LAW REPORTS.

Dominion, Volume 4, Issue 968, 8 November 1910, Page 3

LAW REPORTS.

COURT OF APPEAL. RIGHT TO GO TO PRIVY COUNCIL. THE ALLARDICE CASE. The question of appeal to the Privy Council in the case ot Allardice v. Allardice was again before the Court of Appeal yesterday. ' The late James Allardice, a pioneer settler of Dannevirke, after being twice married, died, leaving the whole of his property to hie second wife and her family, only one of whom was legitimate. Proceedings were taken by members of the first family, and the Court of Appeal, reversing a decision by Mr. Justice Chapman, awarded .£6O a year to Mrs. Haseldon, and ,£4O a year each to Mrs. Hall and Mrs. Hawkins, these being three members of the first family. Leave to appeal was provisionally granted on the usual terms, but with the added condition that no refund of the allowances awarded as above should be asked for. Mr. D. M. Findlay , (counsel for the executors of the will) in moving on October 31 for final leave to appeal, objected to this condition and the matter was adjourned until yesterday. , When the matter came on yesterday the Bench was again occupied by the Chief Justice, Mr. Justice Cooper, and ■Mr. Justice ChapnVan. Mr. F. B. Sharp '(in the absence of Mr. Findlay) appeared for the executors of the will (respondents in the Court of Appeal), and Mr. S. A. Atkinson and Mr. A. Fair for the members of the first -family (appellants). In asking for final leave to appeal, Mr. Sharp said the provisional had been sealed and served on the parties as required by the Court. The Court having, on the last occasion, been unwilling to hear counsel argue for the varying of the conditions of appeal, he now asked for an adjournment so that the question of final leave might he argued before a full Bench. He submitted that the matter for argument was largely new and was of great importance as it involved the right of the subject to appeal to the Kmg-in-Council. . The Chief Justice said the application was late. Leave to appeal was applied for on July 27, when judgment was given, and nothing more was' done in the matter until the end of three months, and then the first thing that was done was to lodge a motion for final leave to appeal. Even then no application to vary the previous order was lodged. Mr. Sharp: We .thought it would be better to treat the order as a nullity. The Chief Justice: But if you treated it as a nullity you should not have filed the , motion. You applied for final leave to appeal, and that was on the assumption that there existed provisional leave. You should have moved to have the order amended, and you should have done so before three months had expired. Yoiir first motion was on October 28, a day after the three months had expired. After further remarks, his Honour said that the respondents must either accept or not accept the order that lad been made. If they did not accept' it, they could go straight 'to , the Pfivy Council, and for unconditional leave to appeal, but the course that had been taken was one that was previously unknown. He questioned even whether they were entitled to leave to appeal;: at all. ' The words were "at.its discretion" (the Court's discretion), and cases'inight be cited to show that, there was no .appeal against discretion. Perhaps the Court had done wrong to grant provisional leave, but it had been granted, and counsel could not ask for final leave on the ground that provisional leave had been granted and not granted. Counsel was now asking to have the matter hung up for nine months before it could be dealt with in any way.

Mr. Sharp: said the parties would not be prejudiced in any way. The solicitor for the respondents had filed, an order. Mr. Justice. Cooper: Yes, but it is an order to pay the money into Court, and that won't do. These people can't eat money paid into Court. His Honour added that if proper steps had been taken by counsel for- the respondent, the case might have been at that date before the Privy Council. . Mr. Justice Cooper remarked that he was not sure that it could not: be , said that counsel for the respondents had tacitly assented to the order. The terms" of it were stated in Conrt, and he did not remember any. protest. It might nbw.be suggested that tho respondents wished for leave to appeal, and the Court was not bound to grant it at all, but did so on those terms. As the respondents, did not object, it might be taken that they agreed to the terms. The Chief Justice said he did not think the adjournment to the sitting of the Court-of Appeal next April could be granted, because to do so would be to set aside the rules laid down by the Privy Council for the avoidance of delay. After the opportunities, there had been at previous sittings it seemed absurd to think that any Court would grant a further adjournment. . - Mr. Justice Cooper pointed out a. con-, tradiction in terms—"You ask for final leave on the ground that the conditions have been complied with, and now you ask to be allowed not to comply with the conditions. Mr. Sharp then asked for an adjournment to enable him to table a motion for the varying of the order. He , mentioned that there would be ,£3OO of back payments to be made, if the order were adhered to. Mr. Atkinson asked to be heard on a motion <to strike out the. provisional order, on the ground that it had not been seaTEd in time. Mr. Sharp objechd, 'on the . ground that the motion, mentioned by Mr. Atkinson was not properly before the Court, as it was not' filed in time.

The Chief Justice said the Court was prepared to give Mr. Sharp until Wednesday to file a new notice, so that he could be heard as to the amending of the order. Whether he would succeed or not was another matter. This could only be done with the consent of the other side, and Mr. Sharp must waive his objection against their motion not being filed in time, so that both motions could be heard next Wednesday. , The respondents would have to pay five guineas costs for the present sitting. The case ' was accordingly adjourned until to-morrow. WAIWETU STREAM CASE. QUESTION OF COSTS. The decision of the Court of Appeal on a question of ooste connected with-its judgment in the Waiwotu dam case was delivered by Mr. Justice Cooper yesterday. Counsel for the appellants (Edith Dorothy Ellis and John E. Ellis), wljo hail partly succeeded in the appeal, had contended at a previous. sitting that his clients should not be compelled to pay for the printing of the case and certain' minor disbursements. The Court had made no order as to costs. Mr. Justice Cooper stated yesterday .that after consulting Mr. Justice Williams, who presided at the hearing, their Honours were all of the opinion that the judgment of the Court was perfected on the signing of the order, and that they had now no jurisdiction to vary it. The effect of this decision is that the appellants will have to pay the expenses-in question. Mr. C. B. Morison represented the appellants, and Mr. W. F. Ward the reepondent.