LAW REPORTS.

Dominion, Volume 5, Issue 1258, 13 October 1911, Page 3

LAW REPORTS.

THE COURT OF APPEAL. 1 CLAUSE IN A WILL. j WHAT DID THE TESTATOR MEAN ? j Tho Court of Appeal was occupied yesterday with the hearing of the case of , Corle'y and others v. Corley and another. , This was an originating summons , brought in the Supreme Court at Aiick- , land to interpret a clause of the will ot , James Corlev, deceased. Tue Bench was , occupied yesterday by the Chief Justice , (Sir Robert Stout), Mr. Justice Denniston, Mr. Justice. Edwards, Mr. Justice ( Chapman, and Mr. Justice Sim. The parties were Margaret Corley, j spinster, Edmund Maliony, solicitor, and j Maurice Folc\, settler (executors of the , will of James Corley, deceased), all of , Auckland, plaintiffs, and Mary Anne j Corlev, spinster, and Winifred Corley, 1 spinster, both of Auckland, defendants. | James Corlev, a beneficiary under tho will in tho residuo of tho estate, was also cited. . . ~ Mr. T. S. Weston appeared for the executors of tho will (the plamtifts). Dr. Bamford, of Auckland, for the two defendants, and Mr. E. J. Prendegast, of Auckland, for James Corley, tho other , party cited. < The clause in the will, for which 1 an interpretation was asked, ran as follows:-"! give to my daughter, | Margaret Corky, 51 shares in the Auckland Gas Co., Ltd., and to each 1 of rav daughters, Mary Anne Corley ] and Winifred Corley, 53 shares in tho , raid company." • At tho time of the execution of the ' will tho testator owned 160 shares ol a J nominal.value of .£5 each. Prior to the death of the testator each of these shares was subdivided by the company into five shares of the nominal value of .to eacn, *nd tho holding of the testator was therebv increased to 800 .shares, which he still held at the time of his death. Tho question for the Court was: Are ' the said beneficiaries entitled only to the ■ number of shares respectively bequeathed . to them by the will or to five times the ■ number so bequeathed? ; Tho following fads were admitted:- • That, at the date of tho execution of the will, the deceased held 160 fully paid- ' up Gas Company shares of the nominal < value of £b each; that at that date all the shares in the company were ot the ; nominal value of .£5 each and fully paidup; that subsequently tho company . created new shares of £o each, and i iw'ued sumo at a premium of ■"«»«} ' holder of original shares being entitled to take up one of the new shares for < every original share held by him, and : the deceased took up 160 shares accord- < in"ly; that, after the execution ot. the ; will, each of the original shares was subdivided into five shares of the value of : .£1 each fully paid-up; that, at {he date of his death, the deceased still held SCO fully paid-up shares of .£1 each, and 160 contributing shares of £5 each, m respect of which he had paid lvs. 6d. and 17s Gd. on account of the bonus ot .to. By conse.it at the hearing, the follow- ; ins question ™ s submitted: If he said beneficiaries a'ro entitled only to the number of shares respectively bequeathed to thorn, by the will, are they entu ed to elect whether they will respectively take that number of fully paid up shares of the nominal value of <£1 each, or tha, number of contributing shares of the nominal value of p each. Upon reading the consent, tho Judge ordered tho originating summons to bo removed into the Court of Appeal, where it was heard yesterday., argument occupied the whole I morning, and their Honours reserved decision.

MINING CASE.

ALLEGED BREACII OF CONTRACT. In the aftornoon the Court heard the case of the T.-.irua Golden Jlills. LUU v. M'Kano and others. The Chief Jumico (Sir Hobert Stout)/preswr«l,-and.vsi. tlmswith him were''Sir •■■J6shWa;-'\ViHunns,-. : Jlr. Justica Denuiston, and Mr. Justice Chapmfln. ..„ ~ . , . . _ . Tliis was an appral .from-nfrtccisioft-ot •. Mr. Justice .lwlwiU'ds," delivered "at ■Aiick--laud, disalloinny an appeal irpm the •Warden's C'eurt at-Thames. ' '■ Tho parties to the action v.cro tho lairua Golden Jlills, Ltd., mine' .mmers, ot Auckland and Tairun, appellants, and David M'Kano, Charles Lockyer, Richard Lockver, Jeremiah O'Sullivan, William Kin4lla, aaitl Charles Jochin, miners, of Thames and Waihi, respondents. Mr. J. K. Eeed, of Auckland, apr/Oared for the appellants, and Mr. T. Cotter, of Auckland, with him Mr. E. J. Clendon, of Thames, for the respondents. In the origiual action in the Wmdcns Court M'Kune and othei-s (the respoiulcnto in the'-present action) were plaintiffs, and the Tairua Golden Hills, Ltd., defendants. Tho claim was for MM 2s. Id. damages alleged to 1)0 due for breach of contract, etc. M'Kane and his party alleged that thoy had been the successful tenderers for stoping IO.OCfI tons of quartz from one of tho campany s mines, the price being Gs. Cd. tier ton. The party paid a deposit of J25, and were ready to start on March 10, 1010, but alleged that Wis company had delayed (■ liem from proceeding with the work until May 2, I'.UO. ITie work was then carried on until June 11,' when tho company closed down the mine, and suspended the contract on account of a. mill breaking down. By. that time M'Kano and his party had shifted 1330 tons (according to their own. measurement), but 1080 tons according to tho company's measurement. As they had nst W allowed to complete the- contraoc they sued the company for .£1517 2s. Id., th" principal item or which wa.s MMB loss.of protit on 8920 tons of quartz yet to be removed. The warden gave judgment for the plaintiffs for M'i! 17s Id., bein" .£450 damage;, relund ot deposit 0 , and .£22 17s. Id. refund of percentage money. From this decision the defendant company appealed to tho Supreme Court at. Auckland on the ground that if was erroneous in point of law, ami that the company had in fact been guilty of no breach of contract. , Mr. Justice lOdwards disallowed the appeal, and the company carried tho case ta tho Court of Appeal. The main point in Mr. Reeds argument vasUrtlay was that, by the conditions ot the agreement, Mr. Kane and party had contracted to deliver quartz to t'ho company at a maximum rate of SO tons per diem lip to 10,000 tons, but that the company were not bound to take quartz when they did not require it. Tho company had (he contended) merely suspended the contract. | The case was only partly heard at 4.30 p.m. when the Court adjourned until this morning.