LAW REPORTS.

Dominion, Volume 3, Issue 880, 28 July 1910, Page 9

LAW REPORTS.

ZOO LIBEL CASE. MOTION FOR RE-TRIAL REFUSED. MAT GO TO PRIVY COUNCIL. Tho Court of Appeal delivered judgment yesterday, on the aplication of John' Norton, for a nerr trial of the libel action brought against him by Albert Ernest Louis Bottling, and decided by the Chief Justice and a jury in favour of Uio plaintiff. Tho libel -was contained in an action published in the paper called "New Zealand Truth," and hud reference to Bertling's actions as superintendent of the Zoo at Newtown. The Chief Justice (Sir Kobert StoutJ, ami Justices Williams, Edwards, and Chapman, were oil tho Bench yesterday, but the only judgment delivered in this case was that of Mr. Justice Chapman, who, however, slated 1 that' it had been accepted by iiis brother judges as the judgment of the Court. There were in this case (said his Honour) only two questions (hat had an iippeuranco of substantiality—ho would not say more than an appearance. The first objection was "that the Chief Justice misdirected the jury, in saying tliat the defendant, had pleaded jusJilicatiun. Ho (Mr. Justice Chapman) uid not iind that.this correctly represented what the Chief Justice, in fact, said. After' Hunting the passage'complained of, Mr.-Jus-tice Chapman said it contained the minimum of reference to the plea of justification, a term understood by lawyers to refer to a part of' the statement of defence, but not likely to be so understood by the jury, and it contained more pointed reference to what tho. jury certainly understood, namely, the whole conduct of tho case. The whole reference was to what was set. up, not by the pleading on paper,. witji which tho jury wero not troubled, but to the cross-exam-ination, the calling of certain witnesses l and tho uddress of counsel to the jury. All this went in the direction of broadly justifying the defumatery statements. As 'to the other question, namely, that the mutter complained of was fnir com--ment upon the conduct and qualifications of a person holding a public position, his Honour said that the notion of comment was usually associated with culm, • if severe, criticism, based on established facts. "What have we here," he asked, "that can be so described?" said his Houour, and then quoted portions of this' article. "It is complained now that thu Chief Justice has not rlFectually distinguished between matters of fact, and oomment, and has thus failed to put the defeucn of comment distinctly before tho jury. .1 must say that it would, in my opinion, be most difficult to separate tho comment wrapped up' in. these aliusivo sentences from the defamatory statements of fact." Ho doubted whether any of the matter ■ complained of whs comment ut oil- Ho was not sure that, if tho verdict had been, the other way, the plaintiff would not have some ground of complaint that, looking, at the terras of tho articles, the jury were allowed too much freedom, to treat them as comment. As ,the jury found on the issues put to them, thero wero no established facts, no "acknowledged or proved acts," upon which comment of this sort could bo based. They had, moreover, found that tho comment, if it could bo so called, .was not fair comment. Incidentally it had been objected that the jury were directed that before they could find tho allegations true, they must find that all the allegations wero true. That,however, was in that part of tho summing-up which related to tho second issue (i.e., as to the truth of the libel), which was treated by his .'Honour m distinct from tho question of- fair comment. In tho connection in which it was placed by the Chief Justice, it was a proper direction. In regard' to the matter of damages, lie did not think the caso was uno in which the jury were called upon to compute the damages by any rule of arithmetic. .The libel might have proved ruinous t» the plaintiff, and the jury were entitled to consider the whole spirit and intention with which the articles were written and published. .Mr. A. Dunn (for Norton) asked for leave to appeal to the Privy Council.. Mr. P. B. Sharp (for Bertling) asked tho Court to make it a condition of the appeal that tho papers should be sent to England within one month. Mr. Dunn said a period of three months was fixed by the rules of the Court. The security fixed by the Registrar would be lodged within tnat time, and the appeal would bo duly prosecuted Leave to appeal' was granted, the records of the case to be .transmitted to the Privy Council within.three months. It was explained that this was only a provisional order; the formality of converting it with a final order will require to bo effected, at a later sitting of tho Court. DANNEVIRKE ESTATE OF £20,000. COURT VARIES THE WILL. By a decision under the Family Protection' Act, 1908, the Court of Appeal ordered a partial redistribution of, the estate of the late James AUardice, settler, of Dannevirkp, who, after being twice married, had left the whole of his property to his second family. Mr. Justice Chapman, on hearing the case in .1909, declined to order ally redistribution of the estate, stating that although somo of the first family were in slender circumstances, the sons were able-bodied labourers, tho daughters had long been maintained by >their husbands, and none of tho family wero in a state of want. This decision was appealed against, and the case on. appeal was heard early in the present month by the Chief Justice (Sir Robert Stout), Jlr. Justice Williams, Mr. Justice Edwards, and Mr. Justice Cooper, who in their judgment yesterday concurred in reversing the decision of their colleague. The parties were Elizabeth Allardice, Eliza Marion Hawkins, Albert AVillihm AUardice, Ada Elizabeth. Hall, Henry George Frederick Allardice, and Helena Laura Jane Haseldon (appellants) versus Agnes Allardice and Thomas Henry Gordon Lloyd (respondents),. executors and trustees of the will of the late James AUardice.'' Counsel at tho hearing were:—Mr. C. P. Skerrett, K.C., with him Mr. S. A. Atkinson,' for the appellants; Mr. D. M. Findlay and Mr. I l '. B. Sharp for tho respondents. The Chief Justice, at the beginning of the judgment, which he delivered yesterday, summarised the rules laid down in various cases . by tho Supreme Court, stating, inter alia, "that the Act allows the Court to alter a testator's disposition of his property only so far as it is necessary to provide for the proper maintenance and support of 'wife, husband, or children,' where adequate provision has not been made for their proper maintenance aud support by the will of the testator." Dealing next, with the facts of the present case,, his Honour stated that the testator was married twice. His first wife divorccd him for misconduct with his secoml wife. He left six children by his first wife and six children by his sccond wife. Only one of the second family was legitimate. Ho provided for nis second wife and for his second family, and left nothing to his first wife aud her family. The firsl: wife had -£130 a year settled on her by the Divorce Court. The capital value of the property left by the testator was variously estimated, but it. appeared to the Chief Justice that ,£20,000 would bo a minimum, though, perhaps, it could not all be at once rcalstd. The income was at present'small, Init it should reach JBSOO to ilfiOO per annum. 'J'lie sccond wife had some'property of her own. There wero two sons of the first' marriage. One is 3(1 and tho other 32. One was tramhl as a saddler, htld was aided by his father iu starting a business for himself, but was not successful, and of late had been working as a labourer on his mother's place. The other Was l>ot. trained to any particular busimsy, ami got no aid from his father. He also had been working as a labourer and occasionally training horses. Thero were four daughters, all married—Airs. Hawkins, of Pahiatua; Sirs. Clark; Mrs. Hill, of Dannevirke; and Mrs. Haseldon, o!_ Wellington. The husbands of three o! these were not well off. No claim was made in respect of Mrs. Clark. His ITouour I hen proceeded to discuss tin- circumstances of the daughters and tlieir husbands, and to ask fh-e i~ou:

