gave vent to his “ Public Rebuke.” At that, feeling turned ; the idea of any “ rebuke ” was ridiculous and absurdly out of place, in any event ; and in this event it had the normal effect of an attack : it awoke a new sympathy for the person attacked. Scrutton, L.J., is too heavy- handed ; and a bull in a china-shop in no way improves his position or disarms criticism and objection merely by exhibiting method and some cleverness in his process of destruction.

Rumour has it that the incident is not really closed ; but if you want to know what is actually felt and said about it all, at the Bar, the answer may surprise you. We are all politely bored, and a trifle irritated to have to hold, still more to have to express to our lay friends’ enquiries, any view of the matter at a,ll. Scrutton, L.J., serves a useful purpose, and on the whole serves it well, presiding over a Court of Appeal ; McCardie, J., even at his greatest length, a*ffords pleasure and satisfaction ; both have their personal friends, at Bench and Bar, but neither gives rise to any pitch of excitement, in any well-informed professional breast. Had the altercation taken place (as, of course, it never could have done) between more thrilling members of either Court, whom I could, but will not name, our attention would have been much more keen and our readiness to expound much greater.

It is said that the incident has done a great deal of harm to our prestige ; but this I do not believe. In these days, any newspaper topic is enjoyed ; and whatever milieu supplies it, the motor track, the aerial course, across the Atlantic, or the tennis court, or the film; advances itself a little in the public esteem. More- over, the Lawyer no longer occupies that pinnaale which was once exclusively his : the summit of public odium. Indeed: now-a-da,ys, we of the legal profession tend to become quit’e liked by our fellow beings ; and some there be, of the latter, who now come to en-

quire as to what in reality ever was their reason for abusing us !

The New Procedure : The next excitement, of the, many there are to record for the period, is the New Procedure : “ Order XXXVIIIA.” So far we have only discovered its de-merit ; its entire failure, or even its complete omission to attempt to marry itself with the long established “ Order XIV.“* True, Rule 3 of the New Procedure Order purports to deal with this aspect of business ; but I am entirely unable to give you the least indication of the reason for so belated and so patently futile an effort at metaphorical matrimony.

I suppose that to every one of us Jupiors the difficulty in this regard at once occurred : I mean, in actuality and not merely in contemplation. It may be said, and with truth, that a timorous attitude upon the part of the Masters in Chambers has done much to reduce the int,ended effect of the Order XIV summary proceeding principle. A Defendant has, it has been said, merely to state on oath that he would sooner not be subjected to any summary judgment but would welcome further delay, to defeat the whole process ; and, on t,he whole and notwithstanding waves (as it were) of temporary ruthlessness on the part of Masters, it is the fact, that no Plaintiff can ever be advised in any circumstances that he has any certain prospect of getting his judgment forthwith, if the Defendant is minded to resist him. Well, then ? This being a state of affairs so well known that it must be an acknowledged state, why did not those who were mandated to provide expedition and economy boldly begin upon Order XIV and give sense and substance to what, in principle was so very distinct from practice, is unarguably a ‘ good thing ’ ? Or, if there was some dark and un- mentionable reason forbidding this approach of the task, why at least did not the rule-makers see to it that their new process did not cut across the old and so legislate that, where the circumstances warranted recourse to the old method and also to the new, at least the litigant was not put upon his election excluding, at least at the &art, one or the other Z I fear that this is but another instance of our modern tendency, to advertise inces- santly our organising abilities and determinations, but to fail, when we get down to essentials, to achieve %ny useful result, deliberate or fortuitous.

Obviously there is some good in the new device ; and I would not be so foolish as to deny it. But where 30 much was possible: and where there was such authority snd support available for whatever might be devised it is melancholy to have to confess that this is the best we are competent to achieve ! Lengthy reports of lengthy discussions, however exquisitely worded and majestically phrased, are, in this matter, not worth anything : and if anybody sees in this new expedient sny effective deterrent of that felo de se which the practice of the law seems by its expense and delay to be bent upon then, he has more optimism than experience .

