LAW REPORTS.

Dominion, Volume 5, Issue 1378, 2 March 1912, Page 15

LAW REPORTS.

SUPREME COURT, FOREIGN INSURANCE, LLOYDS' UNDERWRITERS < ~ Yesterday Mr. Justice Sim heard argument in an originating summons for a declaratory judgment under the Foreign Insurance Companies' Deposits Act, 1908. The plaintiffs were Dalgety and Co., Ltd., a company incorporated in England, but carrying on business in New Zealand, and the defendant was the Solicitor-General. Mr. C. V. Skcrrett, K.C., with him Mr. C. B. Morison, appeared for the plaintiffs, and the Solicitor-General (Mr. J. W. Salmond) defended in person. Outline Of It. The facts had been agreed upon and committed to writing. It was agreed that Dalgety and Co. wcro a company established for tho purpose of carrying on all classes of commercial and financial transactions, including insurance, and of acting as agents in the transaction of such business. In November, 1909, the company entered into an agreement with certain of Lloyds' Underwriters with respect to the insurance of motor-cars against fire, theft, and accidental damage. According to the recognised usage of Lloyds' Underwriters, on which basis the contract was made, the contract of insurance contemplated that the -underwriters should issue an open policy in favour of the plaintiff company: (a) Describing tho subject of the insurgeneral terms, and leaving tho particular property to be covered to be from time to time defined by subsequent declaration. (b) Containing a provision authorising the plaintiff to issue certificates, agreeing that such certificates should represent the. declaration on the original policy, and conveying all the rights of the original holder of the policy. In- practice, however, no such open policy was actually issued by tho underwritevs to the plaintiff company, but there was a contract embodying the terms of the policy. In pursuanco of the agreement, the plaintiff company had established as part of its business in New. Zealand the practice of receiving proposals for the insurance of motor-cars, and also declared its own properties under the provisions of tho insurance contract.

The insurance so constituted takes effect from the dato of the certificate of insurance, and before any communication is made to Lloyds' underwriters. The plaintiff company pays a proportion of the premium received to the underwriters and retains the residue. At regular intervals the company transmits to the representatives of the underwriters in London copies of all proposals and certificates received and issued by the company. All claims under the insurances effected are settled by the company and reimbursed by the underwriters. It was contended by the Solicitor-General that tho underwriters were carrying on the business of insurance in New Zealand, through tho plaintiff company as their agents, and that, a deposit of .£IO,OOO should therefore be made by tho underwriters in'accordance with' Part 111 of the Foreign Insurance Companies Deposits Act, 1908. Mo such deposit had been made. In the alternative, it was contended that the business of insurance was carried on in New Zealand by the plaintiff company, and they should therefore pay the deposit.

Relied on by Dofencs. For the defenoo, it was argued that any such deposit was unnecessary on the ground that neither the plaintiff company nor the underwriters were carrying on the business of insurance iu Jvcw Zealand. Question at Issue. The question at issue, then, was whether Dalgetv and Co., in. assigning part of their benefits under'the'floating policy issued by Llovds' underwriters, were acting as agents for the underwriters, or themselves carrying ou insurance business as principals. Decision was reserved,

GLASGOW LEASES. CORPORATION AND THE D.I.C. A test case between the D.I.C. and the Wellington City Corporation in connection with Glasgow 'leases was mentioned before Mr. Justico Sim yesterday, in a motion for direction as to (he service of the, originating summons which hud been issued for tho purpose of obtaining an interpretation of the construction of certain city leases. The Wellington Harbour Board wore lessors under exactly the same terms of lease, and they were anxious to be served as defendants in tho proceedings. The motion was made by Mr. A. Pair, counsel for the plaintiffs. His Honour said he did not seo why the Harbour Board should bo concerned in the litigation. They ivjuld not be bound by any decision, and they could obtain the benefits of the interpretation without being joined as parties to tho action. He directed that tho defendants < nly be served, and tho action was thereupon moved to the Court of Appeal.

COMPENSATION. MAORI LAND COMPLICATION. Whether land for a road can be talccn without compensation under tho provisions of Section 389 of the Native Land Act, 190r>, and Sections '.13 and Po of the Public Works Act, 100S, through the lands of the plaintiff, such lands being originally vested in certain aboriginal Natives of 'New Zealand under memorial of ownership dated Pebriwrv S, 1870, under the Native Land Ad, 16T>., but no-,» cum* prised in certificate of title in lieu of grant under the Land Transfer Act, 1881? Such was the effect of :lie question submitted to the Chief Justico for determination in the originating summons J'yvo Louisa Smith, Alfred Owen Williams, and Edgar Churtnn Smith, all of Wangnr.ui, plaintiffs, and. the Solicitor-General, defendant. Mr.-W. J. Treadwcll (WanganuO appeared for the plaintiffs, and the SolieitovGencral (Mr. J. W. Salmoiid) appeared in person. Practically the same fiuesUon was, involved in the orginating summons between tho Solicitor-General (plaintiff) and Henry Bernard Cave, Aubrey Oldknow Cove, William Edgar Smith, and Thomas Allison, all of Wanganni. defendants. Tho defendants Cave were cited as owners of tho land affected, and the other two defendants as mortgagees. The argument, which was submitted by the sama couuiel in each case, was somewhat technical, lcviewing as it did the terminology of the statutes and a great deal of ease law. His Honour le.served judgment in both cases.

