LAW REPORTS.

Dominion, Volume 2, Issue 573, 30 July 1909, Page 2

LAW REPORTS.

COURT OF APPEAL,

INTERPRETATION OF A WILL,

The Omirt of Appeal resumed sitting yesterday, their Honours Justices Williams (Acting-Chief Justice), Donniston, Edwards, Cooper, anil Chapman occupying the Bench. Judgment was delivered in the case, heard on July 15, which involved the, interpretation of tho will of James Alexander/ deceased, late of Wangimui. Appellant was Aloxander Alexander, larmcr, or New Plymouth, and the respondents wcro Elizabeth Alexander, of Wanganui, and Ewou Alexander Campbell, farmer, of Wanganui (as.trustees under tho will), Elizabeth Alexander, in her own right, and Thomas Alexander Low, furrnor, of wanganui (representing all nephews and nieces and'issue of tho deceased). Mr. Martin Chapman, K.G.,: Mr. J. 11. Hosking, K.C., (of Duncdin); and Mr.: C. 1\ Brown (of Wangnnui) appeared for tho appellant. . Mr. 0. C. Hutton, of Wanganui, appeared for ; the trustees; Mr; W: H. Bamicoat, of Wanganui, for Elizabeth Alexander, daughter of James Alexander; Mr. G. Hutchison, of Wanganui;", for tho nopbews and nieces in the Dominion; and Mr.' G. S. Gordon, of Wanganui, for the Public Trustee, as. representing' tho nephews 'and' nieces not resident in N,ew Zealand. Tho facts, as stated before tho - Lower Court, wcro that James, Alexander, who died on July 14, 1895. devised his estato : to trus-' tees, to pay two-fourths of tho'income thereof to his wife during her widowhood,.and, from and after her death or re-marriage, to pay one-fourth of tho income to his son, William Alexander, during his lifo; Power was given to William Aloxander, in the, event of his leaving.! no issuo, to appoint by will onefourth of tho capital of the residuary estate of James Alexander. William. Alexander predeceased James Alexander's widow, without issue.' Alexander Alexander, tho trustee, claimed that, by his will, William Alexander did'oxorciso tho powers of appointment as to the one-fourth of the residuary estato of James' Alexander, and that' he (Alexander Aloxander) therefore entitled absolutely to that sharo'himself. Tho, trustees of the will then took out > an".. originating summons to have this , question determined. Mr. Justice: Chapman had decided that the will did not operate as to tho exerciso of the power of appointment given William Alexander. In" default of appointment by William Alexander by, the . terms of James Alexander's will, the fourth sharo would go to James Alexander's nephews and nieces. Alexander Alexander appealed from this decision. -" ; - '•;.'' . ■. >' ■.Tho Court,decided that tho. appeal must bo upheld., Costs were allowed to the appellant, £10:10s. in tbo Court below, and on tho ;, highest, scale .invtho Appeal, Court. Elizabeth Aloxander was allowed a similar amount. Tori guineas, costs,(Lower Court) and twentyfivo guineas, costs (Appeal Court) were • allowed: to ; Thomas Aloxander Low and.'.the, Public Trustee, the sum. to be. equally, dijivided.; : Air-order was made that, the costs. should bo paid out of the residuary estato of James Alexander; ,-"■',,.