The Metropolitan Magistrates : The death of ti. Arthur Gill, a Metropolitan Magistrate for 24 years, salls for comment. The Stipendiary Magistrates of London, however small be their part in life, are a re- markable body of men and have won for themselves a most enviable reputation. Adjudicating with inevitable rapidity, they have established in practice that pkinoiple Eor which you and I are so enthusiastic in theory : that the administration of exact justice, in the small affairs

* See The Yearly Pm&ice, 1932,.Vol. 1, pp. 147, et 8q. :


of poor people, is even more to be desired that it is in the bigger causes of the well-to-do. Mx. Gill earned a great regard from all, practitioners and litigants, in this matter ; and he is true to type in this.

There still remain one or two rat’her dry old sticks

New Zealand law Society.

(Mr. Gill was never one of them) among the Metro- politan Magistrates ; but their hostile critics are mainly among that newly arrived class of minor misdemeanants in the Police Courts, motorists. Probably such grounds for criticism as they have (if any) represent no more than complaint of a virtue carried to excess : the Stip- endiary Magistrates in their devotion to the cause of the poor, may, in some instances, have tended to become unnecessarily impatient with and intolerant of the rich offenders !

The Duties of the Proposed Exe&iv Officer.

Elsewhere in this issue, the New Zealand Law Society invites applications for the position of Secretary, combined with the Secretaryship of the Wellington District Law Society. This ij the new office referred to in the report of the last meeting of the parent body on page 187 ante,.

In any case, the body of men, of whom Mr. Gill was on&, deserve your unqualified approval by their works : and the death of Mr. Gill,. in his sixty-eighth year, is much to be deplored.

New Recorders : That everybody’s friend, old Storry Deans, should be appointed even thus late in life Recorder of an important Borough, Newcastle-on-Tyne, is a most welcome event : he is a funny old thing, and it is impossible not to like him when you run across him. Moreover, he suffers none of the usual disqualifications of the class of funny old things, being thoroughly alive, very human and broadminded as well as an able lawyer. The appointment of Cotes Preed.y, of the Divorce Court Bar, to be Recorder of Oxford IS less to the point and considerably less happy.

The duties which the new Secretary will be required to undertake are as follows :

1. To act as Secretary of the New Zealand Law Society and to conduct the correspondence and keep the books of that Society.

2. To act as executive officer of the Committee of Management of the Fidelity Guarantee Fund appointed under s. 79 of the Law Practitioners’ Act, 1931, and in particular to investigate all claims made upon the Fund, and to keep all books and accounts relating to the Fund.

3. To take charge of all proceedings under the Law Practitioners’ Act subsequent to the making of the rule nisi in the Supreme Court, and to act as counsel for the New Zealand Law Society in all matters in which it requires to be represented in Court.

There must be a Divorce Court : it must have a Bar : and the Divorce Court Bar must be composed, no doubt, of barristers. But there is nothing to be said for the present-day system of appointing to recorder- ships, which are almost entirely post,s of a criminal jurisdiction, from members of these specialist and almost alien Bars : the Commercial, the Parliamentary, and, now, the Divorce Court. The appointment’ has to be made from the Circuit, within which the Borough in question lies : but the membership of the circuit, in the case of such recent appointments as we are dis- cussing with regard to the last of them, amounts to no more than this, that the barrister was, in his far distant youth and before he specialised, a member of it, nominally, but never a very active member of it. Starry Deans, on the other hand, was intimately ac- quainted and much occupied in the North Eastern Circuit, in which Newcastle lies : and we must pre- sumably be thankful that in one instance, at any rate, the Home Secretary has troubled himself to do the right, thing.

4. To compile and keep a register of all practising solicitors and their auditors.

5. To take charge of the issue of Trust Account Receipt Books.

6. To act as Secretary and Librarian of the Wel- lington District Law Society and to conduct the correspondence and keep the books of that Society.