TOO LATE. APPEAL DISALLOWED. Mr. Justice Sim yesterday refused to allow- an appeal against the decision of a Magistrate io proceed on the ground that tho' proper procedure had not been followed. Tho appellants were Ryder Bros., butchers, of Pctone, and the decision which I hey wished to onII in question was one given by Mr. \V. 0. Kiddcll, S.M., wheroby he allowed damages against appellants io Mr. V. N. M'Yiear, of John'onville. in the sum or JJ'2ll Is., with losts ,£!! IS.*., for the dcstruoliun of M'Viear's horse after it had been cored by one of a mob of cuttle owned by fiyder Bros. The affair occurred on Iho Ngahauranga Uorge flood, while the cattle were being driven from the Johnsonville saloyard* to the slaughter yard at J'etbne. Mr. P. Levi, with Mr. 1\ W. Jackson, appeared for the appellants, and Mr. C. U. Troadwell for the respondent. His Honour, after heaving argument on the point, refused Io allow the appeal to be made, as respondent's solicitors had not been served with notice of the appeal until th* expiry of Ihe seven days allowed for such notice.

MUST FORFEIT, AN. TNUTCKY LKGATKK. Mr. Justice Kim delivered his reserved judgment ycstcrdny in a cnso h» had

hoard the previous day—in re Daniel M'Gregor, docca.scd, between Duncan Henry M'Gregor and John li<lwu:-d Gentles, both of Johannesburg, plaintiff-, anil the l'ublic Trustee, defendant. Mr. C. 11. Trrailwrll appealed for plninlill's, and Mr. J. W. Macdonald lor the Public Trustee. Daniel M'Gregor left by his will to U. 11. M'Gregor an annuity on condition I hat ho should not hypothecate his interest under the will in any way whufsover, and on determination of the tin-t Hutu was a (rift over. In Johannesburg he borrowed .£BO from Gentles, and aligned as security his year's income. The document executed was forwarded (o the J'ubhc Trustee, but he ivl'ii-cd to recognise it, and declared that 1). 11. M'Gregor had contravened the conditions of the tiu-4 under which he held his life interest, and that the gift over mii-t take effect, the action was lo prevent the forfeiture taking effect. His Honour, at the conclusion of his judgment, said: "It is unfortunate for M'Gregor that his interest under his father's will should have been determined in this way. no certainly must have executed the assignment in ignorance or forgetfulness of the provisions of the will. That, however, docs not prevent the forfeiture from taking effect. I must make an order, therefore, declaring that the document of October 18, 1911, operated as an assignment under tho provisions of Clause G of the will so as to determine the trust in favour of M'Gregor, and to cause tho gut over to come into effect." An application for plaintiff's costs out of the estato was opposed by Mr. Macdonald, and, his Honour refused to make an order.

WHOSE SHARES? COMPANY IN LIQUIDATION. The summons taken out by tho Official Liquidator (Mr. A. Simpson) of the Marlborough Brewery Company, to decide whether ono D. Brand should be accounted a contributor to the liquidation in respect of 1720 shares which stood in his name in the company's register, came before Mr. Justice Sim yesterday. Brawl had applied for tho shares when he was a. junior clerk in the office of Macdonald, Wilson and Co.. Summonses were issued against T. Kennedy Macdonald and A. L. Wilson in respect of the same shares. Mr. C. B. Morison appeared for the defendant. Brand, Mr. K. K. Kirkcaldie for Wilson, and Mr. A. R. Meek for the official liquidator. When the case was opened a few days ago Brand gave evidenco that he applied for the shares on behalf of Macdonald, and that the application payment of .CBO was paid by the cheque of Macdonald, Wilson, and Co. Since then he had received no communication concerning the shares, and had paid no contributions of any sort, i It appeared that Macdonald also had signed the company's Memorandum of Association for 1720 shares, and the further question arose whether he should not bo placed on the register in respect of another parcel of 1720 shares. After argument his Honour decided to hold over all consideration of the questions concerning Macdonald. It was suggested that if Brand was listed as a contributor under the liquidation, the question would probably arise as to his right to be indemnified by Messrs. Macdonald, Wilson, and Co. On November 19, 1901, Brand signed n document purporting to transfer his shares to Macdonald, Wilson, and Co., and the Brewery Company refunded the application money to Macdonald, Wilson, and Co. Mr. C. B. Morison, counsel for Brand, conceded yesterday that such n transfer was ultra vires and void, and that if Brand was an original shareholder he must remain a shareholder in spite of tho alleged transfer. Counsel contended that Brand applied for shares only as an agent nnd trustee for Macdonald or for the firm, and that Macdonald or the firm should therefore be held liable. ' The contention of Mr. Kirkcaldie was that tho whole transaction was Macdouald's, and that Wilson personally had no interest in it. His Honour reserved judgment.