COURT OF APPEAL.

Dominion, Volume 4, Issue 1123, 10 May 1911, Page 8

COURT OF APPEAL.

DEATH DUTY ON ESTATE OF £91,000 TRUSTEES' REWARD TAXABLE. DEEMED A LEGACY. An important point at issue between tho trustees of the will of the late Elizabeth Knox, of Auckland, and the Commissioner of Stamps was settled by tho Court of Appeal yesterday. The caso arose out of a provision in the will of the deceased to the effect that her trustees should (in remuneration for their services) be entitled to charge a commission of 3 per cent. on. tho total value of the estate at her death. Half of tho commission was to be paid on proving the will, and tho balaneo by half-yearly instalments. She died on October 19, 190S, and the filial balance of the real and personal estate was certified (under the Death D'uties Act, 190S) to be valued at ,£91,353 9s. 2d. The death duty on the estate was assessed by tho DeputyConunissioner of Stamps, Auckland, at .£llO2 16s. Fart of, this sum tho trustees declined to pay, their ground for refusal being that a sum of .£2749 Is. —the commission which they are entitled to charge under the will—had bsen wrongly included in the final balance of the personal estate. They held that it should have been deducted from the final balanco as a

"testamentary expense," as it was within tho meaning of that term as used iv. Section 3, Subsection 3, o£ tlie Death Duties Act, 1903.

Subsequently the trustees had the assessment referred to tho 'Minister for Stamps for decision, and ho disallowed their claim. Being dissatisfied with tho decision of the Minister, they had asked him •to state a caso for tho opinion of tho Court. The question for tho Court was:

"Is the v sum of .£2749 •}=., given ,to the appellants by the will, deductible as a testamentary expense from the fiual balance upon, which the assessment was made?"

The trrtstees (Thomas Butldle, Archibald Clements,, and Frank D. Clayton) were represented at the hearing by Mr. H. I'. Richmond, while Mr. J. W. Salmond, Solicitor-General, appeared for the Commissioner of Stamp;-. The judgment of tho Court—consisting of Mr. Justice AVilliams, Mr. Justice Edwards, Mr. Justice Denniston, and Mr. Justice Sim—was delivered by Mr. Justice AVilliams, who stated, apart from the provision of Suction 20 of the Administration Acts, of 1879 and IDOS (empowering the Court to order the payment of commission to trustees), there could 1)9 no question that tills allowance of commission to the trustees was a legacy. If tho trustees or either of them had attested the will, the fact of his having attested it would prevent him receiving anv benefit under' it. It was impossible to "say that there was anything in this section which made a p;ft by will to executors for, their pains and trouble anything else than a legacy. A commission ordered by the Court was remuneration for work actually done, and the quantum allotted was determined by the time and trouble given and the responsibility incurred. The amount of a ixjft by a testator in bis will did not bear any necessary relation to the work which ,the executor misht have to do or to responsibility which he might have to incur. It was a gift in consideration of the executor undortakmir tho office, and not a payment for the work actually done in carrying out the duties of the office. It misht be far larger than is necessary to remunerate the executor lot his labours, or it might bo absolutely insufficient to remunerate him. In no case had it been held, nor could it be hold, that a legacy was a testamentary expense. Furthermore tho gift in the present ease was to tho appellants as trustees. The duties imposed upon them by the wilt were those of trustees, as well as executors. Their duties as trustees continued after their duties as executors were completed. Even if a gift to executors was a testamentary expense, a gift to trustees was not, and tho Court could not satisfactorily say what part of the gift they were to receive as executors, and what part as trustees. The Bench was of opinion, therefore, that the gift was not a testamentary expense, and that the appeaf must be dismissed. The appellants must pav their own costs of the appeal and tho "costs of the Crown out of their own moneys, and not: out of the general estate of the testatrix. Costs on the middle scale. CONSTRUCTION OF A MINING STATUTE. A FARMER'S WATER-RACE. Judgment in a case relating to water rights and mining legislation was • delivered by the Court of Appeal yesterday. The parties were Harry M. Skeet and John Dillon (appellants) v. Joseph C. Nicholls (respondent), and the appeal was against tho granting by Mr. Justice Williams of a prohibition restraining the Commissioner of Crown lands in Southland from issuing a licensc for a water-race under the Mining' Act,. 130S, to billon.

