New Zealand Law Journal - library.victoria.ac.nzlibrary.victoria.ac.nz/databases/nzlawjournal/pubs/1955/1955-12-177.pdfparties who suffer damage arising from his failure to repair

New Zealand

Law Journal incorporating *‘ Butterworth’s Fortnightly Notea”

VOL. xxxi TUESDAY, JULY 5, 1955 No. 12

INJURIES TO THIRD PARTIES DUE TO LANDLORD’S NON-REPAIR*

WHERE is nothing in the Propertv Law Act, 1952, or

1

1 Y in the Land Transfer Act, 1952, which imposes any obligation on a landlord to repair the demised

respects reasonablv fit, for human habitation ; but, on the principle of Chvalier v. Pope, the daughter had no remedy against the landlord in respect of the breach of his implied obligations, which were in the nature of condit’ions included by statutory implication in the con- t,ract of tenancy, to which she was a stranger. In that case, Lord Reading, L.C.J., at p. 1.40, said :

In truth, Cavalier V. Pope, [1906] A.C. 4228, is a fence which it is impossible to get over ; it stands as an unsurmountable obstacle to all the arguments which have been put forward on behalf of the appellant. . . . Cavalier V. Pope which is on all fours with this case-is a binding authority upon us in the application of its principles.

premises or to keep them in repair. Such a duty to repair may be the subject of agreement between the landlord and the tenant, but, the mere fact that the landlord has undertaken to repair does not make him liable to Ohird parties who suffer damage arising from his failure to repair. He is not liable for negligence to a person to whom he owes no duty ; and, accordingly, he is not liable for injuries resulting from such non-repair to a member of the tenant,‘s family. Thus in Cavalier v. Pope, [1906] A.C. 428, where the landlord had contracted to repair certain flooring in the demised premises, but’ failed to do so, the tenant’s wife fell through the defective flooring and was injured. The tenant’s wife claimed damages, but her action against the landlord failed on the ground that the landlord owed no duty to her, either in contract or in tort ; and that, at common law, she was in no better position than a guest or a customer of the tenant. In other words, t’he person liable to invitees or licensees is the occupier ; and, accordingly, an owner out of possession is not,, in general, so liable. We say “ in general ” because there is an exception in relation to the landlord of a furnished tenement.

In Cavalier v. Pope, their Lordships approved, as beyond question, the following passage from the judgment of Erle, C.J., in Robhins v. Jones, (1863) 15 C.B. (N.8.) 221, 143 E.R. 768 :

A landlord who lets a house in a dangerous state is not liable to the tenant’s customers or guests for accidents happening during the term: for, fraud apart, there is no Jaw against letting a tumble-down house ; and the tenant’s remedy is upon his contract, if any.

Thus, the landlord was held to be under no liability to a workman employed by the tenant who was injured owing to a defective staircase : Lane v. Cox, [1897] 1 Q.R. 415 ; or to one of the tenant’s friends who 14as injured by a defective wall : Rrorrbley v. Mercer, [1922] 2 K.B. 126.

In R?yall v. Kidwell and Son, 119141 3 K.B. 135, the tenant’s daughter was injured by reason of a defect in a floor in the house rented by her father. There was an undertaking, implied by statute, that the house should be kept by the la,ndlord in all respects reasonably fit for human habitation. Th& Court of Appeal held that, by the effect of the relevant slatutes, there was imported into the contract of tenancy an undertaking by the landlord to the tenant alone that8 the demised premises, during the holding, should be in all

When the Law Reform Committee was appointed by the Lord Chancellor “ to consider, having regard especially to judicial decisions, what changes are desirable in such legal doctrines as the Lord Chancellor may from time to time refer to the Committee “, one of the first two questions which the Committee was invited t’o consider was this :

Whether a,ny amendment should be made in the law relating to a lessor’s obligations towds his tenant’s invitees and licensees.

The Committee’s Report, to which reference was made in this place in our last issue, considered this question, and made recommendations for a change in the common- law position as it is to-day in accordance with the judicial decisions to which we have already referred.

THE EXISTING LAW.

The Committee says that it appears to be well settled t’hat, as the law now stands, a lessor of premises is under no liability to any person other than the tenant who may be lawfully on the demised premises for injury sustained by that person through a breach by the lessor of his obligat,ions to the tenant, whether contractual or stat$ut)ory, in regard to the repair of the demised premises.

The Committ,ee illustrated that statement of the existing law by referring to the facts in Cavalier v. Pope (supm) and in Ryall v. Kidwell and Xon (supa), and by stating the principle on which those cases were decided.

CRITICISM OB THE EXISTING LAW.

The Committee’s criticism of the existing law is expressed as follows :

“ The existing law was recently considered by the Leasehold Committee, which reported in June, 1950, and we are in substantial agreement with the criticisms

178 NEW ZEALAND LAW JOURNAL July 5, 1955

expressed in paragraph 268 of that Committee’s Final Report (Cmd. 7982), which reads as follows :-

258. We recommend a provision giving a remedy in damages for injury through breach of the landlord’s obligation&whether - they be statutory or contractual-to {he tenant’s family and to the “ licensees ” and “ invitees ” on the premises. Their presence on the premises seems to us to be a natural consequence of the tenancy and to constitute an essential element in the tenant’s enjoyment of it. Looking at the substance of the matter it seems to us that there is no reason in principle why the landlord in breach of his obligations should escape the consequences of his neglect, merely because it so happens that the person injured is not the tenant himself. The technical reason for the landlord’s present immunity in such a c~so is that there is no contract between the landlord and the tenant’s relations, visitors and so forth, and that there is no other ground in law on which he can be held under any duty to them to repair the premises. The answer seems to us to be that a statutory liabiht,y should be imposed to surmount this technical obstacle to what appears to be the substantial justice of the case.

“ Cases of this sort, which concern injury to third parties on demised premises, clearly cannot involve any liability on the part of the landlord to such third parties on the ground that they are his invitees or licensees because the occupier of the premises is the tenant and not the landlord. Accordingly, as the law now stands, the remedy (if any) of the injured third party must be against the tenant alone. If the nature of the danger giving rise to the injury, and other relevant circumstances of the case, are such as to enable the third party to recover damages against the tenant as his invitee or licensee, the third party can of course, generally speaking, sue the tenant, and the tenant in his turn can, generally speaking, sue the landlord for the breach in question, claiming as damages flowing from the breach the amount of his own liability in damages to the third party. Where this is so, the absence of any right of action by the third party against the landlord is indirectly surmounted. But where, as in Cavalier v. Pope, the third party happens to be the tenant’s wife and is thus unable to sue the tenant in tort, the landlord in effect escapes liability altogether, for the tenant cannot recover the damages suffered by the third party as damages sustained by him through the landlord’s breach of contract, and the third party, being a stranger to the contract, cannot sue the landlord upon it. There might also conceivably be cases in which the tenant would have a good defence against a claim by the third party, whether as licensee or as invitee, on the ground for instance that the tenant neither knew nor ought to have known of the danger, or that the third party had full knowledge of it, and in such cases also the landlord would escape a liability which might fairly be described as morally his.

“ Cases in the general field we are now discussing may be said to have two aspects, the first being the nature and extent of the landlord’s obligations to the tenant in regard to repairs, and the second being the legal position of the injured third party where the injury is a consequence of a defect in the premises amounting as between the landlord and the tenant to a breach of those obligations.

“ As to the nature and extent of the landlord’s obligations to the tenant in regard to repairs, it is notorious that a landlord’s obligations in this regard are circumscribed. He is of course bound by the terms of any express covenant to repair into which he may have entered, but even so his covenant is held to be subject to an implied condition that bhe

lessee must give notice of the want of repair before the landlord’s obligations arise (see e.g., Tow-ens v. Walker, [1906] 2 Ch. 166). In the absence of any express covenant or agreement by the landlord to repair, he is, generally speaking, under no implied obligation to do so, and moreover is not held to give any implied warranty as to the safety or fitness for human habitation of the premises at the commencement of the letting. By way of exception to the general rule, the lessor of furnished premises impliedly covenants that the premises are fit for occupation at the commencement of the tenancy (see e.g., Collins v. Hopkins, [1923] 2 K.B. 617). A further exception exists under s. 2 of the Housing Act, 1936 (Eng.), with respect to dwellinghouses let at a rent not exceeding S40 in the County of London and &26 elsewhere, in regard to which the section imposes an implied condition that the house is at the commencement of the tenancy, and an undertaking that it will be kept by the landlord during the tenancy, in all respects reasonably fit for human habitation. The rule as to notice adverted to above applies to the statutory undertaking as it does to an express covenant (see Morgan v. Liverpool Corporation, [1927] 2 K.B. 131 ; McCarrick v. Liverpool Corporu- t&m, [1947] A.C. 219).

“ Express covenants by landlords to repair are the exception rather than the rule, particularly in the class of case in which the premises are likely to be allowed to become dilapidated to the point of danger, and in view of the necessity for notice where there are such express covenants and, apart from the limited exception above referred to, the absence of any implied obligation where there are none, it seems probable that more often than not a tenant injured through some want of repair in the demised premises will have no right of action against his landlord in respect of such injury, even though the case is not one in which the tenant himself has covenanted to repair and is thus obviously out of court.”

CONCLUSIONS.

The Committee’s conclusions are as follows : “ The present can hardly be regarded as a suitable

juncture at which to place fresh burdens on landlords with respect to repairs, and any recommendations to that effect would in any case be outside the scope of this Report. On the other hand, it would hardly be reasonable to put a third party in a better position vis-a& the landlord than the tenant himself would have been if he had in fact sustained the injury in question.

“ The matter for consideration under this head therefore appears to be whether the legal position of the injured third party in a case of this class should be altered so as to give him the same right of action (if any) against the landlord as the tenant would have had if he had been the party injured, without adding to the landlord’s repairing obligations as distinct from the consequences of their breach. We have formed the view that this should be done.”

RECOMMENDATIONS.

The Committee accordingly recommends that, when the lessor of any premises is bound by his contract with his tenant, or by statute, to keep the demised premises or any part of them in repair, and in consequence of any breach by him of that obligation any member of the

July 5, 1955 NEW ZEALAND LAW JOURNAL 179

tenant’s family, or person residing with or lawfully visiting the tenant, sustains injury, the person injured should have the same right of action against the landlord as he would have had if he himself had been the

tenant ; and this right of action should be in addition to, and not in substitution for, any right of action the injured party may have independently of this provision. The advantages of such a change in the law are that-

(i) it accords with the substantial justice of the case, and

(ii) it avoids circuity of action in cases in which, under the existing law, the third party can sue the tenant and the tenant can claim indemnity from the landlord.

Where a lessor is bound by contract with his tenant or by statute to keep demised premises or any part thereof in repair, and in consequence of any breach by him of that obligation any member of the tenant’s

SUMMARY OF

family, or person residing with or lawfully visiting the tenant, sustains injury, the Committee considers that the person injured should have the same right of action against the landlord as he would have had if he himself had been the tenant, without prejudice to any other right of action he might have independently of this provision.

* * * * It is hoped that the changes in the existing law will

be the subject of treatment in a Law Reform statute in the United Kingdom at an early date. The New Zea- land Law Revision Committee takes a keen interest in the Reports of the English Law Reform Committee and in its recommendations. As a matter of policy, however, it awaits the translation of those recommendations into statutory form in the United Kingdom, before recom- mending similar reform here. This makes for uniform- ity of treatment in a New Zealand st,atut,e with the cor- responding one in the United Kingdom, which, as everyone will agree, is the proper course to adopt when a change in the common law is contemplated.

RECENT LAW. COMPANY LAW.

Two Recant Cases (Managing Director : Forged Transfers), 99 Solicitors Law Journal, 3%.

COPYRIGHT. International Protection of Copyright, 29 Azrstralian Law

Journal, 3.