Has a daughter any claim on her deceased father's property if she is married? Ho did not think that the Court could hold 6he had not. In his opinion, the following provision should lie made: Mrs. Haseldon, .£f>o a. year, payable in equal monthly instalments during her life; Mrs. Hall and Mrs. Hawkins, XlO n year in equal monthly instalments. Part of tho general property should bo settltd to sceurc the payment of thrse slims,, which should be "settkd on tho daughters named without power of anticipation.- As to the. sons, if they had any push thoy should, considering their age, have ere this .done something for themselves, and to settlo money on them now might destroy their energy and weaken their desire to czert themselves. Th: ccsts of the appeal must be paid to the appellants by the trustee's out of tho estate,

Justices Williams, Edwards, and Cooper expressed ttair concurrence in separate judgments.

The Chief Justice said that the - provision for tho daughters under this decision would take effect as from the death of the testator. Details of tho ssttlement and its effect on the other parts of the will would Ik reserved for consideration in Chambers.

Mr. D. Jr. Findlay, who was present to receive judgment for the respondents, said he had been instructed to ask for kave to appeal. The Chief Justice said leave would be granted on the usual terms, but with tho added condition that no refund from the allowances, just awarded by the Court should be asked.. "That is their means of support," said his Hor.our, "and you might hang it up for a yeai, and, in the meantime, thsy might die for the want of means of support."

Mr. Findlay submitted that such a condition would prohibit the appeal to that extent. It would prevent the appellants gfctting the full benefit if they succeeded.