At the hearing of the appeal the Solicitor-General (Mr. J. W. Salmond), with him Mr. W. F. Inder, appeared for Skeet and Dillon, the. appellants, and Mr. Ilosliing, K.C., with him Mr. Buddie, for the respondent Nicholls.

The Chief Justice, in his judgment, said the appeal raised an interesting question of tho construction of a mining statute. Tho claim of the appellants was that under a provision of our mining statute a person who was not mining, and who did not reside in a mining district, but was a farmer, could obtain a license to take water from' a stream for irrigation purposes, and this under a mining statute (the Mining Act, 1903, Section G), His Honour held that tho words in Section IGG at tho best, taking the most favourable consideration possible in favour of the appellants, were ambiguous. They were not compelling, and it would be a dangerous thing if the Court were to assume that they were meant to do what the appellants contend they did. In his opinion, therefore, tho appeal should ho dismissed with costs. Mr. Justice Denniston read a concurring judgment. Mr. Justice Edwards also agreed that tho appeal should be dismissed, but preferred to base his decision on the Mining Act alone withont_referer.ee to previous legislation.. Tho judgment of Mr. Justice Cooper, agreeing with that of Mr. Justice Edwards, was read by Mr. Justice Sim. AUCKLAND TRAM FATALITY. WHAT THE JURY MEANT. The Court of Appeal delivered judgment yesterday in the ease of the King v. William Ernest Dawc, which arose out of a tramway fatality at Auckland. Dawc was a motorman, and his car hail collided with car No. TO. The impact was not severe, but had forced ear 70 slightly ahead, and, at the moment of the collision, Thomas Albert Thompson' was in the act of attempting to couple cars 71 ami 70. The impact hart crushed nis head between tho two butters, causing instantaneous death. Tiie verdict or the jury at tho Supreme Court trial had been: "We consider the accused guilty of neglect of duly, caused by extenuating circumstances, but not gross neglect, and strongly rccommend him to mercy." In answer to a question put by Sir. Justice Cooper, the foreman of the jury had stated that they could not unanimously formulate the extenuating circumstances, although they all agreed that such extenuating circumstances were present. The question for the consideration of tho Court were: (1) Is the verdict of the jury a verdict of "guilty with a recommendation to mercy"? (2) Is it a verdict of "not guilty"? (!1) Is it too inconclusive to be tho one or tho other? At the hearing in the Court of Appeal ilr. ,1. ii. Herd appeared for Dawe, ami Mr. .1. \X. Salmond, Solicitor-General, for the Crown. The Chief Justicc (Sir Robert Stout) in his judgment said that to ascertain the liability of the accused, recourse must, lie had to tho Crimes Act, MINI. Seclimi 171 laid down the duly of persons in charge of things animate or inaminato, which in I he absence of preeaulion might endanger human lile. The .-.ectirm wa« as follows:—"Everyone who lia> in his charge or under his control anything ■whatever, whether animate or inanimate,

or who erects, make?, or maintains anything whatever which, in the absenco of precaution or care, may endanger human life is under a legal duty to lake reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to perform such duty." By this section the Court was bound. After quoting numerous authorities, his Honour concluded: "It appears to me that the words 'gross negligence' did not, when used by the jury, mean that tho driver had simply been guilty of an error of judgment or that the affair was an accident, but they found him guilty of neglect. .As I read it his action was a culpable neglect of his duty. .As I have printed out the section of our Act does not introduce the word gross, and as I have also pointed out many of the English authorities show that in lea,ins the case to the jury many judges liqvo not used the word 'gross.' As I understand from the Judge who gave tho direction to the jury in this enso ho pointed out to tiiom that tho prisoner would not be guilty if,-it was a mere accident. There must be neglect of duty and I am of opinion that their verdict, l>v finding that ho was guilty of neglect of duty, .by their recommendation to mercy, by their mention of extenuating circumstances, meant that lie was guilty, but that in their opinion it was not a ease in which any severe punishment should be inflicted. Looking at' the evidence I concur that this is not a case in which a severo punishment should be inflicted, hut tho evidence was sufficient, in my opinion, to warrant the jury in coming to tho decision that they did in the case and I am of opinion that their finding does amount to a verdict of guilty." Justices Denniston, Edwards, and Chapman and Cooper (absent) concurred in separate judgments. Mr. Justice Williams also concurred. Tho convictioh was, therefore, affirmed. LAND COMPULSORILY TAKEN. FARMER AND LOCAL BODY. Judgment was given yesterday on tho appeal of a South Island farmer relating to a claim for compensation iu respect of land taken under tho Public Works Act. The parties worn Edward Butler Harrison, of Waihao Downs, near Waimate, farmer, appellant, and tlie Waimato County Council, respondents. At the hearing, .Mi. H. 1). Bell, K.C., with him Mr. W. E. Kinnerney, of Timaru, appeared for the appellant, and Mr. T. F. ilarlin, with him Mr. William Hamilton, was for the respondents. The original case came before Mr. Justice Sim, at Timaru, in October last, in the form of a motion by tho County Council to set aside a claim for ,£2135 18s. G(I„ made by Harrison for compensation. On that occasion the Court held that an agreement in question between the parties was valid, and issued ail injunction restraining Harrison from proceeding with his claim. Harrison, in bringing tho casr to tho Court of Appeal, . submitted that tho agreement was invalid, as neither tho statutory requisites (under tho Counties Act) to its validity, nor the provisions of tho Statute of Frauds were complied with, and that the document was not ratified by the council so as to be binding on the appellant, or the respondents. This alleged agreement stipulated lor the payment of X7OO as compensation in full, but Harrison urged that, owing to tho course taken by the road, the loss to him in different ways had been much greater.