CRIMINAL LAW-EVIDENCE. Corroboration,-False Statement by Accused not amounting to

Denial of Whole Opportunity-Such Statement amoutiing to Corroboration, if Opportunity and Falseness proved by Evidence other than Complainant’s-Matter of Law, for Judge’s Ruling, whether Lie, ij proved, capable of constituting Corroboration. While opportunity alone does not amount to corroboration, a proved opportunity may have a sinister complexion put upon it ;zsz statement made by a defendant which is proved to be

; and such a statement may thus amount to corroboration, but only if both the opportunity and the falseness of the statement are proved by evidence ot)her than that of the complainant. The foregoing principle relating to affiliation is applicable to criminal cases, and is not to be confined to cases in which the false statement is a denial of the whole opportunity. The principle should be applied with caution: (Eade v. The King, (1924) 34 C.L.R. 154, Credland v. Knourler, (1951) 35 Cr.App.R. 48, and Pitman v. Byrne, [1926] S.A.S.R. 207, applied.) It must always be for the Judge to rule, as a matter of law, whether a lie, if proved, is, having regard to its nature and the circumstances of the case, capable of constituting corroboration, which must be corroboration not only ss to the commisson of the crime but also as to the implication of the accused. The mere fact that a lie is told by an accused about a proved opportunity does not of itself necessarily amount to corroboration ; and the nature of the lie must be looked at before a decision can be made whether the lie is capable of constituting corroboration. (Jones v. Thomas, [I9341 1 K.B. 323, Credlalad v. Knowler, (1951) 35 Cr. App. R. 48, and R. v. Farrelly, 119541 N.Z.L.R. 1, followed.) So held by the Court of Appeal, dis- missing an appeal against conviction. The Queen v. VaUance. (C.A. Wellington. April 29, 1955. Finlay, Cooke, North, Turner, JJ.)

CRIMINAL LAW-FALSE PRETENCES. Obtaining Goods by False Pretences-Physical Possession

irrespective of Ownership SUfficient“ Obtains “-Crimes Act, 1908, s. 252-Criminal Law-Obtaining Credit by Faud-Dis- honoured Cheque--Intention to Defraud Essential-Crimes Act, 1908, s. 253. The word “ obtains ” in s. 252 of the Crimes Act, 1908, means obtaining possession irrespective of ;any question whether or not any title t,o goods is obtained at the same time. There is no reason why a person should not be convicted of the offence of obtaining goods by false pretences, where he secures the physical possession of the goods, t,hough not their ownership, even though the same act may constitute both

theft by fraud and obtaining by false pretences. Consequently, an offence under s. 252 of the Crimes Act, 1908, may be com- mitted even though the property did not pass in law to the person who obtained it by false pretences. (R. v. Cox, [1923] N.Z.L.R. 596 ; [1923] G.L.R. 169, followed.) (R. v. McReynoZds, [1935] N.Z.L.R. 944; [1935] G.L.R. 773, approved.) It is an essential requirement of a charge under s. 253 of the Crimes Act, 1908, of obtaining credit by fraud (namely, by falsely representing a cheque to be a good and valid order for its amount) that it should be shown that the accused, at the time he issued the cheque, had an intention to defraud. The critical question is not the known state of the accused’s account at the moment when the cheque was issued, but whether it has been proved that he did not honestly believe that the cheque in the ordinary course would be met. (II. v. Walne, (1870) 11 Cox C.C. 647, and R. v. Hazelton, (1874) L.R. 2 C.C.R. 134, followed.) The Queen v. Miller. (C.A. Wellington. -4pril 29, 1955. Finlay, Cooke, North, Turner, JJ.)

DIVORCE AND MATRIMONIAL CAUSES-CRUELTY. Deceptiora of Wife by Husband-Association with another

Woman without Intent to injure Wife-Desertion by Husband- Discovery of True Facts after Husband’s DisappearanceAggrava- tion of Shock to Wife-MafrimoniaI Causes Act, 1950 (14 Gee. 6 c. 25), s. I (I) (c). The wife met the husband in 1949, and he told her that all his family had been killed during t,he war, that he was an orphan, and that because he was in the army, he had not found time to get married. They were married m July, 1950. The husband described himself in the marriage register as a bachelor, and the best man was one J.D., his business partner. The parties lived together happily. On June 9, 1953, the husband told the wife that he was going away on buriness but would be back in time to start their holiday on June 11, 1953. The husband did not return as promised, and the wife became anxious and began to make inquiries of J.D., amongst other people. She then discovered that the husband had been twice married, the first marriage having been dissolved on the ground of his cruelty, and the second on the ground of his adultery with E.C. ; that on August 21, 1950, E.C. had obtained against a man who was, by inference, the husband, an affiliation order in respect of a child born to her on October 8, 1949 ; that his mother, brother, and sister were still alive, and that his father had only recently died ; and that since November, 1952, the husband had been associating with the intervener, having become engaged to be married to her in December, 1952, that he took a lease of a flat where they would live after their “ marriage,” and that he induced her to visit Jersey with him to arrange for their wedding t,o take place there cn June 13, 1953. The intervener had not seen the husband after June 7. of these facts seriously injured the wife’s health.

The discovery On October

8, 1953, the husband put a note under the door of the matrimonial home and sought to be received back by the wife ; she refused, and he had not been seen or heard of again. On a petition by the wife for a divorce on the ground of the husband’s cruelty, Held, Neither the deception of the wife by the husband’s


fraudulent statomonts (since thoy wore made before t hc Inarriago) nor t)he husband’s association wit,h the ilIter\-olwr (since it WRS carried on by him for his own gratification and not with intout to injure the wife (Co% v. Cox, rl952] 2 T.L.R. 141, applied) ), nor the husband’s desertion in June, 1953 (since desertion was a separate ground for divorce when of sufficient duration), amounted of itself to cruelty ; nevertheless where, as in the present case, deception was followed by a suspicious association and by complete disappearance of the husband, with the natural consequence that the shock to the wife would be gravely aggra- vated by the manner in which the previous deception would come to her knowledge, the husband’s conduct amounted to cruelty, and, accordingly, the wife was entitled to a decree, Carpenter v. Carpenter (Holden intervening). [1955] 2 All E.R. 449 (P.D.A.)

DIVORCE AND MATRIMONIAL CAUSES-DAMAGES. Measure of Damyges-Principles on which Damages to be As-

sessed-value of Wzfe to Husband in Pecuniary and Co>?.sortium Aspects-Compensation to Husband for Injury to Him-lmport- ante of Co-respondent’s Conduct-Damayes awarded by Jzcry not excessive. Before the verdict of a jury in awarding damages against a co-respondent can be set aside on the ground that the damages awarded were excessive, it must at least be clear that the jury must have taken into consideration matters which it ought not to have considered, or it had applied a wrong measure of damages. (Tranter v. Z’ranter and Lamb, [1925] N.Z.L.R. 593 ; [1925] G.L.R. 346, and Donaldson v. Waikohu County, [1952] N.Z.L.R. ‘731 ; [1952] G.L.R. 373, followed.) Damages for adultery are not exemplary or punit,ive in character, and the amount must depend upon all the circumstances of each particular case ; and, consequently, the whole history of the marriage is relevant in the assessment of damages. The two main principles on which damages are founded are (a) the actual value of the wife to the husband, in the pecuniary aspect, and in the consortium aspect; and (b) compensation to the husband for injury done to his feelings, the wrong to his honour, and the damage to the matrimonial and family life, and, in this regard, the co-respondent’s conduct is of the greatest importance. When the adultery is established only after the spouses have separated, it is important to ascertain whether or not the conduct of the husband was the substantial cause of the separation. (Butt~,rworth v. Bzc.lte?worth atid Englefield, [1920] P. 126, followed.) (Izard v. Izard and Le.&n, (1889) 14 P.D. 45, and Ewans v. Evans and Platts, [1899] P. 195, referred to.) Smith v. Smith and Another. (SC. Auckland. February 3, 1955. North, J.)

DIVORCE AND MATRIMONIAL CAUSES-EVIDENCE. Foreign Marriage-Proof by Cert{ficate-Evidence (Foreign,,

Dominion and Colonial Documents) Act, 1933 (23 & 24 Geo.5 c. 4), s. I. With the object of avoiding unnecessary costs, the attention of practitioners is directed to the Evidence (Foreign, Dominion and Colonial Documents) Act, 1933, and t.he Orders in Council made under it [in particular the Evidence (Belgium) Order, 1933 (S.R. & 0. 1933 No. 383). and the Evi- dence (France) Order in Council, 1937 (S.R. & 0. 1937 No. 515)] and to the case of North v. North (1936), 105 L.J.P. 56. The effect of these orders is, inter alia, that expert evidence is not normally required to establish the validity of Belgian or French marriages in matrimonial proceeding-. Practice Directions. Probate, Divorce and Admiralty Division (Dkorce). [1955] 2 All E.R. 465. (P.D.A.)

FACTORY. Staircase-Hand-rail-Need to provide Second Hand-rail-

“ Special circumstances ” making Staircase ” specially liable to cause accidents “-Shiny metal Strip at edge of Top Stair with adjoining Hatchway-Factories Act, 1937 (1 Edw. 8 & 1 Geo. G c. 67), s. 25 (2) (Factories Act, 1946 (N.Z.), s. 48 (2) ). A staircase at a factory had a hand-rail on the open side but no effective hand-rail on the other side near the wall. At the edge of the floor at the top of the stairs was a three-inch strip of metal which was polished and shiny with use. Two feet away ;;ve; hat,chway out of which grease in tins was periodically

. The staircase was used forty or fifty times a day, and there had been no accident, since it was constructed fifteen years previously, on it or on any of the other fourteen Fimilar staircases in the factory. No complaint of danger from the staircases had been made to the welfare committee set up in the factory and no previous instance of grease on the staircase had occurred. An employee, who had used the staircase constantly during his four years at the factory, slipped on some grease on the top sill of the stairs and was injured. In an action by him against the factory owners for breach of statutory duty under s. 25 (2) of the Factories Act, 1937, by failing to pro-

ride a,n offectivc socoutl hand-ra,iJ, Held, The state of t)he meta, St&rip at tEz t.01) of tlro sta,irc?aso was not such a “ condition of the steps ” as to rct&r the staircase specially liable t,o accidents, and neither the proximity of the hatchway from which grease was issued nor the lone Instance of grease on the staircase constituted “special circumstances” suoh as to render the staircase specially so liable, within 8. 25 (2) of the Factories Act, 1937 ; accordingly the subsection did not require the factory owners to provide an effective second hand-rail and they were not in breach of duty under the sub-section. Appeal allowed. Harris v. HZ&J Portland C’ement Co., Ltd. [1955] 2 All E.R. 500. (CA.)

HUSBAND AND WIFE. Deserted Wife’s Right to Remain in Matrimonial Home :

Protecting the Weaker Vessel, 29 Australian Law Journa,l, 6.

INSURANCE. Policy-Condition-Breach of Condition--Onus of Proqf.

Condition 7 of an aircraft insurance policy provided that thr insured should duly observe the statutory regulations and directions relating to air navigation, and condition 8 provided that the observance and performance of the conditions of the policy by the insured were conditions precedent to the insured’s right to recover thereunder. The aeroplane insured under the policy crashed, and the owners claimed to be indemnified by t,he respondent, a Lloyd’s underwriter, who had subscribed the policy, for his proportion of the resulting loss and damage. In arbitration proceedings arising out of the claim, the respondent alleged breaches of condition 7 and of other conditions, and contended that the burden of proof that the conditions had been fulfilled rested on the claimants. Held, The burden of proof of breaches of conditions was on the respondent in accordance with the ordinary rule that the onus of proving a breach of a condition of an insurance policy which would relieve the insurer from liability in respect of a particular loss was, unless the policy otherwise provided, on the insurer; and the effect of condit)ion 8 of the policy was to give to the claimants obligations under conditions of the policy the quality of warranties, but not to alter the incidence of the burden of proof. (St&b&g v. Litierpool and London and Globe Insurance Co., Ltd., [1917] 2 K.B. 433, followed.) Bond Air Services, Ltd. v. Hill. [1955] 2 All E.R. 476 (Q.B.D.)

LANDLORD AND TENANT. Contract for Lease of Land Transfer Lalzd-Covenants to be

implied in Leases incorporated in Contract-Refusal by Owner to give Registrable Lease-Breach of Condition Precedent to Perform- ance of Contract-Laiuful Rescission by Tenants-Land Transfer Act, 1952, ss. 41, 115 (I), 164. A memorandum of lease, executed by the parties on April 22, 1952, purported to be a demise and 1Pase by the plaintiff company to the defendants of vacant land subject to the Land Transfer Act, 1952. The lease was not in a form to comply with the provisions of the statute, and was accordingly not registrable. It was provided, inter alia, that the lessees, within two years from the date of the lease, should start with the erection of a dwellinghouse of not less than 750 sq. ft. Clause 16 of the lease was as follows : “ 16. Such of the covenants powers and provisions implied in leases by virtue of any statute as are inconsistent with the express provisions hereof are to the extent of such inconsistency but not otherwise hereby expressly negatived.” On September 10, 1954, the defendants asked the plaintiff’s solicitors to have prepared and executed a lease of the land in registrable form. This was refused on the ground that the defendants were in breach of the covenant to start the erection of a dwellinghouse. On the plaintiff’s final refusal to give a registrable lease, the defendants, on November 10, 1954, repudiated the transaction and re- scinded the lease. On a claim against the defendants for a half- year’s rent due in advance on October 22, 1952, Held, 1. That the memorandum of lease was intended to create a leasehold estate at law of the land subject to it, and included therein, by virtue of 01. 16, were the covenants to be implied in leases by virtue of the Land Transfer Act, 1952. 2. That the plaintiff, as lessor, by the document, had covenanted to comply with s. 115 (1) of the Land Transfer Act, 1952, by giving the defendants a registrable lease ; and there was failure on tho plaintiff’s part in performance of his contract to create, in favour of the defendant, an estate of leasehold in the la,nd, because of the provisions of 8. 41 of the Land Transfer Act, 1952. (Waitara v. McGovern, (1899) 18 N.Z.L.R. 372, followed.) 3. That the plaintiff was not entitled to assert new and unilateral conditions for the performance of his obligations under the contract to give the defendants a leasehold estate ; and the defendants, as purported lessees, had, until registration .of a lease, only an

July 5, 1955 NEW ZEALAND LAW JOURNAL ..* 111

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LEGAL ANNOUNCEMENTS.