| MINERALS IN CROWN LANDS. ■■■ I HOW "DEEP , '''IS SUCH LAND |. ■-.'. :.■ : : ACQUIRED?; The, Court also delivered judgment in the case of _tho Commissioner of Crown Lands, Taraiiaki, v.'-.John-Blackball Bennie, which was argued on July 7. .'Mr. M. Myers appeared for the' appellant, and' Mr; C. I'. Skerrett, K.C., with, .him Mr. M'Veagh (Eltham), for the respondent. . :'.■"''.' ■ The facts' as alleged were that respondent was the holder of a lease-in-perpetuity under Section 121 ..of .."'the- Land Act, 1892, which provided' that, where any minerals had. been discovered under Crown lands, or the existence of minerals was probable,only: "the surf aco of thc_: land might be "leased in! perpetuity, the minerals Leiiig~rcserved to 'Vfi'e Crown./ There': wa's'fa''spec'ial''condition in tho lease to-the effect that, all minerals, .verb so:reserved) • , ahd i :the'lease ; purported to be ; of the;surface•only3'!'':Secti6rf^2o:of. the. Land Laws, Amendment .Act,, .1907,,.;( provided that: "Every* owner; of fa" lease-in-perpetuity shall, have the right at any time hereafter, during the existence of the lease^.te> nurchaso'the feo-'sdnlplo: of 'the land •comprised' ■in the lease/at a fence equal to the""capital value of :tho 'said land;.at the time ; of; the purchase thereof. The "'capital .value: shall be determined j by .valuation, or: arbitration in the manner ■ provided in; this section, .and shall include the value of all' minerals other than gold and silver,'.', etc.' The respondent claimed that l this 1 section referred..to' all; . Teases-in-perpetuity, .;■;' whether of the fee simple or- of ,: the surface .only, and-, he claimed tho right to purchase tho; fee simple of: the land comprised in his leaso, including, the minerals'other than.gold and silver. Mr. Justieo Chapman had upheld this contention, and an- appeal,; from; this decision,, was■.'. now: brought by. the appellant on behalf of -the Crown..;. '.'..,'.',' ■ '••'.-.■'.'■,. • '• Tho appeal, was dismissedj; and .the ■ of cbsis.was reserved.:. Mr. Myers 'was granted 1 leave,: on tho usual terms, to appeal to the Privy Council. : ~ : ': v , '~... . ;

i; ; AN INTERESTING APPEAL..; r. : not'made soon-enough!. ;;' ,''A peculiarity'of the case Rex v. Olipliant Hughes, mentioned yesterday in the'■•'Appeal'. Court, was thatHughes, who had been sentenced at Wan'ganui to eighteen months' imprisonment for perjury; made no application for a re-trial 'of the case ■ until ; some, months after he'had been discharged from gaol. .A motion for a new trial was jiow made bv l Mr. Levi, ou behalf of .Hughes. Mr. M.'Myora appeared'forth© Crown;'' ' ■ ■■'■." •; Mr. Levi said thattlio delay' in bringing. l tile matter beforoHhe .Court had ib&n'caused, by tlio ■ impocuniosity of the-' appellant. .' : ~Mr> Justice • Dehmaton remarked that the proceedings to: have been' taken '■]&'.' tlio interests of tho man's family, f. Ho himself had not taken any ' .':: .".■-.:.| ■ '.Mr. Levi: He seems'to have' been ignorant that he had; any-'right;;/ '.' r:°,'''' :■ ; : Mr. .Justice Cooper-'said that no -'applica-1 tioa- for/a new trial'was>niad<! tO' ln'm at tho trial in Ayauganui'in : MajV;l9o7. ..'Nothing was dono during tlio period of the sentence, and' the•'first" application to, the' ■''■ Court''.'was 'made before liim.'at'Hokitika long'after'the hian : had come out of'gaol. Leave was then giVen : to move in>the.Court of Appeal;"'; After further argument tlio ; Court decided ■thata new trial should jiot bo ordered; Mr. Justice : Williams remarked ■ that ho 'would hot' lay down any general' rule' that a' person who 'had'served his switerico : was' absolutely' disqualified.'from' applying for: a now. .trial, Oases might occur in winch fines were : inflicted or probation granted. The'essential point, was tliatan application should be'mado promptly." Nothing deteriorated .'more by tho lapse of timoth'aii evidence. Not only were witnesses! liable to die Or disappear; but human "memory, at tho best, was fallible: '■■'■-.■ ■ ■';' . ■:■. ■ ."."-. -' ■'.;.., : y"',.

