LAW REPORTS.

Dominion, Volume 4, Issue 1222, 2 September 1911, Page 3

LAW REPORTS.

SUPREAIE COURT. THE DECISION OF A MAGISTRATE. REVERSED BY Mlf. JUSTICE SIM. Judgment was delivered by Mi~. Justice Sim vesterdav on ilie appeal against the decision of II r. W. G. Riddell, S.M., in the case of J.lunk and l.'ringle, Ltd., motor-ear impartcrs, of Palmcrston North, assignees of the Scott .Motor and Cycle Company, v. W. 11. P. Barber, dyer, of 'Wellington. The original claim had been for .E.'il 1?. for money due and payable by defenduui la tlie, plaint ills as assignees of a debt of .£3l 1?., duo by the defendant lo (lie Scott Motor and Cycle Company. As a set-off, fhe defendant- slated that, while his motor-car was in pc.-.-e.-sion oi the ■j'calt -Motor and Cyc!») Company. ior repairs, if had been seriously damaged, and extensive repairs had thereby been rendered necessary. For the=o repairs defendant had paid two other companies turns totalling .£'2o, and, in addition thereto, claimed t'hat his car had been depreciated by approximately -100. It had been agreed between defendant and the. Scott Motor and Cycle Company that the latter should make no claim for any account owing, and defendant therefore claimed to set off his loss by damage and costs of repair, against' any claim by the assignees of the Scott Motor ami Cycle Coin pany. On March 7. 1011, the -magistrate had decided that the defendant (appellant in the present, case) could not' set off _ hi? claim for unliquidated damages arising out of an alleged tort on the part of the Scott Company against Dunk and Prinze's claim as the assignee of the debt. Judgment had been given for Dunk and I.'ringle on the claim for .£2l 12s. and cost's ,£7 75.. and, for Dunk and Pringlc on the counter-claim for .£2 2s. It was from the above decision that lln defendant (Darter) appealed. The appeal was on the ground that the decision was erroneous in point of law, as the defendant was entitled under the Magistrate's Conn Act to sct-olf (by way of counterclaim or otherwise to the plaintiff company's claim) a claim which he had against the Scott Motor and Cycle Company. At the hearing Mr. A. Fair (Chapman, Skorrctt, Wylio, awl Tripp) appeared foi applicant (Mr. \V. IT. P. Barber,) and Mr, 11. F. von Ilaast for respondent (Dunk and Pringle, Lid.). The learned Judge upheld the appeal with costs and .£5 ss. disbursements. Mr. You Ilaast asked if leave would be granted to take the case ta the Court of Appeal, and iiis Honour consented. NOT ENTITLED TO RESCIND. Mr. Justice: Sim yesterday delivered decision in the ease concerning a contract dated June 9, 1911, for the sale and purchase of the freehold of the premises known as the Maiukau Hotel. This contract was between Thomas Bevan, jun.. settler, of Manakau and Evio Kennedy, widow, of Wellington. The latter," in an originating summons, asked for a declaration that she was entitled tc rescind the contract, and was consequently entitled to recover her deposit of .£'so. The agrre;l statement of facts set out that the hotel had been subject to a least to Edwin Samuel Rainbow, for the ten years, this lease expiring on March' 5, 1811. In Slay. ISO", the lease had ibeen transferred to Georga Wilson Moorehouse, who was still in possession as licence, On November 4, 1(110, Moorehouse had been convicted of permitting drunkenness on the premises, and the license had been endorsed. The plaintiff had agreed to purchase the frrohold for .£2OOO subject to the lease, and,, upon the execution, a deposit of .£SO had Jjeen made. ,On oi about January 23. 1911, plaintilr learned that the license had been endorsed, and, in consequence, had refused to complete the purchase. Slio had also demanded tlio return of the deposit of ,£SO, on the grounds that at the time of paying it slit had not been awaro of the endorsement, no representation on that score bavin; been niado by defendant. At the sam< time the facl'thnt the endorsement exist, ed had not been intentionally withhclt: by Hie defendant. The price of purchase had been fixed at -C.'tnOO if "Continuance" were carried at the next election and to .£2OOO if "Continuance", were uot carried. The question for the Court to decide was whether plaintiff (on account of the endorsement and of the non-disclosure thereof) was entitled to rcscind the agreement, and fo recover her eleposit. At the hearing Mr. T. Young appeared for Mrs. Kennedy and Mr. C. B. Morisoii lor Thomas Bevan, jun. In giving his decision yesterday, hi? Honour said that the license though endorsed was still a valid license, and. as the indorsement would lapse after twe years, it could not be treated as atfectinc the property to bo disposed of. Plaintifl was not entitled to rescind the contract or recover the deposit. Judgment would therefore, be for the defendant, with M is. cosis. RE LAND TRANSFER ACT, Reserved judgment was also delivered in case of John Dutliie, of Wellington, v, the District Land Registrar, Wellington, asking for a declaration re the Land Transfer Act'. 190 S. The applicant is the registered proprietor of Lots -12 and on a plan of subdivision deposited in the Lands Registry Olficc Wellington, a' No. 150. He applieel to the District Land Registrar to rectify the certificates of title for these lots by extending the lateral boundaries thereof, so as to make the lots front on Pereival street, as defined by the Wellington City Streets Act, 1905. namely, as being forty feet in width. Pereival Street is shown on the dc-posiled plan as being Ofi feel: wide. The effect: of the rectification, if made, would ' l>o to include in the applicant's certificates of title a strip. 2!i feet wide, of what is shown on the deposited plan as Pereival Street. This strip has been fenced in, and occupied by the ..applicant since the vear ISSI. The liegisirar refused to rectify the certificate of title in this way. The ground of his refusal was that tiio alteration was net one that could properly be made under Section Vi or Section 75' of the Land Transfer Act. 100,S, and that tho (|Ucstion was one ©T ownership between the applicant and the i-egistn-ed propriel-c-rs of tho land. Tlio iinplicant thereupon issued a summons . under Section 2011 of the Land Transfer \et calling upon tho Registrar to substantiate and uphold tho grounds of his refusal. "The power given to the Registrar bv Seclions 7-1 and 75 of the Land Transfer Act is discretionary," said his Honour, "and this Court has no power to order i the Registrar to make tho amendment. ! asked for. Tho Registrar is willing, . however, as was the Registrar in this ■ ease, to make the Amendment, if this Court is of opinion that it is one which he ought ta make." After fully reviewing the case, however, tho learned Judge held that the Registrar was justified in refusing to nmond tlie cerlificate of title. The summons was therefore dismissed, with costs .£5 ss. Mr. 11. D. Bell, K.C.. with liim Mr. F.-11. appeared for the plaintiff, and (lie Solieitor-Cienei-al (Mr. .T. W. S-ilmond) for the District Land Registrar, Wellington. i INTERPRETATION OF A WILL. Mr. Justice Sim decided one or two interesting points yesterday concerning the inlcrpret.ition of tho will of Robert Laerv, deceased, lato of the llutt. A. A. S. Menteatli, solicitor, and Nicholas 'Reid, merchant, trustees of the will, woro the plaintiffs, and the five children, Frances Louisa Russell, Adelaide Evelyn V'lies Levien, Ada Helena May Robinson, Ivy Elsie Paulina Bothamlcy, all of Wellington, and Elliott Alfred Laery, clerk, of Greytnwn North, were tho defendants. Mr. F. E. Ward appeared for the trustees, and also for Elliott. Alfred Laerv, who submitted to the judgment of I he Court. Mr. Martin Chapman, K.C., and Mr. T. C. A. Bishop appeared for the ' defendants, and Mr. J. W. Maedonald for the Public Trustee, who had been served f, v order of the Court for the purpose of protecting the interests of tlio graml- > children. By his will deceased gave o per cent, of the ntl. annual income of his estale, ■ hut not 10-s than :10s. a week, to the widow during her life. lie directed per cent, of such incomo lo be paid lo 1 each of his children except Mrs. liobinuui. who was to get 10 per cent, Tbcsa