7. To undertake such other duties as the Societies may from time to time decide upon.

Applicants must be qualified Barristers with knowledge of accountancy.

The successful applicant will be required to devote the whole of his time to his duties. The commencing salary will be aE750 per annum payable monthly. The successful applicant will be required to commence his duties on or about January 10, 1933. The engagement will be terminable by either party by three months’ notice in writing.

Applications in triplicate with copies of testimonials should be sent to the President of the New Zealand Law Society, Supreme Court Buildings, Wellington.

The Solicitors’ Bill : It only remains to mention, as a matter probably of nearer interest to you than it is to me, that the Solicitors’ Bill has now been reported upon, by the Joint Committee which considers ‘ con- solidation ’ bills. This form of legislation is privileged in many respects, with a view to an expeditious and less precarious enactment ; and before allowing any particular bill to enjoy the privileges, and so escape a certain amount of parliamentary supervision in the passing, t’he Committee has to be satisfied that it enacts no new law but merely codifies what already exists, in one Act or another or elsewhere. Thus this Bill, which will much clarify the legal circumstances of that branch of the profession, produces nothing new but makes it clear how matters already stand. As you know, with us, there is unequivocal severance and separatism of the two branches ; but to those who enjoy any degree of fusion, this Bill must be a matter of interest to ‘ barristers ’ and ‘ solicitors ’ alike.

Yours ever, INNER TEMPLAR.

Advocacy of a Sort. --

In the Court of Chancery, not so very long ago, an eminent Chancery leader asked a witness in cross- examination whether it were true that she had been convicted of perjury. The witness owned the soft impeachment, and the cross-examing counsel quite properly sat down.

An equally eminent Chancery counsel rose to re- examine his witness. “ Yes,” he said, “it is true that) you have been convicted of perjury, but tell me : Have you not on many other occasions been accused of _... perJury and acquitted ‘1 ”


Up to the Minute Case Law.

Noter-up Service to The English and Empire Digest.

All important current cases since the last Supplement (Jan. 1, 1932) to the EngEi#h and Empire Digest are indexed in this feature under the classification prevailing in the latter work.

The reference given in brackets imtiediately follow- in the case is to the page in the current volume of The Law Journal, (London), where the report can be found ; and, secondly, to the Digest, where all earlier cases are to be found.

EXECUTORS AND ADMINISTRATORS. Probate-Practice-Trial at Assizes of Probate Action-

Jury-Judge’s Discretion.-WATKINS 2). REDDY (p. 395). As to trial of Probate Actions with or without a jury : DIGEST

23, p. 121.

INCOME TAX. Voluntary Payment to Schoolmaster on Retirement-Money

Received by Virtue of Office-Income Tax Act, 1918, Scheds. D, E.-STEDEFORD (Inspector of Taxes) 2r. BELOE (p. 254).

As to income tax on salaries and pensions : DIGEST 28, p. 85. Mutual Insurance-Surplus Going to Insurer-Taxable

Profit.-MUNICIPAL MUTUAL INSURANCE, LTD. V. HILLS (In- spector of Taxes) (p. 255).

As to the assessment of Insurance Companies : DIGEST 28, p. 57.

Residence Abroad-Income from Possessions Abroad-Sub- uequent Residence in England.-BacK (INSPECTOR OF TAXES) v. WHITLOCK (p. 292).,

As to dividends on foreign securities : DIGEST 28, p. 77. Advance by Bank-Advance and Interest Guaranteed-Total

Sum Eventually Paid by Guarantors-Whether a Payment of Interest-SIR H. C. HOLDER AND ANOTHER V. INLAND REVENUE SOLICITOR (p. 327).

As to income tax on annual interest : DIGEST 28, p. 50. Charity-Exemption-Zionist Association-Objects of Settling

Jews in Holy Land.-KEREN KAYEMETH LE JISBOEL, LTD. v. INLAND REVENUE COMMISSIONERS (p. 379).

