LAW REPORTS

Dominion, Volume 4, Issue 962, 1 November 1910, Page 7

LAW REPORTS

COURT OF APPEAL.

.THE ALLARDICE ! WILL CASE. ■. .TER'iIS ? pF;APPEAL. -&'ifurtheivstep Was .taken yesterday in frae matter of-an. appeal to the Privy ■'■■-... .ICoancil•'. against the judgment of tho jCpurt. of ■ Appeal in. tho: Dannfivirkfl will jcase of;,Allardiqe.;v..\Allardice. -'.;Tlie estate concerned was that of the .-. later;Jaihes. Allardice,-. settler, of Danne- ,. jvirko, who, after being twice married, •■• lhapv left .:the whole 'of ..his property, to |nis : second..'family." Mr. Justice Chapv iman,. on hearing in 1909, an application , under the Family Protection-Act, 1908, on ■ '-.'.■ 'behalf .of - members .of the first family, declined to'order any redistribution of the.estate.' This, decision was appealed against, and the case on appeal was ■„. heard early in: July last by the Chief '.-,..'-., Justice. (Sir .Robert Stout), Mr. Justice .•'[Williams,.Mr. Justico Edwards, and Mr. .' Justice. Cooper,who in their judgment, - 1 : : .-' jdelivercd on July 27,. concurred in revers- /''-.'' Jing tho decision of. their colleague. V- '' The parties were; Elizabeth Allardice, : ; : ,.>■Eliza.Marion Hawkins, Albert William ■ ; : -. .tAllardice, Ada ..Elisabeth... Hail, Henry : ; ...George' Frederick Allardice, and. Helena .'• Laura Jane Haseldon (appellants), versus JAgnes Allardice, and Thomas Henry Gor- .'• : don: : Lloyd,(respondents),' executors and '■• -ftrustees .of* the will. of -.tho ■ late James '''■■'.• lAllardice..,, ~.■■;/...'.;.'.-..: '■,■•.".-';..' ■ "Counsel at; the hearing were; Mr. C.P. . ISkerrett, K.C., with him Mr. S.. A. ; Atikinsonj' for- the- appellants; Mr. D. M. f, ' jFindlay-and Mr. : F.B. Sharp for ,the ■-■:'■'■ lesp'ondents,, : ■'.''.., i "In. giving, judgment,-the Chief Justico '■.',... stated, that the testator - was married "-''';/':' twice;; His'' first-wife divorced "him for ..misconduct with his second wife.'Ho left ■'Eix, children, by- his first wife, and six " - jby v his second wife. Only "one of tho 'second family was, legitimate. ..He;, pro- , (tided for, ,:his . second wife, : and .'. for his i"'Eecond family, and left nothing to his .'first wifo and her-family. Thß first wifo ~ fed .£l3O e, year settled . on. her by the ; pivorce iCqnrt.- The^capital'value of the . ■/■ jprpperty left by tho, testator'"was vari- ,: (im'sly .estimated, but. it appeared- to the '. -{Chief-. Justice- that ..£20,000 would be a minimum,' though, perhaps, it could not. all-be at jinco realised.. .The.income was ■'.'flit':: present small, but- it .should • reach . ' ",l£soo -to iEOOO per annum". The second , wife, had some property .of .. her. .own. . Ihere were two -, sons. of tho first ' mar- .■.'■:, riage. . One; w - as. traihed as a,:saddler, ,".-."_: but of ~late\ had -been ■working as a . -Übqurer .'oa.Mu's! .mother's' 'place.' .. vThe [other also .haif'becn working as a labourer '.;. ; tod ■.occasionally;,training horses. There- ' were;four,.daugliters,';all married:—Mrs.' ••-' pawkins.'df pahiatna;.Mrs.•:Clark;,Mrs. Hill.'-.of Dannevirke; and' Mrs; xiaseldon, .■•,:. : of-'Wellington.:.: The -husbands' '.of'.'''three. '■'.. . of thesewere; not'well off..- ; No claim was" Bade:;in. respect of.'Mrs. Clark. -■'•- i - •The" Court directed that' the following jirovisioa should be "made:—Mrs. -Hasel- . don,'- '£60 •: a' . yea r; Mrs., Hall and Mrs:, . Hawkins,, £40 a . year, .all' in- equal ■.'■ monthly instalments. Part of the general , •". jirpperty 'should be : 'settled to secure, pay-; .. jment of these sums, which should- bo , . , • jsettled, on tho- daughters. named .without """Si' iPower., of. anticipation, '. and should': ; take ■.-. >>offeoti as from tho.. death. of the - testator. Leave. to appeal:.. was. provisionally .■■'•-;.■' granted on the usual .terms, but with the - ■ .added condition that.no refund from.the .'(allowances awarded .as,, afyjve.should, be ' . (asked.: "That is their means of :sup•D?ort," said' the. Chief. Justice, "and youjmight hang it up for'a-year, and,-.in.tho' Imeantime, they might':dio for tho want of ■means of. support." ~,.