The Chief Justice replied that they could appi'iil against that condition, and the- Trivy Council could revers? it. They were, therefore, not prejudiced in any way. POWERS OF LOCAL BODIES. ERECTING BUILDINGS. Two interesting cases concerning tho powers of local bodies were heard find decided by the Court of Appeal yesterday afternoon. The Chief Justice (Sir Robert Stout) and Justices Williams, Edwards, Cooper, and Chapman were on tho bench. The first of the two cases was that of the Mnnukmi Water Supply Board v. tho Attorney-General. The board hfld applied in the Supreme Court, Auckland, for a declaratory order determining the validity or otherwise of its proposals to utilise part of its funds in building (1) public oificcs and accommodation for its staff; (2) a meeting room lor purpose of holding public meetings of its ratepayers and others; and fa) a dwellinghouse for the accommodation of its clerk or turncock. This motion hail come before Mr. Justice Edwards, and he had decided that the board could not lawfully expend Its funds for the purposes mentioned

Special leavo.to appeal was granted.. Mr. U. I'. Skene'*, K.C., with him Mr, G. M'Lean, appeared for. the appellant board, and Mr. J. W. Salmond (SolicitorGeneral) appeared for the AttorneyGeneral. , ■

Mr. Skerrett, In his argument, relied chiefly upon Section 2 of the Water Supply Act, 1308, which states that the Road Boards Act, 1908, is incorporated with the Water Supply . Act. Had the attention of Sir. Justice Edwards been drawn to this provision, counsel thought ho would have come to a different conclusion, .us Section 79 of tho Uoad Boards Act. gave the powers which the appellant beai'd desired to exercise. As an alternative, he contended that the powers in question were reasonably necessary to the performance of tho functions of the board.

Mr. Salmon contended that the board, in proposing to erect a hall with seating for 201)-people was going outsido its proper functions. It was absurd to suppose that a building of that characterwould be erected by a local body for tho sake of holding ratepayers' meetings onco a year. Tho hall was intended for social meetings of a general character, and tho board was trying to extend tho social advantages of the district. Counsel further argued that the board could not erect. dwelling-houses unless there were special reasons for doing so, and in this case there wero not such rensons, because there wero plenty of houses in tho neighbourhood. He also submitted that the common law doctrino as to what was reasonably incidental to the functions of a local body could not be superseded by tho incorporation of provisions of tho ltoad Boards Act in the Water Supply Act.

The Court intimated that it did not require to hear further argument, and their Honours then gave their decisions. The Chief Justico said it was perfectly apparent' that Section 70 o{. the Road Boards Act was not brought to the notice of the learned judge below. They had to look at the Water Supply Act, and at the provisions of the Uoad Boards Act incorporated with it. Tho Road- Boards Act contained many provisions which did not appear in the Water Supply Act, and which were necessary for the proper carrying out of the functions of a watel' supply board. About 30 sections were thus applicable, including Scction 79, which empowered tho boaid to provide public offices, either within or without its. district for the transaction of its business, and tho use of its officers. The Mniiulnm Wntcr Supply Boaid, therefore, had power to build offices and accommodation for its staff. The erection of a meeting room for public meetings of the ratepayers and others seemed to him to come within the very, words of the Statute. It would not be carrying out tho functions of the Wafer Bbaril to ercct a hall with seating for 5000 or COOO persons, but he saw nothing unreasonable in ;building a room that would seat 200 people. Very likely the meetings of the board would be held there, and thero would bo a place fenced ofl where the public could sit, and hear the discussions, so that they might have some control, over tho doings of their representatives. The question arose as to how far tho . Court i could interfere with' the carrying out of tho functions of a local body. In his opinion, the' Court had no power of supervision like' that exercised by the Local Government Board in London. The Court could not do more than see that what was proposed by a local body was within the powers conferred by the Legislature. In regard to the erection of a dwellinghouse for the clerk or turncock, if it was desirable that ho should live near the property of ,the board, it was within the powers of the board to provide a suitably .house, notwithstanding that there might be houses enough in the district. in his opinion, therefore, the board ought not to be restrained fromdoing any of the three things mentioned in the originating summons.'' The board should, however, remember that it was only a water, supply board, and should keep within the duties of such a body.

The other judges concurred in this decision, and gave .reasons, but without committing themselves to sanction of the specific proposals of the board.

Tho Chief Justice said the appeal would be allowed, : and an order would be made declaring that the board had power to build offices for the transaction of its business, and also to build a place of meeting for the ratepayers, and,' if necessary, for the discharge of its duties, or the protection'of such buildings, or the management ol' water supply, the board: h'ad power atao to provide house accommodation for officers.

AMALGAMATION OF BOROUGHS., A QUESTION OF AREA. The other loc.'tf government case, which tho Appeal Court dccidcrl yesterday was concerned with tho interpretation of certain clauses of the Municipal Corporations Act. • It is provided in section ,'i, sub-section (o), of Hint statute that u*h*»n a new, borough is constituted its arm shall bo such that no two points within it shall be more than fix miles apart.' The borough of .North-Mast _ Vulley hns carried n poll to-merge itself-in the city of Duncdin, and it has been pointed out that tho.muncipal area thus formed will have a length, in one direction, of saven and three-quarter miles. Tho-question, therefore, has arisen, whether this win be allowed, or whether it may bo held that Motion 8, Rul)M«!io» '«). does jmi apply to the amalgamation of existing boroughs, but only to boroughs formed out of areas not previously under muni, cipal government. The matter cr.me before tho Supreme Court nt Duuedia in thw form of ua