As to exemption from duty in favour of charities : DIGEST 28, p. 82.

INSURANCE. Insurance (Marine)-Practice-Order for production of Ship’s

Papers.-LEON ‘u. CASEY (p. 429). As to the Order for discovery of Ship’s Papers : DIGEST 18,

p. 93.

NEGLIGENCE. Sale by Manufacturer to Retailer-Ginger-beer-Illness of

Purchaser from Drinking - Liability of Manufacturer.- M’ALISTER OR DONOCHUE (PAUPER) v. STEVENSON (p. 428).

As to the duty to take care: DIGEST 36, p. 12.

Rules and Regulations.

police Offences Act, 1927. Amendment3 to the Police Offences (Wrestling Contest) Regulations, 1931. Gazette No. 52, August 4, 1932.

Public Revenues Act, 1926 ; Finance Act, .1930. Amendments to Treasury Regulations me form of ‘ sight ’ drafts. Gazette No. 52, August 4, 1932.

Judicature Act, 1998 ; additional sitt,ings of the Supreme Court at Westport appointed, to commence on September 7, lg32. Qazette No. 52, August 4, 1982.

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Legal Literature. Russell’s Legislative Drafting and Forms

by SIR ALISON RUSSELL, of the Inner Temple, formerly Chief Justice, Tanganyika Territory. Third Edition. Butterworth Q Co. (Publishers) Ltd. ; pp. 504.

The drafting of Local and Private Acts, as well as subsidiary legislation, often comes within the duties of practitioners. The difficult technicalties of Bill- drafting necessitate a competent guide who can both explain and illustrate : “ Nothing is so difficult as to construct Acts of Parliament properly, and nothing so easy as to pull to pieces,” said Lord St. Leonards in O’Plaherty v. McDowell, 6 H.L. Cas. 179. Apart from the Forms of Bills and of miscellaneous clauses, orders, proclamations, by-laws, and appointments, the illuminating observations of the author on the drafting of legislation are particularly useful. That they have been so acknowledged is evident from the fact that this is the third edition of his work within seven years. He acknowledges the assistance given him by Mr. C. T. Carr, Editor of the Revised Statutes which officially brought the legislation of Great Britain up to date, and by Mr. A. M. Talbot, Reporter for the Law Reports of Privy Council Appeals. They have done their work well, especially by providing references to authority for interpretations of incidental clauses, words and phrases in the Forms, thus by anticipation enabling draftsmen to avoid pitfalls by profiting from relevant judicial decisions.

Supplement to Stroud.

Supplement to the Second Edition of Stroud’s Judiaial Dictionary. By ELSIE MAY WHEELER, of the Middle , Temple and S.E. Circuit, Barrister-at-Law. (Sweet and Maxwell Ltd., and Stevens and Sons Ltd.) ; pp. cvii; 1035.

This is the second Supplement to the later edition of this important dictionary of statutory definitions and judicial interpretations of words and phrases. It in- corporates the first Supplement, written by the author himself down to 1906. Miss Wheeler has carefully followed the late Mr. St,roud’s method to show us the mind of British Judges down to the end of 1929 “SO far as it has been expressed in the practical meaning of the English language.”

New Books and Publications, Final Forensic Fables. Second Series, 1932. (Butter-

worth & Co. (Pub.) Ltd.). Price S/S. Houseman’s Life Assurance, 1932. (Butterworth & Co.

(Pub.) Ltd.). Price 13/6. Income Tax Law, Practice and Administration. By F. F.

Sparles, W. J. Eccott, R. P. Groom-Johnson, and L. C. Graham-Dixon, 2 volumes. (Isaac Pitman). Price 9616.

Convicting the Innocents--Errors in Criminal Justice. By E. M. Borchard. (Oxford Press). Price 21/-.

Annual Survey of English La%, 1931, (Sweet & Maxwell Ltd.). Price 13/6. ,

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