SUPREME COURT

Dominion, Volume 11, Issue 232, 19 June 1918, Page 9

SUPREME COURT

» CONSTRUCTION OF A WILL SOME FINE POINTS In the Supreme Courl yesterday, before His Honour Mr. Justice Honking, legal argument was heard en a question arising out of tlio will of the late George Howe, of Palmo'rstoii North, concerning -tlm distribution of tho residue of hi# cstillo iiipon tho death of his wido v. The will provided for the oivteion of I he residue amoiijr "all the children of my lute brother .John Howo and my sister .fane New.-omc in equal shares," and this lanjjuage was Open to four tonstruefions— miniely, (1).- That tho cliiMren of John Howe and Jane Newsonio herself tako per capita; (2) that the same persons take per stirpes; (3) that the children of John Howe and the children of Jano Newsonio tako per capita; and - 1) that the persons tako per stirpes. It appeared that tho brother John Howo left seven children and Jane Noweomo three children, besides the issue of a deceased child. A further question arose as to whether such issue look any snare under a further clause In the will providing that if any legatee under the will should die durjiiK the testator's lifetime leaving a child or children, such child or children should tako the_ share their parents would have taken if living. The parent, of such issue died beforo the will was made. Mr. E. P. Hay appeared lor tho Public Trustee (cxecntor of <hn will), and as representing tho estate of Jane Novvsome; Mr, U. M. Findlay for the children of Joint llowe, deceased; and Mr. W. L. Rflthoiibprs for the surviving children of Jane Newsonio. After heariue argument Hie Honour reserved decision. AN APPEMT CASE ' MILK PROSECUTION. Henry. Bodley and Sons, 'dairymen, represented by Mr, T. Nflave, appealed against their conviction by Mr. S. E. M'Carthy, S.M., for having sold milk lo which it was alleged an tin Jug proportion of water had been added. The facts were admitted. I t was agreed that water had been found lo be in the milk, but it was contended lhai it was not placed there by the appelhnts, who purchased the milk from dairy farmers on tin; Mailawntu line. Tho point at issue Was whether tlio appellants had taken all reasonable lo see I hat the milk was of such quality as to conform to the regulations. In tho courso of his argument, Mr. Neavo .pointed put that Ihp jppellants had instill lied a costly and i;n-10-dale plant for Hie testing and tre.ilin;; of milk generally, but owing to Ihe !a'e arrival of milk trains, which occurred constantly, also .owing to the shortage of labour because of the war, it was nol always possible lo thoroughly lest the milk, and somejinies it was not possible lo test it at all. On (lie occasion c.f the conviction—the subject of the appeal—the train did not arrive until, midnight (some hours late),- and the milk had lo b- delivered by the appellants to their customers beginning at 3 a.m. Thus Have; was no time lo test it, and, as a matter of fact, it had since been actually ascertained who had added water to tiie milk in question. His Honour, remarked that the possession of a testing and treating plant was hardly sufficient to excuse n man if he did uot make use of il.

Mr. NWe: It wis claimed in this.case 1 that full use had been made of the plant and laciUties. That foals wore made every day except when cu'cumslanees prevented tuis being done.

Mr. J. Piviuieville, of the V nv.vn Law Ollia 1 . who appeared tor Wilis.i n Henry Rawlinson,' inspector, ■ the nominal respondent, contended that llk milk Supplied to the public should be pure. Milk containing added water was impure.-and the duty was east upon the vendor to see that the milk was pure. A vendor purcliusing milk from a farier for distribution inust test his milk overy day. Every parcol of milk should be so tested: In this particular case it was stated thai Hod icy and Sons had received milk from a particular farmer for ten- years and they had no reason to suspect I hat the milk wan lmyure. Yet '.his milk was'found to contain added water. The presumption was that this farmer's milk was not being kvjted at all, and that Bodley and Sons .wore relying upon the good character of thu farmer.. The fact was that the fanner was milking on shares, and w;is not giving it his personal attention, and this fad was not known to Bodlev and Sons. |f tlie retailer had any suspicion of the milk supplied to him the Department would, if requested, follow up Ihe matter, so that the .retailor bad every inducement to help the Department. Counsel contended that the iiiteslion of "reasonable steps" was one for the Magistrate to find on the facts placed before liini. Jn this case the .Magistrate had found Uiat reasonable' sleps had not bee." taken. His Honour roservod his decision.