The Chief Justice, at tho outset of his judgment, remarked that most of the objections takei, to tho contract vein never raised in the Court below. This wap unfortunately not unique in the history of appeals in tho Court of Appsal. In many cases points were raised in the Court of Appeal that wpro never mentioned in. the.Supreme Court. Much expense and Increased litigation were-caused by this practice, and it might be wiso to punish with a refusal of the costs of appeal cases in which an appellant was successful in points never taken in the Court below.

In his opinion, this appeal could be settled on this simple point, viz., that, even assuming the agreement.was a bindin" contract, it was clear that the respondents could not fulfil, and had net fulfilled, the e-'v'itions en which it was ncreetl to accent the .S7OO compensation. Clause 1, which : meant lin . his opinion the granting of a permanent water supply. could not be carried out. The concent nt tho Minister for Public Works was. in any event,\renuired for a water supply, and this was not obtained before repudiation of the contract. This, therefore, was a ca«o in which the terms on which the contract was based could not. t.e fulfilled. It was contended that the contract was . divisible and that Hie Court could enforco part of tli« agreement. and for the non-performance of the other part damages could be given. In his opinion, this contract was indivisible. and therefore the contract was invalid. The annual should h« allowed. Mr. Justico Williams. Mr. .Tu«tioe Edwards. and Mr. Justire Chapman concurred in separate judgments. THE HOROWHENUA SLOCK. APPELLATE COURT. UPHELD. The judgment of the Court of Appeal in the Horotrhenua Block case _ was delivered yesterday by Mr. Justice Williams. In this appeal, which _ affected tho ownership of liorowhcnua No. 11, a block of Native land near Levin, which has been the subject ot protracted litigation, counsel for Nirihana Kingi Puihi and other Natives having a like interest with •him, moved that the judgment given by the Chief Justice (Sir Robert Stout) on August 19, 1910, be set aside as erroneous in point of law, and that the order of the Nativo Appellate. Court, dated September 20, 1838, and all subsequent orders, and titles affecting the land, be quashed. Reference to the previous history of the case shows that in 1898 tho Native Appellate Court, in purporting to act under Section -i of the Horowltenua Block Act, 18%, made an order regarding Division 11, and from that order omitted the names of certain Natives that it was contended ought to have been inserted therein. The names of the persons whoso exclusion was complained of, or their ancestnrs, were in tno original list of 113 persons appearing in Schedule G of the liorowhcnua Block' Act, and the caso was brought 'into the Supremo Court on an application for a certiorari to quash the order of the Appellate Court, on the ground that that tribunal, in excluding the names, referred to, had exceeded its jurisdiction. The Chief Justice dismissed this application, and his decision was appealed against. The appeal was heard by Mr. Justico Williams (presiding), Mr. Justice Chapman, and Mr. Justice Sim. The appellants were represented by Mr. P. E. Baldwin, of Palmerston North; Mr. J. W. Salmond, Solicitor-General, appeared for the Chief Judge of tho Native Appellate Court; and other Natives interested were represented by Mr. A. A. S. Menteath and Mr. M. Luqkie.