Continued from page i. BARRISTER ANU SOLICITOR (LL.M.) age 41, with experience in conveyancing, but interested in Court work, seeks position with a view to partnership.

“ COURT,”

OF NEW ZEALAND LIMITED C/o C.P.O. Box 472, WELLINGTON.

Messrs. H. 0. COONEY, L. D. LEES and D. S. COONEY hithert,o carrying on business under the name of Cooney, Jamieson & Lees of Willow Street, Tauranga, have pleasure in announcing that they have been joined in partnership by EUGENE DENIS MORGAN, LL.M. Thu practice will be carried on at the same address under the name of COONEY, JAMIESON, LEES & MORGAN.

f Or WELLINGTON DIOCESAN

LEGAL PRINTING SOCIAL SERVICE BOARD -OF EVERY DESCRIPTION-

SOLICITS the support of all Men and Women of Goodwill Memorandums of Agreements.

II

tOW8dS the work of t.he Board and the Societies effihated to the Board, namely :-

Memorandums of Leases. All Saints Children’s Home, Palmerston North.

Deeds and Wills Forms. Anglican Boys Homes Society, Diocese of WclIingtOn Trust Board

All Office Stationery. Anglican Boys Home, Lower Hutt Sedgley Home, Masterton

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COUNCIL CASES.

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July 5, 1955 NEW ZEALAND LAW JOURNAL

equitable title against the plaintiff and no protection against other dealing which could be registered against the land in priority to their interest. 4. That the creation of a leasehold estate by the plaintiff was a condition precedent to the performance of the contract, and the plaintiff’s failure in that regard gave the defendants the right to elect to treat the contract at an end, that they were lawfully entitled to rescind, and did rescind, the contract ; able by t,hem under it.

and that accordingly, no rent was pay- Landers Estate, Ltd. v. Bates and An-

other. (Auckland. February 18, 1955. A&leg-, SM.)

Notice to Quit-!l’enanc,y CL “ monthly one termkuble at the will of the landlord or of the tenmot b?y one month’s notice in writing “- Tenancy runnin~g ,from October 24-Notice to Quit served on Sep- tember ll-Words “ cd the will of” equivalent to “at any time “- ‘I’enmmj validly terminated-Property Law Act, 1932, s. 105. V. was t)he owner of a block of shops, one of which was occupied by the defendant company. The tonancy commenced on October 24, 1953, and the memorandum of tenancy provided as follows : “ Tho tenancy shall be a monthly one terminable at the will of the landlord or of the tenant by one mont’h’s notice ill writing.” Notice to quit was served on September 14, 1954, and expired, according to its wording, “ after the expiration of one calendar month from the receipt by you of this notice (but exclusive of the date of the receipt hereof by you) “. In an action for possession, Held, That, s. 105 of the Property Law Act, 1952, did not apply, since the parties by their agreement, had created the term of the t,enancy in which the words “ at, the will of” either party were equivalent to “ at any time”, so that either party could give one calendar month’s notice at ally time ; and accorclingl,v, the tenancy was validly terminated by t,he notice to quit. (Rckollum v. Burril31), (19lF] N.Z.L.R. 1050 ; [1916] G.L.R. GY3, applied.) (How v. Mansfield, [1925] N.Z.L.R. 91 ; [1924] G.I~.R. 570, Precious v. Reedie, [1924] 2 K.B. 149, and Dixon V. Bradford and District Railway Servants’ Coal Sul)iuly Society, [1904] 1 K.B. 444, distinguished.) (In ‘re !Phrelfall, EG parte Queen’s Benefit B&ding Society, (1880) 16 Ch.D. 274, H. & G. Simonds, Ltd. v. Heqwood, [1948] 1 All ISR. 260, and Bridge8 v. Potts, (1864) 17 (‘.B. (N.s.) 314; 144 E.R. 127, referred to. Crcpill Y. Normun Andrews, Ltd. (S.C. \Vanganui. April 2ti, 1955. Henry, J.)

LICENSING. Licence-Endorsenzelzt-JLlrisdiction-C’ondi~~o7~.s to be ful-

filled before Magistrate can exercise Jurisdiction to endorse Licence-Licensing Act, 1908? s. 247. Before a Magistrate may, under s. 247 of the Licensing Act, 1908, make an order endorsing a conviction on a publican’s licence, he must call for production of the Register of Licences or of certified copy of entrios in the Register relafing to the offender’s licence, and inspect the entries therein in relation to such licence or such copy thereof. These are conditions precedent to the accrual of the right to make an endorsement part of the sentence, and they must be fulfilled before the right to exercise the jurisdiction arises. (BuZZivcmt v. Irilson, (1894) 12 N.Z.L.R. 420, followed.) (R. v. Farmer, 118921 1 Q.B. 637, applied.) Section 244 of the Licensing Act, 1908, has no application to preclude an appellate Court from quashing an order for endorsement of a licence, unless it is sought to quash it for “ Want of form.” (Bullivont v. W&on. (1894) 12 N.Z.L.R. 420, and In re Kerrigan, (1914) 34 N.Z.L.R 45, referred to.) Gamble v. Ta$or. (SC. Invercargill. June 3, 1955. Henry, J.)

Offences-Evidence-After-hours Trading-Police Evidence relevant to Issue, and thus Admissible-Immaterial whether or not Such Evidence obtained US Result of Illegal Entry by Police on Premises. Evidence given by Police officers on charges relating to after-hour trading under the Licensing Act, 1908, if relevant to the matters in issue, is admissible, whether or not such evidence was the result of an illegal entry by them on the premises. (Iiurzcma Son ?f Kaniu v. The Queen, [lg.%] 1 All E.R. 236, followed.) Poke v. Hogg and Others. (Timaru. May 13, 1955. Willis, S. M.)

Offences--Person found on 1’romties after Clos%ng-hours- Bona fide guest of Real Lodger served with Liquor at Lodger’s hbpansc in Bar-No Offence--Licensing Act, 19OS, 8. 194. If a bona ,fide guest of a real lodger in licensed premises enters a bar to enjoy the hospit,ality of that lodger during hours in which the licensed premises are required to be closed, the guest, merely because of such entry, does not commit an offenoe “ with respect to the closing of licensed premises” within the meaning of s. 194 of the Licensing Act), 1908. (White v. Nestor, (1895) 13 N.Z.L.R. 751, applied.) (MacKenzie v. Harper, [1937] N.Z.L.R. ti72 ; [1937] G-.L.R. 451, refcrrod to.) Groorlfield v. Cruden. (SC. New Plymouth May 25, 1955. Barrowclough, C.J.)

Wholesale Licence-Licensing Control Commission-Need for Whole.~ale L&once to be considered by Commiusion primarily in Relation to Licensed Premises and Requirements of Public supplied therefrom-AppaaZ from Decision of Commission-Hearing de nova-Procedure at “ Distribution inquiry ” considered-licensing Act, 1908, R. X0-Licensing Amendment Act, 1948, ss. 13 (1) (e), 30, 31, 32, 65, G<5A-Licensing Amendment Act (No. Z), 196.3, 8. 26 (1). Each Iicence is for the benefit or convenience of a particular locality, and in respect of a wholesale lioence this is the primary consideration. Consequently, the question whether a wholesale licence is “needed” within the meaning of s. 31 of the Licensing Amendment Act, 1948, and the matters of convenience to the public and the requirements of the public set out in s. 35 to which the Commission must have regard, must be considered by t,he Commission, in respect of, inter alia, wholesale licences primarily in relation to the situation of the licensed premises and the requirements of the public ordinarily supplied from such licensed premises, though the locality served by a wholosalo licence may be, and usually is, much more ex- tensive than that served by a publican’s licence, having regard to the nature of the district or centre in which it is situated, means of aocess, and other peculiar features of a locality. (McKenzie v. Hogg, (1894) 13 N.Z.L.R. 158, and 1% re W. & C. Turnbull & Co’s. Application, (1903) 23 N.Z.L.R. 489; 5 G.L.R. 521, referred to.) An appeal from a decision of the Licensing Control Commission pursuant to s. 65~ of the Licensing Amend- ment Act, 1948 (as enacted by s. 28 (1) of the Licensing Amend- ment Act (No. 2), 1953) is to be heard de VXJVO and it is the duty of the Court to form an independent decision, and there is no presumption in favour of the decision against which the appeal is brought. (Alford v. Licensing Control Commission, [1954] N.Z.L.R. 479, approved.) Quaere, Whether the legislation dealing with the cancellation of unnecessary licences contained in s. 30 ,st Sep., of the Licensing Amendment Act. 1948, should be regarded as of a confiscatory nature or whether it should be regarded as remedial in the sense of endeavouring to effect something which the Legislature deemed to be for the public good. Observations as to t’he procedure to be adopted at a “ distribution inquirv ” by the Licensing Control Commission under s. 30 of the Licensing Amendment Act, 1948. Embassy Liqueurs, Ltd. v. Licensilzg Control Commission. (SC. Full Court. Wellington. March 4, 1955. Barrowolough, C.J., Stanton, Hutchison, McGregor, JJ.)

NUISANCE. Adjoining Premises-Roots of Trees causing Damage to Neigh-

bow’s House--Remedy of Injunction-Continuing Damage. The plaintiff and the defendants were tenants of adjoining house properties. The defendants’ house had been built in 1904 and the plaintiff’s in 1912. On the defendants’ property, at a distance of some twenty feet from the plaintiff’s house, was a black Italian poplar tree which was already well established before 1912, and, at a distance of between six and eight feet from the boundary, between the two properties, there was a row of Lombardy poplars, which were planted in 1912 after the plaintiff’s house was built. In and since 1948, the plaintiff’s house underwent considerable settlement causing damage to it. The roots of the poplar trees growing on the defendants’ land had extended under the plaintiff’s land and caused the subsidence by undermining the foundations of the plaintiff’s house, or by withdrawing the moisture underneath the foundations so as to cause the clay soil to shrink. In 1949, the plaintiff’s house was underpinned in order to remedy the subsidence. In August, 1950, the plaintiff brought an action for damages for trespass and nuisance and for an injunction. In 1953, further settlements having occurred, a specification of necessary work to the plaintiff’s house was prepared, but the work had not been begun before the trial. On the question whether the plaintiff was entitled to an injunction and on the question of damages, Held, 1. The encroachment of the roots of the poplar trees into and under the plaintiff’s land, and the abstraction of water from the soil by the roots, constituted a continuing nuisance for which the remedy of injunction would lie. (Middleton v. Humphries, (1913) 47 I.L.T. 160, and dictum of Lewis, J., in Butler v. Standard Telephones and Cables, Ltd., [1940] 1 All E.R. 121, 130, applied.) 2. Damages for the further damage which occurred after the issue of the writ were recoverable in the action in so far as the damage resulted from the same continuing nuisance, and the plaintiff would be put to his election whether to have judgmont for the sum claimed for damages before action brought or an inquiry as to damages sustained. McCombe v. Read and Another. [1955] 2 All E.R. 458 (Q.B.D.)