originating summons, and was moved for argument to tho Appeal Court. 3ur. W. Downio Stewart, of Dunedin, represented the borough of North-East Valley (appellant), and Mr. J. W. almond, Solicitor-General, appeared for the Attorney-General (respondent). After hearing argument, the Chief Justice said that, in his opinion, section 120 (amalgamation of boroughs) did not, in a sense, provide for tho creation of a new borough, but for tho marriage of existing boroughs, the two becoming one by marriage, ap it were. In tho elauscs of the Act, wherever sub-section (c) of scction 3 was to be applied, specific reference was made to it, but there was no such reference in section 10. If the area was to be limited, this would have been indicated, cither in express words, or by reference to section 3.

Justices Williams, Edwards, find Chapman agreed with this decision. Mr. Justice Cooper said lie was not so confident ;>s the other Judges, but his doubts were not so strong as to justify him in dissenting from their judgments. T'tie question asked in the originatin" summons (as the legality of the proposed amalgamation) was, therefore, answered by the Court in the affirmative.

FULL COURT.

STAMP DUTY. THE DEANS ESTATE. The Full Court'yesterday gave its decision in the Stamp Duty ease connected with tho llomebusti Estate, Canterbury. The Chief Justice (Sir Robert Stout), and Justice Williams, Edwards, Cooper, and Clißpman were on the Bench. The facts of the case were that John Deans, a well-known Canterbury settler, died intestate, leaving a large amount of property. The Supreme Court made an order for partial distribution of the estate, and, in accordance with this order, the Homebiish Estate was divided into four - blocks. Marion Deans, James Deans, Robert George Deans, and John Deans, tho four elder children of tho deceased, each received one of these blocks; but the widow, Catherine Edith Deans, retained a one-third share in each of the blocks. Tho children subsequently agreed to purchase her shares, but instead of paying cash they granted her encumbrances over the land to secure her an annuity -equivalent to the capital value of her shares as ascertained from the tables of tho A.M.P. Society. On this transaction the Deputy Commissioner of Stamps assessed the duty at i£lls IDs., as duty on a conveyance of sale, and this was paid, but subsequently the commissioner decided that the duty should be assessed as upon a deed of gift. The snm of .£847 ss. 7d. was thereforo claimed. Objection was raised, and the matter was referred to the Minister in charge of the Stamp Department, but acceded to a request to state a case for the Court. . .

The case was argued last-week, Mr. T. W. Stringer, Jv.C., and Mr. P. U-vf representing the appellants, while Mr. J. W. Salmond. Solicitor-General, appeared for the respondent Department. The Chief Justice, in his judgment yesterday, quoted Section 92 of the- Stamp Duties Act, 1908, which, he stated, applied exactly to the transactions in the All annuity given by one blood relation to another for.tho transfer of land was not, however valuable it might be in f fact, a "valuable consideration, 0 and a transfer or deed, where that was the consideration, was a deed of gift. H« was of opinion that the appeal must be dismissed with £10 10s. costs. The question whether the Minister must return the amount paid under the first assessment was not before the Court, but ho presumed the Minister would not claim duty under both heads. It surely could not be a conveyance and not a conveyance on sale at the same time?

Mr. Justice Williams in a separato judgment said ho was of tho same opinion. The duty on conveyance of sale should he refunded by the Minister. The other judges concurred in the decision, and judgment was entered accordingly.

•MAGISTRATE'S COURT.' (Before Mr. W. G.. liid<]oll, S.M.) THE SALESMAN AND THE SPOONS. Francis Lear Mackintosh was charged with tho theft of (1) twenty-two apostlo spoons, valued at the property of Nathaniel William Thomas! (2) a quantity of cutlery, valued at .£l, also tho property of Nathaniel William Thomas. The accused pleaded guilty. Chief Detective Broberg stated that tho theft took place about November 13 last, from the warehouse of Messrs. Scoullar and Chisholm, during the period that Mackintosh was employed as a salesman. Eighteen spoons had been pawned by him, the others being recovered. Accused subsequently left for Pelorus Sound, and there most of the articles mentioned in the second information were found in his possession. Mackintosh had been twelve months in tho Dominion, and when arrowed was employed with a saddler at Pelorus Sound, receiving 7s. 6d. weekly together with his board. The accused was convicted and ordered to come up for sentence whfen called upon, on condition that 'he paid (by instalments of ss. weekly) tho value of the goods which had not been recovered, and - which were valued at <£fl 10s. INSOBRIETY.. One first offending inebriate was convicted- and fined 55., with the option of 21 hours' imprisonment..