LAW REPORTS.

Dominion, Volume 5, Issue 1489, 11 July 1912, Page 9

LAW REPORTS.

PUBLIC'S INTERESTS. CASE THAT FELL TO PIECESIN APPEAL COURT, "IT WOBLD BE BAD PRECEDENT-" Two special cases under the Public lrust Office Act, involving rather important points of public interest, came on tor hearing in the Court of Appeal yesterday. On the Bench were the Chief (Sir Kohert Stout), Mr. Justice \\ illiains, Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Chapman. , ' Case I.—Empowering the Public Trustee. In ono case the Public Trustee sought the direction of the Court as to how far the words of the Public Trust Oflice Act nave mm an absolute right to administer the estate of any intestate person. The words of the statute appeared to show ' ® '/■ ll^J ' lc trustee was entitled as ot right-to act ns indicated, but he desired a judicial decision oil the point to denne his position so that, in cases whero ",^| ic ficinres were minors, under a disability, or absent, or unable to protect their interests, lie-might by virtue of the preference given him by the statute step in ana claim the administration as of right.. Casa 2.—Conflict of Our Statutes. The other case arose by reason of a conflict between the Administration Act mid the Public Trust Office Act. The former provides that an executor or admimstrator may sell, lenso, or mortgage real estate for payment of. debts, but that, if not required for. debts, oil order of the Court is needed. The Public Trust Office Act provides, that up to ,£SOO in value the Public Trustee can, without an order of the Court, sell real estate for any parties, and that, whero the estate exceeds ioOO in value, an order of the Court, has to be obtained. Sir John I'indlay, Iv.C., with: liiin Mr. J. IV. Macdoiiald,'appeared for the Public Trustee, and Mr. C. P. Skerrett, K.C., with him Mr. A. Gray, appeared for the .New Zealand Law Society, tho Court having previously intimated that it was desirable the society should take part in the argument. : At the outset Sir. Skerrett stated that ho felt bound to raise a preliminary ob'-' jection, though it was one that ho would not g-css if the CouTt considered that he Suould withdraw it. The two cases concerned abstract "Questions of law not raised in any particular action, and there were necessarily 110 parties. It was' impossible to read Section 30 of the l'ublip Trust Office Act without seeing that this procedure was not what, was contemplated by tho statute. Coujiscl contended tlmt, if these cases were heard, a great injustice might be inflicted on interested persons, who could not appear or have the opportunity of (being represented. ' His own position was one in which he must; ■ to a certain extent, stand aloof in the argument. . He naturally could not stand in the same position as counsel representing parties actually interested in tiro dase. For these reasons he questioned the'jurisdiction of the Court. What Theii* Honours Said..

After Sir John Pi'ndlay had replied to the objection, their Honours retired to consider the question. Subsequently, their Honours delivered judgment, upholding Mr. Skerrett's preliminary objection. The Chief Justico was of opinion that 110 jurisdiction was conferred on the Coul't to hear tho two eases ' submitted' for consideration. No case was under administration involving the questions raised, the Court being simply asked for an opinion on abstract questions of law. A very bad precedent would be established if their Honours met for Iho purpose of licarinß a discussion on. ;uch questions. h -

Mi'. Justice Williams, Mr. Justice Ei wards, anil Mr. Justice Chapman cor curred in this view, Mr. Justico Edward remarking that, on account of tile difficulty of having the public properly- represented, it was well that the Court had been, able to find that it was without jurisdiction. i . . : Mr. Justice Denniston stated that he was not prepared, without giving the matter fuller consideration, to express such a definite opinion as his brother Judges. He agreed, however, that it would bo improper to hear the cases if the Court was without jurisdiction.- He added that lie was of opinion 1 ' tlint the practice of having the members of that Court, made advisory counsel was an objectionable one.