PRACTICE. Coats-Action for Damages against Two Defenda&-Each

Defendant Claimiry Indemnity or Contribution from the Other-


Plaintiff succeeding Against One Defendant only and for Amount Much Less than as Claimed-Imidence of Costs-Form of Order made-Code of Civil Procedure, RR. 61, 99r;. In an action in which the plaintiff claimed g&730 Is., as damages for negligence, against two defendants, each defendant served on the other a notice under R. 99N of the Code of Civil Procedure, claiming an indemnity or contribution. By the verdict of the jury, the plaintiff failed against the first defendant and succeeded against the second defendant. An issue regarding contributory negligence was answered in favour of the second defendant, and the plaintiff’s share in the responsibility for the accident was fixed at 33Q per cent. The plaintiff claimed the sum of $5,730 1s. as general and special damages, but he recovered the sum of $1,820 OS. 8d. only. On the question of costs, Held, 1. That the successful defendant was entitled to his costs as against the plaintiff on the amount of the claim, and not on the basis of the amount recovered. (Ronaldson v. Rankin, [1948] N.Z.L.R. 850; [1948] G.L.R. 223, followed.) (Motley v. Elliott, [1930] N.Z.L.R. 190, distinguished.) 2. That, on the facts of the present c8se, the plaintiff was entitled to reoover from the unsuccessful defendant his own costs as the plaintiff on the basis of the amount recovered, and plaintiff was also entitled to recoupment of a proportion of the costs payable to the sucoess- ful defendant, such proportion to be the amount which would have been payable according to scale in an action for the amount recovered by the plaintiff. (Besterman v. British Motor Cab Co., Ltd., [1914] 3 K.B. 181, Hong v. A. & R. Brown, Ltd., [1948] 1 K.B. 515; [1948] 1 All E.R. 185, and Donvuan v. Cammell Laird and Companny, [1949] 2 All E.R. 82, considered.) (Public Trustee v. Auckland Electric-Power Board, [I9441 N.Z.L.R. 782 ; [1944] G.L.R. 357, referred to.) An order was accordingly made : (a) that the successful defendant was entitled as against the plaintiff to costs according to scale on the basis of the amount claimed (&5,730 1s.) ; (b) that the plaintiff was entitled to an order against the unsuccessful defendant for his own costs as the plaintiff on the basis of the amount recovered (f1,820 OS. 8d.), and (c) that the unsuccessful defendant had to pay the plaintiff a proportion of the costs the plaintiff had to pay to the successful defendant, such proportion to he the amount that would have been payable according to scale in an action in which aEl,820 OS. 8d. was recovered. Norwood v. Pokaka Timber Co., Ltd. and Another. (S.C. Hamilton. June 8, 1955. North, J.)

Trial-Verdict of Jury-Majority of Nine to Three on Issue of Contributory Negligence-Majority of Eleven to One on Issue as to Plaintiff’s Share in Responsibility-Verdict not Inconsistent. A jury returned a majority verdict in each of eight questions put to it as issues in an action for damages a,rising out of alleged negligence Issue 2 (d) was as follows : <‘ Was the plaintiff himself negligent in a manner causing or materially contributing to the accident in the following respect: . . . (d) In failing to exercise proper care in using the circular saw ? ” The jury’s answer was “ Yes” (by a majority of 9 to 3). 111 assessing damages, the jury assessed the plaintiff’s share in the responsibility for the accident at 334 per cent. (by a majority of 11 to I). On cross-motions for judgment and the plaintiff’s motion, in the alternative, for a new trial, it was contended that there was inconsistency between the answers to Issue 2 (d) and 4, and that ths two answers could not stand together. Held, That the two jurors were not guilty of any impropriety, and the verdict did not show inconsistency between the two answers : The three jurors, who were of opinion that contributory negligence had not been established, were still perfectly free to take part in the further deliberations on Issue 4 and in due course to exercise their vote ; and it must be assumed the two jurors who added the weight cf their votes to those of the majority in the answer to Issue 4, did so on the basis that they were obliged to accept the decision of the majority on the question of the existence of contributory negligence, and that they were still free to reach a unanimous conclusion, if they could, on the percentage which, on that basis, ought to be deducted from the damages already fixed. The judgment is reported on this point only. Jennings v. Haines. (S.C. Hamilton. June 16, 1955. North, J.)

PUBLIC HEALTH. Food Hygiene-Application for Registration of Shop for Sale

of Food-Requisition by City Corporation’s Chief Sanitary In- spector as to Work to be done, in compliance with Regulations, before Issue of Licence approved-Appeal by Shop-keeper to Medical Officer of Health declined-Application to Magistrate on Appeal against such Refusadlnspector’s Requisition not a IL decision ” under Regulations-No Primary Right of Appeal to Medical Officer of Health-Appeal to Magistrate not available-- Food Hygiene Regulations, 1952 (Serial No. 1962/74), Reg. 68. The jurisdiction of a Magistrate, under Reg. 68 (2) of the Food Hygiene Regulations, 1952, to hear an appeal from a decision

of the Medical Officer of Health depends on the existence of a primary right of appeal under Reg. 68 (1) to that Officer. Con- sequently, such appeal to a Magistrate does not lie where the decision of the Medical Officer of Health was the declining of the hearing of an appeal from a requisition of a Chief Sanitary Inspector, who, upon the receipt of an application for registration of a shop to sol1 food, required the shopkeeper applicant to comply with the Food Hygiene Regulations, 1952, before his application would be considered, as the Inspector’s requisition was not a “ decision or requirement of an Inspector ” on a matter placed by the regulations within his discretion. In re Tonson. (Wellington. May 11, 1955. Thomson, SM.)

RABBIT DESTRUCTION.

Rabbit Board-Classification for Leoying of Rates-Method of Classificatio-“ Pieces of Land “-Rabbit Nuisance Act, 1928, s. 67-Rabbit Nuisance Amendment Act, 1953, s. 8. A Rabbit Board is given a discretion either to rely solely on the power given by s. 65 of t,he Rabbit Nuisance Act, 1928, to levy a general rate thereunder, or, alternatively, to levy a general rate on a graduated scale according to a classification msde under s. 67 (as enacted by R. 8 (1) of the Rabbit Nuisance Amend- ment Act, 1953). When a Board elects to adopt the latter procedure, it is bound by s. 67 (2) to classify all the land in its district in terms of s. 67 (3), under which it may, having regard to the degree of infestation thereof, and, at the discretion of the Board, having regard to the other matters mentioned in subs. (3), classify the whole land of a ratepayer in one class, or any portion of his land in one class and another portion in another class. (Palmerston North-Kairanga River Board v. Mayor, etc., of Palmerston North, (1913) 33 N.Z.L.R. 613, applied.) The words “ different pieces of land “, used in s. 67 (3) refer to the separate portions of land of the same ratepayer, as well as to the different pieces of land, regarded as a whole, of each ratepayer in the Board’s district. Although the degree of infestation among the different pieces of land is the primary consideration to be given by a Rahbit Board in making its classification, yet so long as it uses its discretionary powers under s. 67 (7) reasonably, it can remove any piece of land from a lower class to a higher class, or tica wersa, so that the whole of the land of any ratepayer may be ultimately in ono class, whether or not he has almost cleared patches on it. (This must be the position when the Board in the first year or so commences its operations in a district, and is not in a position to say that any portion of an area is free of rabbits.) In re Orawia Rabbit Board. (Invercargill. January 18, 1955. Dobbie, S.M.)

RATES AND RATING. Valuation Roll-Annual Value-Award limiting Amount of

Rent chargeable to Worker-Premises valued at Higher Rental Value-Comparative Rentals in Valuation District not Subject to or limited by Restriction placed on Individual Letting of Any Particular Premises-Rating Act, 1925, s. 2. An award provides that if any employer provides a worker with living accommodation of a certain minimum standard, such employer may not deduct more than 15s. a week from the worker’s wages as rent, or charge the worker more than that sum as rent. Each of the owners of two premises had let such accommodation to caretaker employees at the maximum rent allowed by the award. The City Valuer assessed the annual rental value of the premises so occupied at E62, being equivalent to a hypothetical weekly rental of $1 10s. On objections by such owners, Held, 1. That, by its own election or choice, and for its own benefit, the owner of the premises in each ease had selected a particular Glass of person as its tenant, and it was prepared to take a less rental than a hypothetical tenant might reasonably be expected to pay by reason of the value of the premises. 2. That the comparative rental value of one property with another in any rating district cannot be subjected to or limited by any restriction placed on an individual letting of any particular premises by reason of some special circumstance peculiar only to the parties to that letting, ss distinct from restrictions relating to the property itself. The objections were accordingly dismissed. In re P&em&o Collieries, Ltd. : In re Queen’s Arcade, Ltd. (Auckland. May 17, 1955. Wily, S.M.)

Valuation RolLAnnual Value-Rent of Dwellinghouses subject to Restrictions of Tenancy Act, 1948-Annual Value Assessed in Excess of Rent received by LandlorGAnnual Value to be assessed on Basis of New Valuation not on Existing Qovern- merit Valuatiolz-Value of Fee-simple not subject to any Deduc- tion on Account of Tenancy subject to Tenancy Act, 1948- “ Rateable Value”-Rating Act, 1925, ss. 2, 8 (4). The fair

July 5, 1955 NEW ZEALAND LAW JOURNAL V

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July 5, 1955 NEW ZEALAND LAW JOURNAL 183 - ~~~.... ____

rent thst is fixed mlder the Tammcy Act, 1948, cannot bo taken as t~ho am~ual rahle for t,he purl~oses of thc Rating Act, IUS, as tho considerations affectfling the real tenant, under tho f’irst- named Stat&e do not apply to the hypothetical tenant under the Rating Act, 1925. (Dunedin City Corporation v. Young, [1941] N.Z.L.R. 959; [1941] G.L.R. 407, applied.) The provision in para. (a) of the definition of “ Rateable value ” in s. 2 of the Rating Act, 3925, as to valuations on the annual value, which is in no case to be “ le4s than five per centum of the value of the fee simple thereof” requires that a new valuat,ion of the fee simple of property must be made, and used, if necessary, not only as a check to such rateable value but also to increase that value if needs be ; and that, consequently, such five per centum is not to be calculated on the existing Government valuation of the property. (In re the Rating Act, 19OS, and Re Baigent, (1920) 15 M.C.R. 62, disagreed with.) As t,he basis of valuation on the annual value is the value of the estate or interest of the owner therein, and a weekly or monthly tenant, &s such, has no estate or interest in the lend, the whole of the value of the fee simple should be assessed against the owner of the property, without any rebate or reduction by reason of the fact that the property is let t,o a tenant who is protected under the Tenancy Act, 1948. (Findlay v. Valuer-General, 119,541 N.Z.L.R. 76, applied.) Graham and Others v. Mt. Eden Horollgh Council. (Auckland. April 21, 1955. Wily, S. M.)

RIVER. Accretion to Land-Building up of Lnn.d sot wholly due to

Accretion, m MGjor Portion thereof due to Artificial Works- Certificate of Title not to be issued ezcept in Respect of True Accre- tion-Notice of Application for such Certificute of Title to be given to Attorney-General and River-Board-“ Navigable “-Coal-mines Act, 1925, s. 200. - Land Transfer-River-bed-Accretion to Land-Certz@icate of Title to be limited to True Accretion-S,uch Title not to issue without Notice to Attorney-General and River- Board-Duties of District Land Registrar in Respect thereof indicated-Land Transfer Act, 1952, s. 81. The respondent was the owner of an area of land bounded by the Waiwhetu Stream. She applied to the District Land Registrar for an amendment of her certificate of title so as to include therein an area of about, a quartor of an acre, which, she claimed, had been added to her land by accret,ion. The District Land Registrar intimated that he proposed to accede to this application, but he refrained from doing so when the present action was begun. The Attorney- General and the Hutt River Board sought a declaration that the fee-simple t,itle to the stream-bed was vested in the Crown, and that the building-up of the portion of the stream-bed mentioned was not due to accretion but was the result of artificial works ; and an order restraining the defendant from applying for the issue of a Land Transfer title in respect of such land. The Attorney-General and the River-Board contended that the stream w&s vested in the Crown under s. 206 of the Coal-mines Act, 1925, and that the area of the land in question had not been formed by accretion, but, in part, by actual reclamation. The learned trial Judge held that accretion had not been established, except as to approximately one-quarter or one-third of the area claimed. (In the Court of Appeal, all parties accepted that finding.) The learned trial Judge gave judgment for the defendant. The Attorney-General and the Hutt River Board appealed. Held, by the Court of Appeal, That the building up of that portion of the Waiwhetu Stream claimed by the respondent riparian owner was not wholly due to accretion, but was, as to the major portion thereof due to artificial works. Held, by the Court of Appeal, (Fair and Stanton, JJ., Adams, F. B., J., dissenting), 1. That the limited nature of the respondent’s intarest as riparian owner, in the stream-bed, arising in part from artificial reclamation, should not be converted into the full and indefeasible title indicated by a certificate of title, except for some cause such as true accretion which is capable of altering legal rights. ( Attwney- General of Southern Nigeria v. John Halt and Co. (Liverpool), Ltd., [I9151 A.C. 599, applied.) 2. That the respondent was not entitled to the issue of a certificate of title for the land claimed by her; but this determination wa8 without prejudice to her right to apply for and obtain a certificate of title for so much of the land as she might be able to show had been built up by accretion ; and that notice of any such application was to be given to the Attorney-General and the River Board. Sew&, per curium, 1. That it is desirable that, in all cases where application is made to the District Land Registrar for the addition of any portion of the bed of a stream to a riparian owner’s title, notice of such application should be given to the Crown and to any River Board exercising jurisdiction over the stream. 2. That the practice of inserting in a certificate of title for land bounded by a stream a statement as to whether the riparian owner is entitled to the bed of a stream to its middle line is not a suitable one for New Zealand, having regard to established

practice, t,he provisions of s. 206 of the Coal-mines ;\ct., 1925, t’ho provisions of the River Boards Act, l!JOY, and the possibility of difficulties arising out of s. 35 of hhe Crown Grants Act, 1908, as t,o “ creeks”. (In re White, (1927) 27 N.S.W.S.R. 129, referred to.) Observations and discussion as to the meaning and operation of s. 206 of the Coal-mines Act, 1925, and of the word “ navigable ” therein. Appeal from the judgment of Hutchison, J., allowed. Attorney-General, Ex rel., Hutt Rive, Board, and Hutt River Board v. Leighton. (S.C. & C.A. Welling- ton. December 17, 1954. Fair, Stanton, F. B. Adams, JJ.)