-, -': -.- ■ , When the matter .came' on yesterday, .-. jthp. .Bench was occupied ■by tho " Chief Uustice, Mr. Justice Cooper, and. Mr. .Unstice Chapman^..'..:,-•. :■,,..:, ■! '\ Final:leave to appeal,was asked-for by .ffllr. Findlay.- .., ..,,...-.. . ..Mr.-Atkinson objected.on tho " ground that no provisional,.order had yet been sealed. ■ ...:. -it".- '■;'. ; .-; ;.-.-. ;.-:•' "Mr.; findlay stated ...that■. d preliminary. ■ question had arisen as to the terms of the,: provisional order, a : copy; of which ' Jho had submitted to tho other side. "It stated; that tho.costs were to be paid to the appelhmts' .solicitor,, he: giving;can, , updertakipg.that. th'o costs-should be-re---funded if theappeal to: the Privy Coun- ,'■: cil snxoeeded,aii(lthat tho payments pro- ■ vided for-by itho. judgment of the -Court ■■-.: of,>4-Ppeal : should.bo made, in .the-.i'meaa-'- . tipo'. ivithouti any ■.condition' as to .a refund in case : tho decision was reversed. iHis clients had not yet begun, to make .the-payments named -in the, judgment, iheir yiow. being that security; ought to ■ 5»,-givon for'a refund'of,those payments af.'the judgment was reversed. He pro- . . jposed to argue' that, point. -.' - The Chief Justice:, You would argue, '"- Jiractically, that the: order'.of tho Court of Appeil ought-not to have been made. ' -'Mr. Findlay said, ho submitted- that the Court had.no power to impose the coh- ■ jdition as to payments, and) that- their Honours couloV now. grant final leave to ' inppeal without that, condition having been . jcomplied,with; -.. ■'■.-.-. "... - ■ The Chief Justice pointed out thatthe jorder■ was made when all the Judges were 'on the. bench, ■ whereas there wero now ■only, three, .His Honour also asked Mr; Findlay why he had'not apipued earlier to have the order varied. Mr. Findlay replied that the delay had been .caused by getting the "opinion of , .counsel as to the cdvisableness of proseCTtmgthe appeal. ' i.-The Chief Justice'said that if the Court .-., 5~ .done', something which couneel . *■' *hought wrong, tho Court could not alter - at,-but counsel could'ask the Privy Coun.al to. alter it. ■ .' Mr - Kndlay said tho Court could not ' SSi?i ft ve to n PP«al,' and'was' not entitl£d..to_impose tho condition.as to payment. The conditions'mentioned in tho .statute and in tho. rules had been compiled with. He asked tho Court to allow tnun to come before the Full Bench and imove to have'tho order varied.' ' The Chief Justice said that would mean ■ » delay of another five: months. ■ "■.■ .Mr Findlay said that the, matter was of the. greatest importance,' because it involved the right of a subject to appeal *°,V m f.. Majesty's CounciL He,-therefore, - uelt'that he ■ was .justified in asking for of arguing it before tho . .Full Bench. "■•-■ The"Chief Justico pointed out that ' - ■.. more than tho prescribed three months - had elapsed sinco July 4 27, when tho decision of the Court of Apj?eal was delivered. ■".".-. Mr -/indlay submitted that that did .U 10 '. affect tho matter because he-had Bodged the security, for costs on appeal : twithm, the period-named. ' The ■ Chief. Justice remarked that as ' (counsel-had not yet taken out tho order •he was inclined-to think it must bo . iregarded as He thought wmnsel would find this was tho effect of lEnglish cases. ; , Mr. Justice Cooper saiil counsel could havo eot down a. motion to vary tho order and it could have been heard a month ago..' Mr.' Findlay contended that his clients could not lose their right of appeal through not taking out' tho order within , Tiu3mi y condition in. tho M,or the rules was that security for *°ff S m ?l 1, - 6lodB( 4 vrithill three-months, , -. Mr. AtWn submitted that as there was .no motion for, variation of the order counsel for tho respondents should not bo hearoV on that matter. Ho asked for further time to consider the order as 'drafted by the other side. _The matter was adjourned until next 'fnday.