payments wore to cr.nliimo- until tho yoiuiKt-'ht cliilil, llrs. Ilnlhanilcy, attained flic age uf 1111. That ivauld lie mi .lime :ill, I'.IKI. The balance cf flic income he directed to be accumulated. ami applied at his trustee:.' discretion fur Midi of h children and hi-; wile it thev thought lit. and, on Hie youngest child attaining the ago of Wl, tlu* income from tile e.-late (alter paying the widow's income) was to irr, to each child for life and to Hip issinj of a deceased child. On the death of lho last surviving cliilil, the graudchildren look the capital per stirpes. II r. .i.u-tico Edwards in V.lll!) had heard r:n application by the willow under the Testators' Family H:\inlonaiicp Act. and had orlored lior .C2(lll pel' annmii during widowhood. This sum was lo be paid out nf testator's estate, but was to be primarily charged on (he surplus income. The trustees have now on hand, onf nf the surplus income, a sum of 1 :M. This was claimed by the live children of deceased I.) l:e inconic belonging to them, am. l not capital to go to llio grandchi.'lren. The ijnestion for the Court to decide, on the criginating .summons taken out by Hip trustee?, was whether such sum belonged to the five children or to the grandchildren, or was it liable to be used for the widow's annuity? And, it not, was swell annuity payable cut of tlio general j income of I ho estate? 111 his reserved judgment, delivered yesterday, his Honour held that the money belongs io the children, and that the annuity is payable out of the general inconic ol'" flit! estate; ' .. Tlio question of costs was reserved for a future date.