COURT OF APPEAL.

New Zealand Times, Volume XXXI, Issue 4896, 30 November 1876, Page 2

COURT OF APPEAL.

The Court of Appeal sat at a quarter to two, and proceeded to consider KEGINA V. NORM AN EVANS. This was a criminal case from the Christchurch division of the Supreme Court, in which the prisoner had been convicted for perjury, and his Honor Mr. Justice Johnston had reserved the question for the Court of Appeal whether the conviction could be supported. Hr. Gordon Allan appeared for the Crown, and stated.that the alleged perjury arose in a prosecution for larceny. The Resident Magistrate had treated the proceedings as for summary conviction of larceny under the Justice of the Peace Act, 1867, and acquitted the prisoner. It had been contended that the Resident Magistrate had no jurisdiction to hear and determine the charge on the information as laid, and that it was not competent for him to proceed on that information, except for the purpose of preliminary examination as to the indictable offence, and that the information was substantially insufficient to support a summary conviction, as it only averred a suspicion of larceny, and did not allege to whom the property belonged. He would submit that under these circumstances the conviction for perjury on these proceedings should be sustained. . ... His Honor the Chief Justice delivered judgment, and said that there were several defects in the information, but the jurisdiction of the Court was not thereby affected, and the conviction would be affirmed. The other Judges concurred. WEBB V. NATIONAL BANK OF NEW ZEALAND

(limited.) Mr. Travers, by leave of the Court, mentioned the following cases as bearing on the fourth count, viz., Harvey v. Gibbons, 2 Levins, 181; McGregor v. Dover, and D. Ry. Co., 18 Q. 8., 618; and Fribble v. Broghurst, 1 Swanston, 309. Mr. Macassey then replied and said that he would deal with the question of whether the appellant had disclosed any legal status in the declaration. If his friend’s contention was sustained by the Court, the question arose supposing the bank were justified in the sale, would the Court allow the appellant to amend his declaration so as to extend his cause of action to the excess which the’: evidence showed took place at the' sale. It should be remembered that the bank could have demurred to the declaration. Ho was quite willing to presume that there was no complete creation of a trust, and would cite Harland v. Sinks, 15 Q. 8., 713. Lord Campbell there laid down that a verbal assent by one of the creditors to an assignment for the benefit of creditors was sufficient to render it hourevocable. The question which arose as to

the leasehold was—was there a privity of contract between Smith and the lessor? The attestation should have been by two witnesses under the Conveyancing Ordinance, but as amended only one witness was required. White v. Hunt, L. Rep. 6, Excheq. 32, would furnish one test by which the effect of the settlement might be arrived at.- Supposing the Court should hold that a trust was created by the settlement, there was nothing inconsistent in the' Court continuing that trust by a vesting order under the Trustee Act. Supposing a trustee refused to exercise a right of action, the Court of Chancery had full power under the Trustee Act to vest that right in some other person that the action might be brought and the interests of the beneficiaries be looked after. Section 23 of Trustee Act, 1850, made special provision on this subject, as also did section 24. The forms in Seaton on Decrees, p. 798, also bore on the subject, a form being given under which a chose in action could be vested in a new trustee where the old trustee refused to proceed with it. In the same work, page 804, sections 32, 33, and 34 were particularly referred to. He would contend that the intention of the Legislature was to relieve beneficiaries from trustees who refused or neglected to act. He would submit that the vesting order passed to , the appellant all that was necessary to enable him to sue, being both an appointment and a conveyance. The Court intended that the real and personal estate should vest in Webb in the place and stead of Driver. As to the contention that the existence of the Conveyancing Ordinance should ■ not be considered in looking at the effect of the Trustee Act, he would submit that the statute should be read by the light of tha ordinance. The New Zealand Legislature directly sanctioned the assignment of choses in action, and in looking at the- vesting order this fact should be considered. It was admitted that under the authority of King v. Johnson a debt was assignable, and why should not the same doctrine apply to the vesting order. If the contention of the other side , was adopted, many inconveniences would arise for moveable chattels and many things which savoured of personalty would not be assignable by the Court in appointing a new trustee under the Statute. In re Joyce, L. Rep. 2 Eq. 576, was a case which would illustrate the inconvenience if a similar doctrine was applied to the bankruptcy law. Having regard to the Conveyancing Ordinance and the language of the Trustee Act, there was nothing to shew that the order was not perfectly valid and effective. As to the restrospective nature of the order, he would refer the Court to section 35. case of Hyslop v. Baker, in his opinion, if.'it was carefully analysed, would be found to apply to the present case. The right of action must vest in someone, and the order was not therefore the new appointment of a trustee alone, but a sort of statutory conveyance. De Gex and Smith on Composition Deeds, p. 96, the Notes to Byal v.Bowles, and Wetherall v. Julius, 19 L.J.C.P. 367, all applied to and bore out his contention. Notwithstanding Cornish’v. Forman, he would contend that the same goods and chattels were alluded to all through the declaration, and by the of the findings jury were identified as .the property of the appellants. Dignan v. Bailey, L.E. 6., Q.B. in Ex Cham. 47, would bear him but in this view. He would submit that under the settlement Mrs. Hunter was not entitled to possession. The husband also could not sue, and he contended that Mrs. Hunter should be looked upon as having possession as agent for the trustees.. Her possession was to be looked upon as the constructive possession of the trustees, which was quite sufficient to enable them to sue. White v. Bailey, 30 L. J., C.P. 253 illustrated this principle. Mrs. Hunter’s interest could alone be asserted through the trustee. Unless the Court came to the conclusion that the order vested no right in the appellant there could be no possible objection to the second count. It had been contended that the introduction of the words “other goods, etc.,” introduced a different cause of action; but in his opinion they did nothing of the kind. -The articles were such as in the way of. trade would change, and the doctrine of confuaio bonorum would apply, the substituted goods becoming the property of the anpellant. The cases on the subject were all collected in Randall v. South Australian Insurance Company. Law Rep. Privy Council. The right to seize the after acquired property only arose after what he would term a novus actus. The question of the bank’s right was affected both by the marriage and the settlement. The husband by being a party to the. settlement waived his marital rights. Karr v. Ackermann, 25 L.J., Excheq. 90, illustrated this argument. The objection to the third count was cured by the verdict of the jury, as that verdict was given by proper direction as to the law from the learned Judge at the trial InMears v. S.W. Railway Co., cited yesterday, an important principle was laid down as to possession in an action for trover. In “Maine on Damages” there was also further authority. He did not propose to say anything further as to the form of the rule. If the Court found that the Court below was wrong in granting a rule for a new trial on issues rendered .inoperative by the first breach of the rule, he world submit that the appellant would be entitled to costs. As tq the remaining portion of the rule he would not trouble the Court, 1 but would submit that' if the appellant had any status he had clearly shown an actionable wrong. Rainey v. Bravo, before referred to, dealt with the question of amendment, and he -hoped the Court would take it into consideration, although this J suggestion was not intended as a waiver of any of his previous arguments. He would leave the case in the hands of the Court. Judgment was reserved, it being arranged that it should be delivered by Mr. _ Justice Williams in Dunedin, and in vacation if necessary. Leave to appeal to the Privy Council was reserved by consent on the usual terms as

to costs. . The Court then adjourned until 11 o clock next day.