SUPREME COURT. COMPLICATED DEALINGS. IN SUBURBAN LAND, j 'A' case of importance to the legal profession and others, came before Mr. Juslice Chapman, siting in Banco yesterday, on appeal from a judgment of Mr. ("W. E. ■ Haseldcn; S.M. This was the fcase of Cyril William Tanner, solicitor and registered money-lender, v. Trances Jane Hare and Ernest G. K. Hare, her Sson. William Geo. Somerville, solicitor, rand son-in-law of Mrs. Hare, was also 'concerned in the case, but was not added «e'a defendant, ior the reason that he . b a bankrupt. The action was commenced \ in the tower Court by Tanner, who claimed b recover ,£IOO alleged by him to be due imder a memorandum of mortgage from She defendants and \W. 6. Somerville. According to the Magistrate's summary of Ihe facts, Somerville had borrowed money from Tanner, and was in arrear with. Both prinpipal_ and interest; ho was the J&ird mortgagee of a property at Kel-,

biii-iie, over which Tanner Tjeld a second •mortgage. Someryillo had sub-mortgaged ■Lis . third mortgago to a Mrs. Butler. Tanner sold the property through the Registrar, and bought it in for less than was owing to him, thus rendering 'Somervillo's, third mortgago valueless, and of course depriving Soinerville's mortgagee, Mrs. Butler, of, her-: security. Tanner and Somerville met, and arranged that Mrs. Hare and her son (who together hold a mortgage o'f wCI2OO over some land at Island Bay) should join with Somerville in purchasing the Kelburno property, subject to the first mortgage of ,£850,,.f0r Tho real value of the property'. 1 (in the opinion of -the Magistrate) was under .£BSO, but Somerville's apparent object was to. have something to represent-Mrs.. Butler's mortgage. It was also arranged that Tanner should advance .£IOO in cash to Somerville, and should receive as security a mortgage from the Hares over their-Island Bay mortgage of .£I2OO, and Somervillo should join in ; tho mortgage. It • was also agreed - between Tanner and Somerville that the security should'be for J332 and further advances, and "all moneys to become due by William G. Somerville to Tanner on any account whatever." Tanner did not see Mrs. Hare, ■ but stated that ho assumed.that Somerville was.'acting as her solicitor. The mortgage and tho agreement for purchase were prepared in Tanner's office, and were signed by Somerville and young Hare in tho presence of Mr. Tanner's clerk. Mrs.' Hare signed tho mortgage and agreement in Somerville's office.' The attestation clause recited ,that the mortgage was signed "by Frances Jane Hare, sho. being blind, the memorandum of mortgage having been first.. carefully read over and explained to her.", During the hearing of tho' case,. however, Mrs. Hare stated that she did not understand at. that, time, that'she was mortgaging her . property, or agreeing to buy any property. She ssid that she asked what 6ho was signing, and was told that it "was for her own benefit," and that Somerville told Iter that it was a matter of signing for .CIOO to secure a property at Ava" Street, Petono. that was to be sold. She also said she did not know that she was guaranteeing Soineryillo's debt. ..-.,.- v Defendant's counsel contended in tho Lower Court: (1) That under tho MoneyLenders' Act,. 1908, tho plaintiff could not recover, as the transaction was not ried out at' tho plaintiff's registered address, and at no' other address. (2)' Plaintiff, while admitting that he was a registered money-lender, did not prove that he had a'registered office. (3) That the transaction was harsh and unconscionable, and should be reopened under Section 3 of the Money-Lenders' Act, and that .tho'mortgage and agreement to purchaso should .beset aside ■ '.:.Tho 'magistrate,... in giving judgment, held that: the -mortgage, onwhich tho plaintiff sued was ! void: as being in contravention of tho Money-Lenders' Act, andthat tho action founded therein must fail. :It seemed to him—though he did not attribute 1 to tho plaintiff fraud, or sinister motive—that he had not realised his responsibility as a'solicitor of tho Supreme Court, or bis voluntarily undertaken liabilities .as. a money-lender. It had been; contended .. for tho plaintiff that inasmuch as the interest charged on the mortgago did not exceed 10 per cent.; the plaintiff .did. not enter into the transaction qua money-lender, but qua solicitor. His-Worship did not think this contention could be sustained. He gave judgment for defendant with costs. . > A counter-claim for, dfilOO was allowed t'p': stand over pending, the hearing of the appeal. : ■ ' ■■ ■ ' - ..In his appeal against tho magistrate's judgment;; Tanner was represented by Mr. W. H. .'D.'vßell, while Mr. D. M. ■Findlay appeared for the respondents. .'"■•• Mr. Bell submitted that although Tanner's-name .was on the register he was not a ; money-lender.under tho Money-' Lenders' Act. He did not charge 10 per leant.; he never made'advances on bills of-sale; he did not advertise as a moneylender; and ; he did not charge procuration fees. Ho was. a solicitor: who, had money to lend, The sale of the Kelburno property—and not "the loan of-ifilOO—was tho main transaction, and;so far from the property being worthless and burdensome, it had been valued by. a 1 member of a well-known .firm at .£I2OO in 1008 and at .£IOOO this year. Counsel also combated allegations-as to misrepresentation by Tanner concerning 'the'' property. There was not a,single complaint about tho transaction until tho counter-claim was filed a. year later. ,■■■■.. Mr. Findlay" submitted 'that the. language of the : Moneylenders' Act clearly and emphatically included a man in Tanner's position >■ as a ; moneylender. Tanner lent £W— it did not matter whether to the Hares or to Somerville—and having a property which ho could not realise and wanted to' get rid of, ho foisted this property upon- Mrs. Hare. Tho result of the transaction was to put '.£2OO into Tanner's' pocket in return for' lending the 4100. The property was burdensome, being unlet,' out of repair, mortgaged, and subject to certain requirements of the City • Corporation. Tho' transaction was harsh and unconscion- ; able. ■•'.■';■',,. His Honour reserved his decision. ■ PRINTING BUTTER-BOXES. WRONG SIZEi A dispute arising out of the purchase, of a machine for printing butter-boxes was before Mr. Justice Chapman in Banco yesterday on appeal from " the lower Court. ' The .appellants Were Ellis and' Burnard, Limited, timber merchants, Hamilton, • and the respondent was Norman Gibbs, of Harris Street, Wellington, liquidator of tie . Palmer Engineering Company, Ltd., Wellington. The appellants in January, 1908, ordered from the Palmer. Engineering Com-, pany a machine for printing brands on' butter-boxes, to be like one which they ' hnrl previously obtained from the samo firm. Tho machine which was supplied, however," had a : larger cylinder than the previous one, and therefore the brands which'were plates of brass to fit on the cylinder, could not be used with it, and fresh brands had to'bemade by thoappellants. The invoice price of the machine, which. Tas obtained. by the Palmer Company from an English firm, was .£l2l 14s. Tho appellants paid half that amount, leaving ,£6O 17s. in dispute. They were 6ued, and they then counter-claim-ed for the same amount for damage and breach of warranty. The magistrate (Mr. Haselden, S.M.) gave judgment for the plaintiff on tho claim.for .£OO 17s. and' costs,' and for defendants on the counter-: claim for £19 10s. -and costs. The defend-' ants then appealed to the Supreme Court. After hearing tho argument of Mr. W. H. D. Bell (for the appellant) and Mr, (F.-G. Dalziell (for the respondent), his 1 Honour reserved judgment.

