LOW REPORTS. COURT OF APPEAL.

Dominion, Volume 2, Issue 490, 24 April 1909, Page 12

LOW REPORTS.

COURT OF APPEAL.

PROBATE OF A NATIVE'S WILL. Argument was heard in ;tho Court of Appeal yesterday .with regard - to the case botween Nika ■ Waiata. and others (plaintiffs) versus- Grcgor M'Grogor and; another (defendants).';// :/ ''i"V'■ r l, ■ Sir.Dunn. nppearod :on behalf of. plaintiffs, and Mr. Uutton, of Wanganui, for do-1 'fondants^'--^-','.' This was an originating summons undor the Declaratory Judgments Act, 1808,. to bocure an authoritative:. docision as . to what Court, had. jurisdiction to revoke tho probate of a Native's frill granted in tho Native baud Court.' , i'laintilfs are tho next of kin. of ono Wgawai te Mawae, lato of i'aiihaka, who died, leaving a will in favour of the,defendants. It was proposed by plaintiffs to bring an action, to have probate recalled or revoked. Defendants , contended that a grant of probate by the Native Land Court, oven atlhough made in common form, was conclusive., The question for the Court to decide was whether that contention- was right in law.. ■ -Mi'. Justice \yilliams held that the answer to the question submitted Was that the Native Land Court alone had jurisdiction to order a grant of probate to be recalled. Tho Aot gave the Native Land Court, power to grant probate, which included power to grant it in ''solemn form" as -well as in "common form.''. When probate had been granted in "common form," it was open to any person interested to compel, the persons to whom probate had been granted to prove the will in "solemn form." That could be done under tho jurisdiction of the Native Land Court.. Tho Court of Appeal had been expressly deprived of jurisdiction under the Act.- :■ .' % Justices Edwards and Cooper came, to tho same conclusion. ■ No costs were allowed in connection with the matter.

a hatoeA wreck case. '"■ ."■'■' .■ ' ■■ ■■' -. ,'. ■ 9: ——• ' ".■ .'. '".' ■■. ■ .■ • RIGHT TO FREIGHT/ON LOST GOODS. A question of 'considerable importance to shippers was involved in tho case of. the U.S.S. Co. versus E. ■p'ickes, Ltd. Mr. Hosking, K.C., of Dunedin (with him Mr.: Levi), appeared for plaintiffs, and Sir. Stringer, K. 0., of' Christchurch (with him Mr. J. L..Stout)j for defendants. This was an action tried at Holritika, before Mr. ; Justice Cooper, and ordered to bo removed into ■ tho Court of Appeal for judgment. ■, Plaintiffs asserted that in October. 1908, defendants shipped on board pkantiffs' s.s. Hawea, at the port of Grcyniouth, ihe following quantities of '. timber:—l79,9ooft. white pino for Launcestbin 634,055 ft. red and white pine for: ; Adolaide. Tho freight agreed to bo paid was stated to bo 4s. per 100 ft. on tho timber for Launcoston, and 3s. 6d.vper 100 ft. on that for Adolaido, freight being payablo at Greymouth upon 'the. com;pletion of loading and delivery of the bills of loading. The amount duo under the contract was in all £1294 9s. 4d.' Defendants, on tho other hand, declared that, if tiiere wa's any contract between tho parties,;it was a contract for payment of freight upon delivery of the timber at the'port, to which it was consigned. , - . : . -v, .:.■'■

For the plaintiffs, Mr. Hosking said that the timber was shipped under a bill of lading/ Half an hour after tho vessel sailed she was wreoked. No ■ freight had been paid before the ship left,, Dofondants denied the right of'plaintiffs to demand: freight under the circumstances. Plaintiffs' relied upon olause 18 , in tho.bill of which began:— "Freight, when : payablo ; by tho shipper, is to bo considered as earned—ship or. goods lost or not." The whole question turned on the effect that, the clause Tiad on the rights of tlio parties. Dofendante brought forward tho isubstantialpoint, that they had had many protons transactions of a similar kind ,with plaintiffs,: and that the ft-oiglit, although made 'payable as oxprossod';in : tho bill.: of .lading at the port of shipment, was nevertheless not collected by , : until 'after" tho goode -had arrived at tlleir , port' of destination. Plaintiffs'• answer to that contention was that tho evidence which had beon , admitted with. regard ,to ' previous transactions was inadmissablc, inasmuch as it was directly contradictory .of tho terms of the written instrument.' The Court might be asked to draw the infororioe that the credit previously given should also , bo given in tho present instance. Clause 18 was subversive to anyv contract that freight :,was'not to bo paid lf.the ship was lost.' Tho whole point was this:—lf froight was paid in advance, tie personwho paid nad tho right, to insure, but, 'if tho froight.was; not paid in "advance—and be might,say it,was frequently done—then: the freight might bo insured by adding the value of it to the value of tho goods, or it might be insured_ eo nomine as advance freight, _ If the shipper had become. liable. to pay freight, and'had not paid it, be might still insure the amount as being at his risk. The owner of-the ship could not insure that freight because it was a mere debt. If what he had. said was, correct,' the plaintiffs,could not have proteoted themselves, whereas the defendants did insure tho freight to the extent of over £SOO. Judgment ■ ought, ho urged, to go' for the plaintiffs. ■ ■. ■ Mr. Stringer, for .the defendants, said t&at, when freight was to be paid in advance of delivery, it was always.embodied in tho contract. ; It was noL clear under the contract that clauso 18 was'meant to,'modify ~the' usual , right'of the shipper to have the;goods' safely deliveiied.- The 1 , clause in question was in direct conflict with tho main body of tho contract; and, musi; thofefoi'o be superseded. The contract was , at'least ainbigupus, and plaintiffs, by their coufso' of:.dealing,, had j adopted-a construction which imposed upon them.the duty to deliver. : '■ : ! : Mr. Justice 'Williams held that the language of olause 18 of tho bill of lading waa as dear as, language could bo. It did not follow that because froight was to bo considered as earned—ship lost or not lost—that it; was payable■'before; tho ship sailed. It : might well bo that.it was contemplated by the parties that the froight should be payable if the goods wero deliverecl, or that, if tho goods were lost, it should then be payablo. The , stipulation that the freight was 'to be considered as- earned—ship lost or not made the freight payablo in the event of Uio goods being lost. The first part of the bill of lading; which set out the contract, made it subject to , the' stipulations; afterwards mentioned. Clauso 18 was ono of those stipulations. Defendants knew of the contents of tho contract, and were bound by them. If it werb said that there was ovidenco showing that, according to tho oourse of dealing between tho patties, ; delivery was intended, to bo a condition precedent to| the paymcnVof froight, it seemed to him that that evidence .would not bo admissible to contradict the written contract. 'Assuming that sucli evidence were admissible, no usage was shown that, according to the oourso of dealing between the parties, delivery was a condition precedent., In order to show that, it must bo clear that thero woro 'cases where goods had not been delivered, and, not having been dolivored, payment was not insisted upon. It was quite clear in his opinion that plaintiffs wore entitled'to judgment. Justices Edwards, Cooper, and ■ Chapman concurred. l . : ■ . Judgment was ordered to bo entered in the Supreme Court, with costs on the highest scale, disbursements and witnosses' oxponses and costs in the Court of Appeal on tho highest scale. ';,. ■