TENANCY. Du~ellinghouse-Rent-Twelve Months’ Notice by Landlord of

In&ration to take Further Proceedings for Possession-Tenant thereafter sending Key to Landlord by Posh-No Liability for Rent on Cessation of Statutory Tenarwy by Acceptance of Key by Land- lord-Tenamy Act, 1945, s. 25. In May, 1952, a tenant’s contractual tenancy was determined by a notice to quit, and in August, 1953, another notice to quit was served. The tenant successfully resisted three actions for possession. In October, 1954, after the last of such actions, the landlord gave the tenant a notice under the second proviso to s. 25 of the Tenancy Act, 1948, i. e., a twelve months’ notice of intention to take further proceedings. On February 24, 1955, the tenant sent the key to the landlord by post. The premises were relet on March 10. The landlord claimed, inter alia, in lieu of notice, rent up to the date of t,he re-letting. Held, That the statutory tenancy ceased when the key was handed over and accepted by the landlord, and there was thereafter no liability for rent. (Brown v. Draper, 119441 K.B. 309; [1944] 1 All E.R. 246, and Boyer v. Warbey, [1963] 1 Q.B. 234; 119531 1 All E.R. 269, applied.) (Searle v. Pumell, [1952] N.Z.L.R. 95; Cl9521 G.L.R. 94, referred to.) Stewart v. Large. (Wellington. April 22, 1955. Thomson, S.M.)

TRANSPORT.

Parking Signs--Claw D Sign-Requirements as to Notice of Time and Place of Prohibition or Restriction of Parking-Letters ” NP” Operative Portion of Sip-Immaterial Whether Explan- ation of Place above Other of Them, {f Both directly below Operative Portion-Traffic Sign Regulations, 1937 (Serial No. 1954/180 (Reprint) ), Regs. 2 (SD), 2 (5E), 3 (4) (iii), 3 (15) (d) ; Schedule, Diagram 5B-Traffic Regulations, 1936, (Serial No. 1936186) Regs. 4 (7) (c), 4 (7) (0). Where it is desired to make it an offence to disobey any indicated prohibition or restriction of parking in a roadway, the limits of the area of prohibition or restriction of the parking of vehicles must be indicated clearly and without ambiguity ; and, in the words of Reg. 3 (4) (i) of the Traffic Sign Regulations, 1937, the indication or notice erected must be such as to “ give reasonable notice” to a person or persons affected, or who might be affected, of the place where such prohibition or restriction has been duly imposed. (Keller Y. Dallison, [1953] G.L.R. 115, referred to.) The operative portion of a sign of Class D in the Schedule to the Traffic Sign Regulations, 1937, is the notice prohibiting parking (“ NP”). The explanation as to permissible hours is a reasonable notice to the public of the extent in time of the prohibition. The arrow on the sign is an explanation of place. It is immaterial which explanation is placed above the other, if they are placed directly below the operative portion of the sign. Hollander v. Lunn. (S.C. Christ- church. May 23, 1955. McGregor, J.)

VENDOR AND PURCHASER. Land Settlement Promotion-Undue Aggregation-Principles

applicable-Questions of Public Interest and of Use to which Additional Land to be put of Vital Importance-Differing Stand- ards applicable to Furchasers-Use of Land for Growiilzg Asparagus for Canning Purposes in. Public Interest-Land Settbment Promo- tion Act, 1952, s. 29 (1). The question whether a proposed purchaser has sufficient land for his or its own support, is not necessarily the determining factor in considering whether or not there is “ undue aggregation ” within the meaning of s. 29 (1) of the Land Settlement Promotion Act, 1952 ; but the questions of public interest and the nature of the use to which the land is to be put are of vital importance. In determining whether the acquisition of a particular piece of farm land is to be deemed excessive, regard must be had to the position of the purchaser and to the operations which the purchaser carries out and intends to carry out. Precisely the same standards are not necessarily applicable to every purchaser. The proposed purchaser, a company, owned sufficient land to enable it to operate succesa- fully and to pay adequate dividends to its shareholders. It intended to devote the land, which comprised 19 BCI%S, to the growing of asparagus for canning purposes, for which there WBB a demand. On appeal from a Land Valuation Committee’s refusal of consent to the proposed sale, Held, allowing to the


tho aoueal, That it had not beon shown that, the land in question perts operating over fairly large areas, and that, if consent to tho L1

WS,S an economic unit, or t,hat t,hc anl)ellnnf had SOUz! v ht t,o increase iroposod sale ‘&w rcfuscd, tl& land might be sold to somebody 1 I

its holdings of land since 1942 ; that the use of the land for the proposing to USC it for a purpose less desirable in tho public

specialized growing of asparagus for canning purposes was in the interest than the growing of asparagus for canning purposes.

public interest, the weight of evidence supported the view that (1% re a Proposed Sale, Maginniss to Mundy, [1955] N.Z.L.R. 58, distinguished.) 1n re A Propwed Sale, Orowcott to Asprap,~,

asparagus could best be produced for canning purposes by ex- Ltd. (L. V. Ct. Napier. May 27, 1955. Archer, J.)

LOANS ON EXPECTANCIES OR REVERSIONARY INTERESTS.

By E. C. ADAMS, I.S.O., LL.M.

De Quincey, the famous English essayist, whose vivid word-pictures, such as those of Ann of Oxford Street and the terrible Malay who haunted him in his dreams, have rarely been excelled in the English language, found insuperable difficulty in raising a loan on his expectations. Seventeen years previously he had walked the streets of London with Ann of Oxford Street, the friendless girl who had saved his life on one occasion, but who had then passed out of his life, and been. lost to him ever since. De Quincey could write match- less prose like this :

Suddenly her countenance grew dim; and turning to the mountains, I perceived vapours rolling between us ; in a moment all had vanished ; thick darkness came on; and in the twinkling of an eye I was far away from mountains, and by lamplight in London, walking again with Ann-just &s we had walked, when both children, eighteen years before, along the endless terraces of Oxford Street’.

And, finally, the mighty climax of his dreams, whilst under the influence of opium :

Then, like a, chorus the passion deepened. Some greater interest was at stake, some mightier cause, than ever yet the sword had pleaded, or trumpet had proclaimed. Then came sudden alarms; hurrying6 to and fro, trepidations of innumerable fugitives, I knew not whet,her from the good cause or the bad ; darkness and lights ; tempest and human faces ; and at last, with the sense that all was lost, female forms, and the features that were worth all the world to me ; and but a moment allowed-and clasped hands, with heart- breaking partings, and then-everlasting farewells ! And, with a sigh such as the caves of hell sighed when the incestuous mother uttered the abhorred name of Death, the sound was reverberated-everlasting farewells and again and yet again reverberated-everlasting farewells.

And the same eloquent De Quincey, who in his Reminis- cenceS of the Lake Poets wrote the most interesting and revealing account of Wordsworth, Coleridge, and Southey, could not get a loan on his expectations. In a Life of De Quincey, published in 1877, we read that once when a young man he took a fruitless journey to Eton on the top of the coach, “ in the hope of gaining Lord Westport’s aid to negotiate an advance on security of his expectations.” He rode outside because he could not at that time afford to take an inside place in the coach. One judges, however, from the advertisements which often appear in English legal periodicals, that nowadays people in England have more facilities of borrowing on their expectant interests in trusts inter vivos or under wills. (By expectant interests I do not mean to include a mere spes successionis.) We never see this type of advertisement in our New Zealand periodicals, and I suspect that this branch of money- lending has not yet been fully developed in New Zea- land ; it will probably grow as our population grows,

With the increase in expectation of life, due to ad- vances in medicine and surgery and our improved knowledge of the laws of hygiene, and our more temperate mode of living, life tenants these days often take an unconscionable time in dying, and remaindermen often like to partake of what they have inherited whilst they are still young and active enough to enjoy it, for example, to take a trip to the Mother Country. Provided the terms of the loan are not too harsh-and those which the writer has had experience of were not in any way harsh-the contract is advantageous to both parties. As the mortgagee usually has to wait for the death of the life tenant before he gets his money back, the mort- gagor cannot reasonably expect the same low rates of interest as, say, on a first mortgage of freehold land.

These mortgages are often in popular speech called ” loans on reversions.” In a little English book, which I have before me, published by Butterworths, it is pointed out that the value of a reversion is an actuarial matter. Owing, however, to the increased expectation of life in New Zealand, it would not be prudent to calculate the value of life interests in the manner of the Stamp Office, which adopts the Carlile Tables based on an income-producing rate of 5% per annum : a friend of mine in the legal world suggests that one should always presume that the life tenant will attain the century mark.

In Hints for Young Solicitors and Articled Clerks, 2nd Ed., 18, it is stated that reversionary loans are thus a rather specialised type of security :

Neither type is, of course, a trustee investment unless specially authorized, and the lender’s Solicitor should remember that his duty is usually to investigate the borrower’s title and mot advise on the amount of the advance and ade- guacy of the security.

I am afraid, however, that, in New Zealand, the intended mortgagee will want his solicitor to advise on a safe margin for investment and generally as to the Ladequacy of the advance.

The solicitor acting for the mortgagee should get into touch with the solicitors to the trustees and obtain a list of the assets and liabilities of the trust. I f the liabilities are great, much caution is necessary : if, on the other hand, there are no debts, the position is much clearer and safer : any valuation of the assets which the solicitors to the trustees may proffer should be checked as carefully as possible. obsolete.

The valuation may be The nature of the assets should also be

weighed and considered. If they are of a speculative or hazardous nature, one will require a very wide margin

July 5, 1955 NEW ZEALAND LAW JOURNAL 185

of safety. On the other hand, if they are authorized investments for trustees by virtue of the Trustee Act, 1908, so much the better and so much less the risk. Inquiries should also be made, as to whether any gift or death duty is outstanding. If there is considerable realty involved, it may be advisable to obtain a new valuation by a competent valuer.

As to the other vital matter, the investigation of the borrower’s title, this also requires the greatest care, for rarely will one get a State-guaranteed Land Transfer mortgage for the mortgagee. If the interest to be mortgaged is an interest in the residue, there may be payable on the death of the life tenant pecuniary legacies, which will naturally take priority over any interest in t,he residue ; and remember the pecuniary legacies may carry interest, as in Percival v. Commzssioner of Stamp Duties, [1932] N.Z.L.R. 1285; G.L.R. 652, and see Garrow’s Law of Wills and Administration, 2nd Ed., 291, thus depreciating, perhaps considerably, the expectant value of the residue.

The trust instrument must therefore be carefully examined, and, if necessary, construed. Find out also if its interpretation has been before the Supreme Court. Again, if a testamentary trust, it may have been varied by order of the Supreme Court in proceedings under the family Protection Act, 1908 : if so, the will must be read in conjunction with the order of the Court, as if it were included therein.

Gifts under trusts may be indefeasibly vested, or vested but subject to being divested, or contingent. Unless the gift is indefeasibly vested, the solicitor to the proposed lender should not advise him to lend his money, unless those entitled on default also join in as mortgagors. That was the position in the following two precedents : A.B. was getting t#he loan, and, therefore, the principal debtor, his interest being contingent on his surviving the life tenant : the other parties who signed the mortgage took, if A.B. did not survive the life tenant.