MAGISTRATE'S COURT. (Before Mr. W! G. Riddcll, S.M.) CONFLICTING EVIDENCE. A RATHER INTERESTING CASE. . Frank M'Cann appeared on remand in connection with a charge of disorderly behaviour while allegedly drunk in Cuba Street on October 22. Accused had preciously pleailed not guilty to the charge, and the evidonce for the prosecution had been taken at a previous hearing. SubInspector Norwood appeared for the pro. secution, and Mr. P. Jackson for the defence. Accused, in tho'witness-box, stated tlint ho was a wharf labourer residing with his wife at 1 Oxford Street. On October 22 he'wns at. the races in company with a man named M'Leod, and arrived baek in town about 20 minutes to 7 o'clock. Ho and M'Leod walked up the town together, and subsequently went to the- Silver Grid for tea. Accused got a fish bono in his throat, and this caused him to run outside and vomit. He was arrested outside by a constable, taken to the.Manners Street station, and charged. While under arrest he asked for a doctor to bo called in, and as a result Dr. Henry camo and examined him. Ho denied tho charge of insobriety, and also denied a statement to tho effect that ho had waved his arms about in the street and called out. Ho had had no drink at all on October 22, and had in fact been an abstainer for .eight months. He admitted, however, that' ho was of an e.xcitablo nature. Mrs. M'Cann and two other witnesses were called to testify to accused's general sobriety and to his sober appcaranco on the night of tho arrest. Tho magistrate remarked that tho evidence was conflicting, and ho. was therefore not prepared to convict accused.. His Worship considered, however, that tho constable might have honestly ■ believed

that tho man was drunk, and even the doctor's certificate said that tho condition of accused .was consistent witli tuo symptoms of drink. Tho only, way in which constahles could docido ns to whether a man was drunk was by the actions, speech, .and appearance of that man. In this caso tho information would ho dismissed.