In delivering the judgment ot' the Court, Mr. Justice Williams said their Honours did not think it necessary to call upon the Solicitor-General. They were satisfied that the Native Appellate Court had jurisdiction under the Horowhenua Block Act, 189G, to inquire and determine whether any of the U3 per-. soiif> who were registered under the Act of 1567 as interested in the Horowhenua Block should he excluded from any interest in Division 11 of that block. They were of opinion that there was a clear and suflieient expression of intention on the part of the Legislature in the Act of 189G to make a fresh departure, and to give the Native Appellate Court jurisdiction to inquire and determine in respect of all the divisions. They thought also that the power of the Supreme Court to issue a writ of .certiorari to the Native Appellate Court was taken away by Section iiO of the Native Land Amendment Act, 1311"). The Native Appellate Court was constituted by' the Native Land Court Act, and there was no doubt that the jurisdiction given thereby was appellate only, and that the Court by that Act had no original jurisdiction. The irorowheuua Block Act, ISOli. gave the Native Appellate Court original jurisdiction in a particular case. Section 18 of lhat. Act nrovided that no right of anpeal should lie from any decision of the Court under this provision of the Act. The Legislature, therefore, contemplated lhat any decision of tlie Native Appellate Court: should be final. The manifest intention of the Legislature was to give the Native Appellate Ccuit .-upromo jurisdiction to determine oue-tioii- under the llnrnwheuua lilac!; Act, ISM, and, where dial: Court, had supreme jurisdiction, a writ of certiorari could not issue. The appeal should therefore be dismissed.

Cost s on the middle scale wore allowed tho Solicitor-General. Mr. Baldwin formally asked for leave to appeal to the Privy Council. Leave was granted on tho usual terms. EDUCATION BOARD'S POWERS. CASE ADJOURNED. An interesting case concerning the powers of Education Boards came before the Court, of Appeal yesterday, the Chief Justice (Sir K. Stout!, Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Sim being on the bench. Tho New Zealand Educational Institute appealed against a decision of Mr. Justice Chapman, which had held that an Education Board had power to exclude children of school ago from attending a district high school. Mr. 11. D. Bell, K.C., with him Mr. G. H. Fell, -appeared for the appellants, and Mr. C. C. Hutton for the respondents, the Wanganni Education Board. Their Honours adjourned the ease until next sessions of tho Court of Appeal, in order that tho Solicitor-General might bo joined as a party. A DELAYED DIVORCE CASE. DECREE GRANTED. The Chief Justice (Sir R. Stout) announced yesterday in the Court of Appeal that a decree nisi had been granted in the case of Genet v. Genet. This was a caso iu which Georgina Genet, shopkeeper, of Christchurch, ■ petitioned for dissolution of her marriage with Alfred Genet, labourer, of Lyttelton, on the ground of desertion. A separation was granted in 1903, and Mr. Justice Denniston, in stating a case for tho Court of Appeal, said that tho desertion was fully proved, unless the position was affected by the existence, of a protection only. In view of the conflict of judicial opinion on a point of importance in England and New Zealand, his Honour thought tho question should be submitted to tho highest Court iu the Dominion. It is understood that the delay in the case after it reached the Court of Appeal was chiefly duo to waiting for an English decision in a similar case. DUTIES ON SAMPLE GOODS, "FAIR MARKET VALUE." A caso involving the interpretation of the words, "fair market value," in the law relating to Customs duties reached tho Court of Appeal (Mr. Justice Denniston, Mr. Justice Edwards, Mr. .Tustico Chapman, and Mr. Justice Sim) yesterday. 1 The parties were Arthur . John George and William Richard Doughty, both of Wellington, merchants, trading as George and Doughty (appellants) and the King (respondent). The appeal was against a judgment delivered by the Chief Justice, on October 8, 1910, and tho question at issue, as stated by him, was whether tho Customs Department had rightly assessed the duty payable on some goods imported into tho Dominion. Tho goods were termed sample goods—one of each kind of a great number of drapery goods "were imported.as a sample of tho stock on sale in the wholesale warehouses in London. The market value of tho goods in London was not disputed, and tho assessment hero had been made on such market value as was provided for in Section 5S of the Customs Law Act, 1908. 'File suppliants had, however, been allowed .certain discounts on such market values, varying from 25 to 30 per (">nt., and they claimed that this discount should be allowed and tlie market value to the value after allowing these discounts. His Honour, in tho judgment now appealed against, took the opposite view.

After hearing Mr. C. B. Morison, for the appellants. the Court intimated that Mr. TI. ( D. Bell, K.C., for the respondent, would be heard on the resumption of the Court at 10.30 this morning.