Contingent remainders have always troubled law students and law.yers. Thus one hundred and twenty- five years ago we find Charles Lamb, an even more famous essayist than De Quincey (and one of De Quincey’s friends) in a witty letter dated 1829, referring to that classic text-book Feame’s Contingent Remainders : in this letter, Lamb asked for legal advice of a friend, one Procter :

My brother’s widow left a will, made during the lifetime of my brother, in which I am named sole executor, by which she bequeaths forty acres of arable property, which it seems she held under covert baron, unknown to my brother, to the heirs of Elizabeth Dowden, her married daughter by a first husband, in fee simple, recoverable by fine ; invested property, mind, for there is the difficulty ; subject to leet and quit rent; in short, worded in the most guarded terms, to shut out the property from Isaac Dowden, the husband. Intelligence has just come of the death of this person in India, where he made a will, entailing this property (which seemed tangled enough already) to the heirs of his body, that should not be born of his wife ; for it seems, by the law in India, natural children can recover. They have put the cause into exchequer here, removed by cerliorari from the Native courts ; and the question is, whether I should, as executor, try the cause here, or again remove it to the Supreme sessions at Bangalore, which I understand I can, or plead a hearing before the privy council here. As it involves all the little property of Elizabeth Dowden, I am anxious to take the fittest steps, and what may be least expensive. For God’s sake assist me, for the ease is so embarrassed that it deprives me of sleep and appetite. Mr. Burney thinks that there is a

-

case liko it, in chap. 170, sec. 5, in Feame’n Cm/iwgent Kc- mindem. Pray road it over with him dispassionately. and lot me have the result. Tho complexity lies in the quost,ionable power of the husband to alienate WI, uszmrn ; cnfeoffments whereof he was only collaterally seised, etc.

The power “ to alienate in u8um ” was, to put it mildly, “ questionable ” ; it appears to have been a case of, so far as the husband is concerned, Nemo c&t, quod non habet ; and there never was such a case in Fearne. The New Zealand lawyer never has had to worry about land being subject to l.eet and quit rent, and now that the Hon. H. G. R. Mason, Q.C., has persuaded Parliament to abolish estates tail in New Zea- land by transforming them automatically into estates in fee simple, we have none of these “ entangled ” _ entail problems to solve. The letter is really a humorous skit on the ponderous terminology of the law of real property in Lamb’s day. In a note to this letter by Serjeant Talfourd, one of Lamb’s executors, the reader is informed that the Mr. Procter, to whom the letter was written, “ so prosperously combines conveyancing with poetry.” Talfourd goes on to say that the letter “ is a fair sample of Lamb’s elaborate and good-natured fictions “. In short, the letter was a hoax.

If the solicitor for the intended mortgagee is satis- fied that the borrower has something worth mortgaging both as to title and as to value, and that all other necessary parties, if any, are prepared to join in the mortgage, he can proceed to draw the mortgage. If the borrower is a married woman, be certain that her interest is not subject to restraint on anticipation : there are still some of these in existence under old wills or settlements : Barrow’s Law of Real Property in New Zealand, 4th Ed., 111. Also be sure that the interest of the borrower is not subject to the restriction against alienation imposed by s. 33 of the Property Law Act, 1952 ; or that it is not liable to forfeiture, for example, upon bankruptcy or attempted alienation or charge, in which latter case the mortgage would merely extinguish the borrower’s interest and the mortgage would be of nothing -as insubstantial as the interest of Lamb’s brother in his wife’s entail : re Longman, [1955] 1 All E.R. 455.

Before lending the money, it is desirable to ascertain from the trustees’ solicitors, as to whether or not they have had notice of any prior charges. It is also good practice to obtain from the borrower a statutory declaration that he has not encumbered his beneficial interest in the will or trust inter vivos, and has not been adiudi- cated bankrupt ; a suitable form of declaration will be found in Goodall’s Conveyancing in New Zealand, 2nd

Ed., 290. In some cases proof of the beneficiary’s interest should be given, with statutory declarations of pedigree supported by birth, etc., certificates. A declaration as to pedigree will be found in Goodall, lot. cit., 280.

If the borrower is a devisee or has a beneficial estate in land by virtue of a trust instrument inter vivos, then it is advisable to lodge a caveat, if, as it is probable, the land is subject to the Land Transfer Act : such a borrower has a caveatable interest ; In v-e Bielfeld, (1894) 12 N.Z.L.R. 596. If the interest is a pecuniary legacy (as in the precedents hereunder) or a share in residue, the probability is that the borrower has not a caveatable interest : Guardia,n, Trust, and Executors Company of New ZeaZand, Ltd. v. Hall, [1938] N.Z.L.R. 1020 ; [1938] G.L.R. 516 ; Stannus v. Commissioner of Stamp Duties, [1947] N.Z.L.R. 1 ; [1946] G.L.R. 448.


If the borrower is a tlevisee or has an equitable estate in the lalltl untlcr a tjrnst, in&/. flcivoa, anal the t,rrlstees are “ bare trustees ” (as in Pickering v. lxrd, [1937] N.Z.L.R. 19, sub nom. 1~ re Going, Pickering v. lzard, [I9371 G.L.R. 26), steps should be taken t,o get the trustees to transfer the legal estate to the life tenant for life with remainder to the remainderman (the borrower). This mill enable a certificate of Ctle to be issued in favour of the life tenant, and the mortgage by the remainderman will be registrable against such certificate of title. The mortgage should contain a power-of-attorney clause authorizing the mortgagee in the name of the remainderman to apply by transmission for a certificate of title in fee simple in possession on the death of the life tenant.

Perhaps the most important part of the procedure is to notify the trustees, in writing, of the execution of the mortgage, as soon as it has been executed. This is most essential, in order to preserve the mortgagee’s priority, and should never be neglected under any circumstances.

PREcIGDENT No. 1.

M~I~TGACIE OF INTEREST UNDER WILL BY CONTISGENT Re-

THIS DEED lnade the day of One thousand nine hundred and fifty-five BETWEEN A. B. of Wanganui Married Woman C. D. of Wanganui Married Woman and E. F. of Wanganui Married Woman (hereinafter with their executors administrators and assigns referred to as “ the Mortgagors “) of t‘le one part and The Limited (a Company duly incorporated and having its Registered Office in the City of Wellington, and hereinafter with its successors and assigns referred to as “ The Mortgagee “) of t,he other part WHEREAS the Mortgagors are each entitled to a certain interest in the e&ate of the late G. H. deceased under the provisions of his Will Probate whereof w&s granted by the Supreme Court of New Zealand at Wanganui on the t,wentleth clay of h’ovember, One thousand nine hundred and fifty-two AND WHEREAS the Mortgagee has agreed to lend and advance to the Mortgagors the sum of Seven hundred and Sixty pounds (c760) together with interest thereon secured in manner hereinafter appearing Now THIS DEED WITNESSETH that in pursuance of the said Agreement and in consideration of the sum of Seven hundred and Sixty pounds (g760) now paid by the Mortgagee to the Mort,gagors (the receipt whereof is hereby aoknowledged) the Mortgagors and each of them Do HEREBY ASSICPI' TRANSFER AND SET OVER unto the Mortgagee all of those the shares and interests of the Mortgagors and each of them of and in all the assets forming the Estate of the said G. H. deceased to hold the said shares hereby assigned unto the Mortgagee absolutely subject to the proviso for redemption hereinafter containecl PROVIDED ALWAYS and it is hereby expressly declared that if the Mortgagors shall on the due date thereof pay the said sum of Seven hundred and Sixty pounds (f760) with interest thereon in the meantime in accordance with their covenant in that behalf hereinafter contained the Mortgagee at any time thereafter at the request and cost of the Mortgagors will re-assign the property hereby mortgaged to the Mortgagors or aa they shall direct AND the Mortgagors jointly and severally hereby covenant with the Mortgagee as follows :-

1. THAT they will pay to the Mortgagee the above sum of Seven hundred and Sixty pounds ($760) TOGETHER with any accrued or accumulated interest thereon on the 1st day of Sep- tember, 1960 or on the expiration of one calendar month from the date of the death of I. J., the widow of the said G. H. deceased, if the said I. J. shall die prior to the said 1st day of September, 19GO.

2. THE Mortgagors shall pay to the Mortgagee interest on the said sum of Seven hundred and Sixty pounds ($760) or such smaller or larger sum as may from time to time be owing hereunder at t,he rate of Eight pounds (!23) per centum per annum (reducible as hereinafter appearing) by quarterly payments on the first days of January, April, July and October in each year so long as any moneys remain owing hereunder computed from the day of One thousand nine hundred and fifty- five PROVIDED ALWAYS that if the Mortgagors shall on or

within fourteen da,)-s after any of the days hereinbefore appointed for l)aylnc!nt of inter& lj”.\- t,o the Mort,gagcct interest at tho rat{: Of Six pounds (E(i) per ccYrt:nn par annum all interest and other moneys previously due having been duly paid and all covenants conditions and agreements herein contained and implied on the part of the Mort,gagors having been duly observed and performed then the Mortgagee shall accept interest at t,he rate last aforesaid in lieu of and in full satisfaction for interest at the rate first hereinbefore mentioned but no such acceptance shall preclude the Mortgagee from enforcing payment of interest at the rate first hereinbefore mentioned on any subsequent occasion in case interest at the reduced rate be not paid within the time limited by this provico.

3. NOTWITHSTANDING the covenant for payment of interest contained in the preceding paragraph it is hereby agreed and declared by and between the parties hereto that until the death of the said I. J. the Mortgagee will not require payment to be made by the Mortgagors of the said interest each quarter but such interest shall be compounded by the Mortgagee at the rate of d56 per centum per annum on the aforesaid quarterly interest dates and shall be added to an,1 form part of the principal sum secured hereunder.

4. THAT they will whenever thereto required by the Mortgager at, their own cost make and execute to the Mortgagee or as they shall direct all such further assurance and writings as shall be deemed by the Mortgagee necessary or expedient for more effectually assuring to the Mortgagee the benefit of this securit)y.

5. AND IT IS AGREED AND DECLARED that unless and until the Mortgagors shall have made default in payment of t,hc principal sum or any interest or ot,her moneys hereby secured it shall be lawful for the said A. B. one of the Mortgagors t)o receive from the Trustees of the Estate of the said G. H. the income payable in respect of the said property and her receipt therefor shall be sufficient discharge BUT upon default and demand being made by the Mortgagors to the Mortgagee the Mortgagee shall be at libert,y to receive from the Trustees or from any other person or corporation by whom the same may be payable or transferable all or any sums of money or property that would be receivable by the Mortgagors but for these presents and to apply the same in payment and discharge of the costs of these presents and any other charges and of the interest and principal moneys hereby secured and the receipt of t,he Mort- gagee shall be a sufficient discharge for the same.

6. TIME Mortgagors and each of them have and hath now good right to the premises hereby charged as before mentioned and to sign transfer and make over the same in manner hrrein- before appearing and that free from all encumbrances by t,he Mortgagors.

7. AND for the purpoz of more effectually securing t)o tho Mortgagee the benefit of tho security herein contained the Mortgagors and each of them Do HEREBY jointly and severally irrevocably NOMINATE CONSTITUTE AND APPOINT the Mortgagee the true and lawful attorneys of the Mortgagors and for each of them and in their names and on their behalf or on behalf of any one or more of them to do all or any of the deeds matters and things following that is to say :

(a) To apply for and receive and give effectual discharges and releases for all and any money or property which the Mortgagors might receive but for these present,s and to appoint any other person or persons to receive the same or any part or parts theroof in like manner.

(b) Upon default by the Mortgagors for the space of thirty days in payment of the said principal sum or of any interest or other moneys due hereunder or in the observance or performance of any covenant condition or agreement on their part herein contained or implied to enter into possession of or to sell the interest of the Mortgagors in the property aforesaid and either as a whole or in parts either by public auction or private contract and generally in such manner and on such terms as the Mortgagee may think fit and to concur with the other persons interested in the same in any partition or sale of the same and it shall not be necessary for the Mortgagee to give to the Mortgagors any Notice or to wait any time prior to any such sale.

(c) To appear as Plaintiff or Defendant in any proceedings for the purpose of protecting or obtaining possession of the said property of the Mortgagors or otherwise to a& in relation to the premises as shall from time to time appear tr, the Mortgagee proper without its being necessary to serve any notice upon the Mort-

July 5, 1955 NEW ZEALAND LAW JOURNAL vii

Insurance at

LLOYD’S * INSURANCE to-day is a highly technical business and there are many special

Lloyd’s Policies designed to meet modern conditions and requirements. It is the business of the Professional Insurance Broker to place his knowledge and experience at the service of his client, and his duty is to act as his client’s personal agent to secure for him the best coverage and security at the lowest market rates.