FOUND ON LICENSED PREMISES. John lieed, against whom there were 30 previous convictions, pleaded guilty to a charge of being found on licensed premises (the Princess Theatre Hotel) on a, Sunday. He also admitted refusing to give his nanio when requested and to, having given a false name and address. On each charge, he was fined 10s., with costs 75., in default 48 hours' imprisonment. - . For being found on licensed premises (the City Hotel) on a Sunday, Frank Drake was fined 205., with-costs 75., in default seven days' imprisonment. UNRULY FIREMAN. • William M'Ewan, a fireman on tho Corinthic, was charged with, on October 29 at Wellington, unlawfully assaulting John E. Pritchard, the second engineer of the steamer. Accused pleaded not guilty, but ■ the evidence was against him and he was fined 205., with tho alternative of seven days' 1 imprisonment. In the event of the vessel sailing before tho expiry of the default term an order was mado that accused be placed aboard. A second charge against M'Ewan, of using threatening behaviour, was withdrawn by-.leave of the Court. STONED A WINDOW, . An old man named David Douglas pleaded not guilty to a charge that on October 29 he wilfully damaged a pano of glass and a gate, valued at 255., the property of John Elliott," York Street. The evidence showed that accused had been ordered off tho premises and he then picked up stones and threw ono through a window and also damaged a gate., Accused's defence was that ho had been provoked by.Elliott and that tho stone that damaged tho window was not aimed at the window. A fine of 20s. was imposed and accused was ordered to make good the damage and to pay 6s. witness's • expenses, in default 6even days' imprisonment. ALLEGED VAGRANCY. Frank Voss, alias Johnston, was charged with being a rogue and vagabond in that ho was found without lawful.excuse on the premises in Majoribanks Street. He nleaded not guilty, and was remanded until to-day. ■'■■'. • -' MAINTENANCE CASES. Edgar Jcyoe was sentenced to 11 days' imprisonment for disobedienco of an order," in respect to tho support of an illegitimate child. Mr.' A. Dunn appeared for complainant. ~'■ Elizabeth Lack' (Mr. P. Jackson) was by consent granted summary separation from Josonli Maurice Lack, also custody of:four children and £1 per weok main-: tenance. ■•••'... Agnes Mercer was granted -, summary separation from Charles Mercer, by' consent of defendant, who paid Court costs, 4s. In tho case of Green v. Green, an application ■ for summary separation,, custody of child, maintenance, and costs, there was no' appearance - of, the parties, and the application was dismissed. • James Adams was charged that he did unlawfully desert his wife, and go to reside in Sydney. . He pleaded not guilty, and elected to be tried before a jury. The case was adjourned until November 2, .when defendant" will also bo charged 'with failing to maintain his wife and failing to maintain his son.i Mr. T. M. Wilford appeared for- defendant, and Mr. Blair for complainant. Margaret Small (Mr. P. Jackson) applied for summary separation from Joseph Small (Mr.-Gray), and sought. custody of three.'children, maintenance and costs. After hearing considerable - evidence, the magistrate said that he did,not consider that there was sufficient proof to warrant summary separation. Counsel for applicant asked for a maintenance order, but Mr. Gray • opposed maintenance being granted 'on the. present, application.. .Decision was, reserved, until November i. An adjournment until' November 14 was gra'nted in the caso in which Ada Curry w.as charged with,failing, tomaintain four children in an industrial-school. OTHER-CASES. Norman Campbell, charged with drunkenness, was stated by tho police to havo been convicted on 48 previous occasions, and' to have been discharged from Pakatoa in-. July last. Ho was fined 205., in default seven days' imprisonment. John M'Pliec, for. drunkonness, was fined 105.," in default, 48 hours' imprisonment. Oho first offender, who had been locked up since Saturday, was convicted ' and discharged,'and another, who did not appear, . was ordered to forfeit his bail of 10s. ■~■■■ For leaving a vehicle unattended for more than five minutes, Harry Ashworth,who did not appear, was fined 205.,, with costs .75., in default seven days' imprisonment. i ■■...'... Prohibition orders were granted against Jane MaitlanS " Harrop and William Scholefield. • - - '