lible: ' ■' ; ■ ■ ■:..;-; ; .;'-. ' :,, '■' v ; ' ;THE.HOROWHENUA BLOCK.:M. :•' ■ In the matter of proceedings connected . with Horowhcnua Block 'No. 11, instituted by Mr. Baldwin," '■■ of. Palmorston North,- on bohalf of t'ho Natives,' a/motion ; was; now submitted praying for an order giving;leave ;to certain Natives -to withdraw a':writ; of certiorari which had: been issued by -thorn. This was with the view of removing the.matter into the Court of Appeal for hearing, on the ground that the proceedings were defective and that they had been abandoned prior to tho- scaling of -the order' lemoving; theni into the-Court of' Appeal. ;: -\ : ' Mr. Baldwin supported tlio motion, Mr. Myers represented .the' Chief Judgo and; othor'officers of ,th« Native' Land Court; and Mr. Monteath appeared for Native owners interested in tho block. "•■■'. ' : ' ;: , '

Thoir Honeurs dismissed th« motion, without piejndiomg tho light to proceed with 'another motion on'.tho same tainject already filed, '{lie appellant wra ordered to pay oosls of both parti-os, fnod At twenty guineas each, tfitlnn Uonty-oito dajs. MAGISTRATE'S COURT,

(Before Mr. W..G. Riddeli,.S.M.)

■ Two women, Cathorino Malken, alias' Kitty Schmidt, and Theresa' Russell, alias M'Art- 1 iney', nlias Stevens, wero charged with loitering and importuning in Forester's Lano on iulv 28. They pleaded, not auilty. and. on

Misapplication of Mr. P. Jackebn, wore remanded to August 2. Bail was allowed oacli in £G : aud a £5. , •), Four first-offending inebriates were conncted, and fined 55., in default 24 hours id gaol. -...;' '■•" .*. . ■"■;.' •"■'.;' civii/'lHj'si'n'ess. (Before Dr. A. M'Arthur, S.M.) UNDEFENDED. CASES.. Judgment for plaintiff ■'. by defaull' of defendant was given in the following undefended cases:—Lloyd Clay v. Charles. Wilson, £5 18s, Gd., costs £1 7s. 6d. j '■ Briscoe and Company, Ltd., v. James Ross Duggan, £137 15s. 2d., costs £9 25.; T. and W. Young v.■"Johanna..Moretti, £391Es. 6d., costs £2 145.; Dickersoii and Co. v. Andrew Begbio and Ha.rry Jones, £1 Os.lOd.i costs Bs.; Georgo Bertram Wright v.' John Sr Mitchell, £5, costs £1 Qs. David N, Isaacs' v;/Rita, Partridge, £3 13s. (3d., costi 10s.; H. Price and Co., Ltd., v. Mary Ann. James, £45, costs i£3 4s; 3d.; Kirkcalduf and. Stains, Ltd;, .y> G. Owcn,:;,£'l 12s. 6d.,v costs. 55.; the same' v. F.'-G.' : Lennox, £8 19s>\ 3d., costs £1 3s. fid.; tho samoj v. R. P.; Moore, £11 14s.'7d„ costS;£l lis.. 6d."'; . ' ;• JUDGMENT SUMMONSES. ' In .tho judgment summons case.of Ernest Frasor-Jones.'v. Walter Archer, a. debt of £1 10s., the debtor was ordered to pay. tho amount on or before.August 12, in default I three days' imprisonment. Bert Will Mutins was ordered to pay to John Henry or before. August i 12, tho sum of, £7 17s. 6d,, in default seven days. ' ' ; : :- ' '■> I '..' i ... ■.'. : In-tho case of C; W. Wycherloyand Sons v.'Reginald Wclsby,vthe debtor was'ordered to pay £20 2s. 3d., on or. before August ,12, in default twenty-one .days.,;,. ,_„ .... , ■.'• His Worship made no order, in each of tho following cases: —Andrews v arid Manthel- v. J. D. Kelly, £8 .lis.; 6d;;.'William ;Tumer■ v David Hannah, sometimes known as Jong Wong,.£27 145.; Harold James Edwin Dut-. ton v. Edward.Peter Breen,*£l4 4sX • ~•„■:

, DEFENDED CASES. ;;• j , "union subscription.;' ~': ; .The Wellington ' Society ot Painters' and-Decorators' Industrial Union of Workers sued David W. ; Campbell'for: £l 65., being a year's subscription to the union at Cd. a week. The defendant assorted'that he had resigned from membership of tho union; Judgment was given for the plaintiff union for, the amount .claimed,, with costs 6s-

■A BUILDING CLAIM, y .!'■'•■ . The case of Alexander: Bell and John Bell ■(Mr. Johnston) v;:G. H. Samplo (Mr. Blair), a claim for £197 10s. Bd., alleged to be duo on a building contract; which has been before the Court: for several weeks, was adyanced' a-further stage.: The case ,was still unconcluded when the Court rose for the day, and the hearing ;was adjourned until this morning. ■, '"■' ;•;.'.;■..,■".'.

(Before Mr. W. G.,;Riddell, S.M.) 0 : ;> PARTNER.OR ;. ' A claim for £16 14s. lid., for goods al* leged to have been sold and .delivered, jwaa preferred by Henry G. Clarke, indent merchant, of Wellington: (Mr.; Arnold),' against A. B. Tc-mperton and John Campbell, tradiiig as Temperton and ':■ Campbell, commission agents. Defendant Campbell, 'in ■ evidence, . stated that ho was not in,the partnership, and was not responsible for the, debt.* ''■'. An \ adjournment was; therefore, granted in the case against him, judgment by default being '■ \ given agajnst defendant Tempertoii for,'tb/ full amount, and posts 83s. 6d7 '';."" .';;>'.'. ■

: ;. ";^ Bartolo Riisso, (Mr. Jackson) claimed Jront Harry.;, Br^wn ;fi (^r a3 f suifr~of £15 7s;, inadp up as.follows:—Agistment arid feeding freight and of/goods')per scow Rona £7 10s, Defendant,clairaod.a hpn'suit, ;'on.i tho, grpuiiil*.(th'at;'.;tijo, action.,was brought 'against"'the I ''wrong' .person, !liis."wife' being niablo.;:.His, Worship, nonsuited ' ;plaintiff ,'wM costs £1.Is:, and stated that jjt was Brown.;!:;.'..'.' ,-.;;';;, RESERVED;! JTOGMENT..H,;. ,; • ;■' REHEARING'-REFUSED.-v';; V ; Reserved judgment' was; given by: his \Wop , ship, Mr. W. G. Riddel), S.M., in'the case of Jenness'.(Mr. Peacock)iv. J;:J<VK. Powell (Mr. Hindmarsh). Thiswas-an "application by. : defendant; .decided in favour; of plaintiff on July 1 j for a.lrchearing: on ! , the ground that-ho had discovered' fresh l evidence the trial, which lib could.not, by reasonable .'diligence,'■■.ha'v«'' ; obtained, beforo'-'ifc/.:;/Hia ■Worship 'held that ovid»nce: must- be sgiven. not only,of fresh evidence discovered.:-biit also evidence of stops taken by the.applicant, to securo all tho necessary evidence tCsuppoft .hiscase at tho first trial.' 'in the. present of the two further'.'Witnesses mencould'iipt have .beeii,called at tho first trial,;hut tho other..could.:'. Also, .as tho nature of the fresh evidence offered was,, in his Worship's opinion, purely corroborative, defendant's application.would be refused with' costs 'Jills'. '.■'.'■■ ', ■';■;,- .';'.' ..',';.;/,.:■''['"'■']..