* LUMLEY’S OF LLOYD’S is a world-wide organization through whom, inter alia, the advantages of insuring under Lloyd’s Policies at Lloyd’s rates may be obtained. As Professional Insurance Brokers in touch with the biggest and most competitive insurance market in the world, Lumley’s offer the most complete and satisfactory insurance service available in New Zealand.

* If you require the best insurance advice-consult . . . .

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BRANCHES AND AGENTS THROUGHOUT NEW ZEALAND

The New Zealand CRIPPLED CHILDREN SOCIETY (Inc.) ITS PURPOSES

TheNew Zealand Crippled Children Society was formed in 1935 to take Box 6025, Te Aro, Wellington

up the cause of the crippled child-to act as the guardian of the cripple, and fight the handicaps under which the crippled child labours ; to endeavour to obviate or minimize his dlsability, and generally to bring I8 BRANCHES within the reach of every cripple or potential cripple prompt and efficient treatment.

ITS POLICY THROUGHOUT Tiff DOMINION (a) To provide the same opportunity to every crippled boy or girl as

that offered to physically normal children ; (b) To foster vocational training and placement whereby the handicapped may be made self- ADDRESSES OF BRANCH SECRETARIES : supporting instead of being a charge upon the community ; (c) Preven- tion in advance of crippling conditions as a major objective ; (d) To

(Each Branch administers its own Punds)

wage war on infantile paralysis, one of the principal causes of crippling ; AUCKLAND . . . P.O. Box 5097, Auckland (c) To maintain the closest co-operation with State Departments, CAXTERBURY AND WESTL~ND . . P.O. Box 2035, Christchurch Hospital Boards, kindred Societies, and assist where possible. SOUTB CANTERBURY . 28 Wai-iti Road, Timaru

It is considered that there are approximately 6,000 crippled children DUNEDIN , . P.O. Box 433, Dunedin

in New Zealand, and each year adds a number of new cases to the GISBORNE . . . . . . . P.O. Box 331, Glsborne

thousands already being helped by the Society. HAWK& BAY . . . . . P.O. Box 30. Napier

Members of the Law Society are invited to bring the work of the NELSOX . . . P.O. Box 188, Nelson

N.Z. Crippled Children Society before clients when drawing up wills NEW PLYMOUTH . . . . 12 Ngamotu Beach, New Plymouth

and advising regarding bequests. Any further information will NORTE OTAQO . . C/o Dal&y & Co., P.O. Box 304. Oamaru

gladly be given on application. MANA~ATU . . . . P.O. Box 299, Palmer&on North MARLB~ROUQH . . . . . P.O. Box 124, Blenheim

MR. C. MEACAEN, Secretary, Executive Council SOUTH TARANARI . A. & P. Buildings, Nelson Street, Hawera SOlJlXbAND . . . . . .

EXECUTIVE COUNCIL P.O. Box 169, Invercargill

STRATFORD . . . . . . . P.O. Box 83, Stratford MR. H. E. YOUNG, J.P., SIR FRED T. BOWERBANK, DR. ALEXANDER WANGANUI . . . ~ P.O. Box 20, Wanganui &&LIES, SIB JOXN ILOTT, MR. L. SINCLAIR THOMPSON, YR. FRAN6 WAIRARAPA . . . . . . . P.O. Box 125, Masterton JONES, SIR CHAXLES NORWOOD, MR. CAXPBELL SPRATT, MR. 0. Ii. WELLI.YOTON Brandon House, Feather&on St., Wellington HANSARD, MR. ERIC HODDER, MR. ERNEST W. HUNT, MR. WALTER TAURANNGA . . . . 4p Seventh Avenue, Tauranga N. NORWOOD, MR. V. S. JACOBS, MR. G. J. PARK, MR. D. G. BALL, COOK ISLANDS C/o Mr. H. Bateson, A. B. Donald Ltd., Rarotonga DR. Q. L. MCLEOD.

. . . Vlll NEW ZEALAND LAW JOURNAL July 5, 1955

.~

Charities and Charitable Institutions HOSPITALS - HOMES - ETC.

The attention of Solicitors, as Executors and Advisws, is directed to the cl&m of the imtitutim iti thicr &we:

BOY SCOUTS 500 CHILDREN ARE CATERED FOR

IN THE HOMES OF THE

There are 22,000 Boy Scouts in New Zealand. The training inculcates truthful- PRESBYTERIAN SOCIAL SERVICE ness, habits of observation, obedience, self- ASSOCIATIONS reliance, resourcefulness, loyalty to Queen and Country, thoughtfulness for others. There is no better way for people

It teaches them services useful to the to perpetuate their memory than by public, handicrafts useful to themselves, and helping Orphaned Children. promotes their physical, mental and spiritual development, and builds up strong, good g500 endows a Cot character. in perpetuity.

Solicitors are invited to COMMEND THIS

UNDENOMINATIONAL ASSOCIATION to clients. Official Designation :

A recent decision confirms the Association as a Legal Charity. THE PRESBYTERIAN SOCIAL SERVICE

TRUST BOARD Official Designation :

AUCKUND, WELLINGTON, CHRISTCHURCH, The Boy Scouts Association (New Zealand

Branch) Incorporated, TIYARU, DUNEDIN, INVERCARGILL.

P.O. Box 1642. Wellington, Cl.

Each Association administer8 its 0~7~ 3’umk

CHILDREN’S THE NEW ZEALAND

HEALTH CAMPS Red Cross Society (Inc.) A Recognized Social Service

Dominion Headquarters

61 DIXON STREET, WELLINGTON, New Zealand.

A chain of Health Camps maintained by voluntary subscriptions has been established “ I GIVE AND BEQUEATH to the NEW throughout the Dominion to open the door- ZEALAND RED CROSS SOCIETY (Incor- way of health and happiness to delicate and understandard children. Many thousands of porated) for :-

young New Zealanders have already benefited The General Purposes of the Society, by a stay in these Camps which are under the sum of E.. . . . . . . . . . . (or description of medical and nursing supervision. The need is always present for continued support for

property given) for which the receipt of the

this service. We solicit the goodwill of the Secretary-General, Dominion Treasurer or

legal profession in advising clients to assist other Dominion Officer shall be a good by means of Legacies and Donations this discharge therefor to my trustee.” Dominion-wide movement for the better- ment of the Nation.

N.Z. FEDERATION OF HEALTH CAMPS, In Peace, War or Natiwal Emergency the Red Cross

PRIVATE BAG, serves humanity irrespective of class, colour or

WELLINGTON. creed.

CLIENT ” Then. I wish to include in my Will a legacy for The British and Foreign Bible Society.”

MAKING SOLICITOB : ‘* That’s an excellent idea. The Bible Society h&a at least four characteristics of au ideal bequest.” CLIENT: ” Well, what are they ?” SOLlClTOFi: da It’s purpose is definite and unchanging-to circulate the Scriptures without either note OF comment.

A IC record is amazing-since ita inception in 1804 It has distributed over 532 million volumes. Its scope in far-reaching-it troadcssts the Word of God in 750 language& Ita activities can never be superfluoue- man will always need the Bible.”

WILL CIIBAT “ You exprene my view8 exactly. The Society deserves a aubstantirl legacy, In addition to one’& re:ulsr

contribution.”

BRITISH AND FOREIGN BIBLE SOCIETY, N.Z. P.O. Box 930, Wellington, C.1.

July 6, 1955 NEW ZEALAND LAW Y OIJRNAL 187

gagors or any other person or to obtain the concurrence of any person and for such purpose or any other purposes contemplated by these presents to instruct counsel Solicitors or others.

(d) To commence prosecute enforce defend answer or oppose all actions and other legal proceedings and demands touching any of the matters aforesaid and also if thought fit to compromise refer to arbitration abandon submit to judgment or become non-suited in any such action or proceedings as aforesaid.

(e) To join with any other person or persons in doing all or any of the acts and things aforesaid.

(f) To adjust settle compromise or submit to arbitration and account debts claims and demands disputes and matters touching any of the matters aforesaid.

(Q) To execute sign enter into acknowledge perfect and do all releases deeds instruments acts and things as shall be necessary or may be deemed proper for or in relation to all or any of the’purposes or matters aforesaid and all further assurances mortgages writings or deeds for more effectually securing to the Mortgagee the benefit of this security AND generally to act as the Attorney of the Mortgagors in the premises and on behalf of the Mortgagors to execute and do all instrument’s acts and things as fully and effectually in all respects as the Mortgagors could do if personally present and the Mortgagors hereby undertake to ratify what)soover the Mortgagee shall lawfully do or cause to be done by virtue of the provisions of Clause 7 hereof.

AND it is hereby declared that no person shall be concerned to enquire whether any of the powers hereby conferred are being regularly or properly carried out or be affected by notice that they are not so but as between any person dealing with the Mortgagee or any other person authorized by these presents or with any person appointed by it under the provision in that behalf hereinbefore contained anything done shall be binding upon the Mortgagors as if done by themselves and their remedy for anything wrongfully done shall be against the Mortgagee.

8. THE Mortgagee shall not be answerable for any involuntary loss happening in or about the exercise of any powers conferred on it by these presents or by statute. IN WITNESS whereof these presents have been executed the day and year first hereinbefore written.

SIGNED by the said A. 13. in \ the presence of :- )

K. L., Solicitor,

Wanganui. SIGNED by the said C. D. in 1 the presence of :- )

M. N., Solicitor,

Wangnnui.

A. B.

c. D.

SIGNED by the said E. F. in the presence of :- 1

0. P., Solicitor,

Wanganui.

E. F.

PXECEDENT No. 2. NOTICE TO TXUSTEES OF ESTATE P~XSUANT TO PIUUX:~ENT

The Trustees, Estate late G. H. deceased,

C/o Messrs. Solicitors,

Wanganui. ~a Interest under Will of Mrs. A. B.

and her Children. PLEASE TAKE NOTICE that by a Deed of Mortgage or Charge dated the day of , 1955, Mrs. A. B. of Wanganui, and her children C. D. and E. F. both of Wanganui, Married Women, have assigned mortgaged and charged their respective Estates shares or interests to which they are or may become entitled under the Will of the late G. H. deceased unto the

Limited (of Wellington) to secure repayment of the principal sum of Seven hundred and Sixty pounds ($760) and intsrest as therein provided. AND FURTHER TAKE NOTICE that the said Deed of Mortgage contains full power for the said Limited

to receive and give a good receipt for all the said Share and interest of them the said A. B., C. D. and E. F., and the moneys representing the same, and you are hereby required to pay and transfer the same to the said Limited accordingly. DATED at Waneanui this dav of , 1955.

“A. B.

E-

The By thoir authorized Agent and Solicitor K. 1,.

Solicitor K. L. Limited by its authoriaed Agent and

PRECEUENT No. 3.

MORTGAGE BY WAY OF FURTHER ADVANCE ON THE SECURITY OF A CONTINGENT LEGaCY.

THIS DEED made the day of One thousand nine hundred and fifty-five (1955) BETWEEN A. B. of Welling- ton, Widow, C. D. of Wellington, Married Woman E. F. of Feilding, Married Woman and G. H. of Levi,, Married Woman (hereinafter with their respective heirs executors administrators and assigns referred to as “ the Mortgagors “) of the one part AND I. J. of Wellington, Civil Servant and K. L. of Wellington, Solicitor (hereinafter with their heirs administrators executors and assigns referred to as “ the Mortgagees “) of the other part WHEREAS the said A. B. is entitled to a certain interest in the estate of the late M. N. deceased under the provisions of his Will Probate whereof was granted by the Supreme Court of New Zealand at Wellington on the twentieth day of September, One thousand nine hundred and fifty-two AND WHEREAS the interest of the said A. B. in the said estate of M. N. deceased is subject to the following condition, that is to say: “With regard to each of them the said A. B. and the said A. A. I DIRECT that if she shall pre- decease me or my wife the legacy bequeathed to her hereunder shall be paid to such of her children as shall attain the age of twenty-one years and if more than one in equal shares or if no child shall attain the age of twenty-one years then such legacy shall be paid to her husband” AND WHEREAS the widow of the said M. N. is still alive AND WHEREAS the husband of the said A. B. is now deceased AND WHEREAS the said A. B. has three children all sui juris namely, the said C. D. E. F. and G. H. AND WHEREAS by Deed of Mortgage dated 4th June, 1953, the said A. B. assigned by way of mortgage all of her share and interest of and in all the assets forming the estate of the said M. N. deceased to secure the sum of Two hundred pounds (E200) lent by the Mortgagees to the said A. B. together with interest thereon in the manner and at the rate therein set out AND WHEREAS the said A. B. has requested the Mortgagees to advance and lend to her 8 further sum of Two hundred pounds ($200) which the Mortgagees have agreed to do on the execution of these presents by the Mortgagors Now THIS DEED WITNESSETH that in pursuance of the said agreement and in consideration of a further sum of Two hundred pounds (5200) now paid by the Mortgagees to the said A. B. (the receipt whereof is hereby acknowledged) the Mortgagors do and each of them doth hereby assign transfer and set over unto the Mortgegees all their respective shares and interests of and in all the assets forming the estate of the said M. N. deceased to hold the said shares and interests hereby assigned unto the Mortgagees absolutely subject to the proviso for redemption hereinafter contained PROVIDED ALWAYS and it is hereby expressly declared that if the Mortgagors shall at the due date thereof pay the said sum of Two hundred pounds ($200) secured by the said deed of mortgage dated 4th June, 1953 and the further sum of Two hundred pounds (E200) hereby advanced (making in all a total sum of Four hundred pounds (E400) with interest thereon in the meantime in accordance with the covenants in th8 said deed of mortgage dated 4th June, 1953 and in this deed, the Mort- gagees at any time thereafter at the request and cost of the Mortgagors will re-assign the property hereby mortgaged to the Mortgagors or as they shall direct and the Mortgagors hereby jointly and severally covenant with the Mortgagees as follows :-

1. That they will pay to the Mortgagees on the day of the death of 0. P. (the widow of the said M. N. deceased) not only the sum of Two hundred pounds ($200) secured by the said deed of mortgage dated 4th June, 1953 but also the further sum of Two hundred pounds ($200) advanced by these presents.

2. That the Mortgagors shall pay to the Mortgagers interest on the further sum of Two hundred pounds (e200) advanced by these presents for the period from 1st May, 1955 to 29th May, 1955 at the rate of Eight pounds ($8) per centum per annum

188 NEW ZEALANb LAW JOtJRNAL July 5, 1955

(reducible as hereinafter provided) and shall thereafter pay to the Mortgagees not only on the sum of Two hundred potmds (E200) advanced by the said deod of mortgage dated 4th June, 1953 but also on the further sum of Two hundred pounds (+X00) advanced by these presents interest on the total sum of Four hundred pounds ($400) or such smaller or lerger sum :w may from timo to time bo owing hereunder at tho rata of Eight pounds ($8) per centum per annum (roduciblo as hereinafter appearing) by quarterly payments on the 29th dsys of August, November, February and May in osch year so long AS any moneys remain owing hereunder computed from the 29th day of Xuy, One thousand nine hundred and fifty-five PROVIDED ALWAYS that if the Mortgagors shell on or within fourteen days after <any of the days hereinbefore appointed fcr payment of inter& pay to tho Mortgagees interest at the rata of Six pounds (C6) per centum per annum all intorest and other moneys previously duo having been dldy paid and all covenants conditions and agreements herein contained and implied cn the part of the Mortgagors having been duly observed and performed then the Mortgagees shall accept interest at the rata last aforesaid in lieu of and m full satisfaction for interest at the rate first hereinbefore mentioned but no such acccptenco shall preclude the Mortgagees from enforcing peyment of interest at the rate first hereinbefore mentioned on any subsequent occasion in case interest at the reduced rate be not paid within the time limited by thin proviso.

3. On any quarterly day hereinbefore appointed for payment of interest if the Mortgagors shall fail to pay to the Mort- gagees the interest due on any such day or days then such interest shall be added to and form part of the principal sum sooured hereunder and shall bear interest at the appropriate rata aforesaid calculsted from the date of such quartarly day down to the day of payment to the Mortgegoes.

4. That the Mortgagors will whenever thereto required by the %Iortgagaes at their own expense make and execute to the JIort- gagees or as they shall direct all such further assurance and writings a2 shall be deemed by the Mortgagees necessary or expedient for more effectually assuring to tho Mortgagees t,he benefit of this security.

6. AND IT IS AGREED AND DECLARED that unless and until the Mortgagors shall have msdc default in payment of the principal sum or any interest or other moneys hereby secured it shall be lawful for tho Mortgagors to receive from the Trnsteos of the Estate of the said M. N. the income payable in respect of the said property and her receipt thersfor shall be sufficient discharge. BUT upon default and demand being made by the Mortga.gees to tho said Trust:es the Mortgagees shall be at liberty to receive from the Trustees or from a.ny other p~son or corporation by whom the same may be payable or trans- fersble all or any sums of money or property that would be receivable by the Mortgagors but for these presents and to apply the same in payment and discharge of the costs of these presents and any other charges and of the interest and principal moneys hereby secured and the receipt of tho Mortgagees shell be a sufficient discharge for the same.

6. The Mortgagors have now good right to the promises horcby charged as before mentioned and to sign transfer and make over the same in manner hereinbefore appearing and that free from all encumbrances by the Mortgagors.

7. AND for the purpose of more effectually securing to the Mortgagees the benefit of the security l-.erein contained the Mortgagors Do HERESY for themselves and their respective heirs executors administrators and * irrevocably NOMINATE CONSTITUTE AND APPOINT the G%Eiees and each of them the true and lawful attorneys of the Mortgagors and in her ‘ar their names and on her or their behalf to do all or any of tha deeds matters and things following that is to say :

(a) To apply f?r and receive and give effectual discharges and releases for all and any money or property which the Mortgagors might receive but for these presents and to appoint any other person or persons to receive the same or any part or parts thereof in like manner.

(b) Upon default by the Mortgagors for the space of thirty days in payment of the said total principal sum of Four hundred pounds ($400) or of any interest or other moneys due hereunder or in the observance or performance of any covenant condition or agreement on her or their part her& contained or implied to enter irito possession of or to sell the interest of the Mort- gagors in the property aforesaid and either as a whole car in parts either by public auction or private contract and generally in such manner and on such terms as the Mortgagees may think fit, and to concur with the other persons interested in the same in any partition

or sale of the same and it shall not be necessary for the Mortgag?as to give to the Mortgagors any notice or to wait any time prior to any such sale.

(c) To appear as Plaintiff or Defendant in any proceedings for the purpose of protecting or obtaining possession of the said property of the Mortgagors or otherwise to act in relation to the premises as shall from time to timo appear to the Mortgsgees proper without its being necessary to serve any notice upon the Mortgagors or any other person or to obtain tho concurrence of any person and for such purpose or any other purposes contemplated by those presents to instruct counsel Solicitors or ot,hers.

(II) To commence prosocute enforoo d:fend nnswor JP oppose all actions and other logal proceedings and demands touching any of the matters aforesaid and also if thought fit to compromise refer to arbitrs%tion abandon submit to judgment or become non-suited in any such action or proceedings as aforesaid.

(e) To join with any other parson or parso”* in doing all or any of the acts and things aforesaid.

(f) To adjust settle compromise or submit to arbitration and account debts claims and demands disputos and matters touching any of the matters aforesaid.

(9) To execute sign enter into acknowledge perfect and do all releases deeds instruments acts and things as shall be necessary or may be deemed proper for or in relation to all or any of the purposes or matters aforesaid and all further assurances mortgages writings or deeds for more effectually securing to the Mortgagees the benefit of this security AND generally to act as the Attorney of the Mortgagors in the premises and on behalf of the Mortgagors to execute and do all instruments acts and things as fully and effectually in all respects as the Mortgagors could do if personally present and the Mortgagors hereby undertake to ratify whatsoever the Mortgagees shall lawfully do or Cause to be done by virtue of tho provisions of Clause 7 horesf AND it is hereby dealwed that no person shall be concerned to enquire whether any of the powers heroby conferred are being regularly or properly carried out or be affected by notice that they are not so but a.3 between any person dealing with the Mortgagees or any other person authorized by these presents or with any person appointed by it under the provision in that behalf hereinbefore contained anything done shall be binding upon the Mortgagors as if done by her- self or themselves and her or their remedy for anything wrongfulIy done shall be against the Mortgagees.

8. The Mortgagees shall not be answerable for any involuntary loss happenmg in or about the exercise of any powers conferred on them by thsse presents or by statute. IN WITNESS whereof these presents have been executed the day and year first hereinbefore written.

SIGNED by the said A. B. in 1 the presence of: J

Q. R., Solicitor,

Wellington.

SIGNED by the said C. D. in j the presence of: J

S. T., Solicitor,

Wellingt>:n.

SIGNED bv the said E. lq. in ) the pros&co of : i

u. v.,

A. B.

C. 1).

E. 1;.

Solicitor, Wellington.

SIGNED by tho said G. H. in the presence of: 3

iv. x., Solicitor,

Wellington.

G. H.

N&K-To be accowpanietl by notice of the imttwnent to the trustees, as in Precedent No. 2 ante.

July 5, 1956 NEW BEALANB LAW JddRidAt is __.--- ___ --- __ --- .-- -- - ~~-.- - -- -__

The CHURCH ARMY The Young Women’s Christian

A in New Zealand Society 7

Association of the City of

(A Society Incorporated under the prooviaiona 01 Wellington, (Incorporated).

The Religious, Charilable, a& Educational Trusts Acts, 1908.)

Prmidenl : TEE MOST REV. R. H. OWEN, U.1).

Primate and Archbishop of New Zealand.

Headquarters and Training College: 90 Richmond Road, Auckland, W.l.

ACTIVITIES. Church Evangelists trained. Mission Sisters and Evangel- Welfare Work in Military and ists provided.

Ministry of Works Camps. Parochial Missions conducted Special Youth Work and Qualified Social Workers pro-

* OUR ACTIVITIES: (I) Resident Hostels for Girls and a Transient

Hostel for Women and Girls travelling.

Children’s Missions. vided. Religious Instruction given

in Schools. Work among the Maori.

ChaT;hdis;;raare printed Prison Work. Orpharmges staffed

(2) Physical Education Classes, Sport Clubs, and Special Interest Groups.

(3) Clubs where Girls obtain the fullest appreciation of the joys of friendship and service.

* OUR AIM as an Undenominational Inter- nationai Fellowship is to foster the Christ- ian attitude to ail aspects of life.

* OUR NEEDS: LEGACIES for Special or General Purposes may be safely

entrusted to-

THE CHURCH ARMY. FORM OF BEQUEST.

“I give to The Church Army in New Zealand Society, of 91) Richmond Road, Auckland, W.1. [here insert particulare] and I declare that the receipt of the Honorary Treasurer for the time being, or other proper Officer of The Church Army in New Zealand Vooiety, shall be sufficient discharge for the same.”

Our present building is so inadequate as to hamper the development of our work.

WE NEEDf50,OOO before the proposed New Building can be commenced.

Qeneral Secretary, Y.W.C.A., 5, BouZcott Street, Wellington.

A. worthy bequest for

YOUTH WORK . . . @llJl? yigJp3’ @j@xi?e

'THE OBJECT :

” The Advencement of Christ’8

Y.M.C.A. Kingdom among Boys aUd the Pro- motion of Habita of Obedience, Iteverence, IJisclpliUe, Self Respect, and all that tends towards a true Christ&xl Manllnes%.”

THE Y.M.C.A.‘s main object is to provide leadership training for the boys and young men of to-day . . . the

future leaders of to-morrow. This is made available to youth by a properly organised scheme which offers all. round physical and mental training . . . which gives boys

Founded in 1883-the first Youth Movement founded.

and young men every opportunity to develop their potentialities to the frill.

The Y.M.C.A. has been in existence in New Zealand for nearly 100 years, and has given a worthwhile service to every one of the thirteen communities throughout New Zealand where it is now established. Plans are in hand to offer these facilities to new areas . . . but this can only be done as funds become available. A bequest to the Y .M.C.A. will help to provide service for the youth of the Dominion and should be made to :-

THE NATIONAL COUNCIL, Y,M.G,A,‘s OF NEW ZEALAND,

Is International and Interdenominational. The NINE YEAR PLAN for Boys . . .

9-12 in the Juniors-The Life Boys. 12-M in the Senior?-The Boys’ Brigade.

A character building movement.

114, THE TERRACE, WELLINGTON, or YOUR LOCAL YOUNG MEN’S CHRISTIAN ASSOCIATION

FORM OF BEQUEST:

“I GIVE AND BEQUEATH Unto the Boys’ Brigade, New Zealand l)ominioU Council Incorporated, National Chambers, 22 Customhouse Quay, Wellington, for the general purpose of the Brigade, (/we insert details 01 legacy or bequest) and I direct that the receipt of the Secretary for the time being or the receipt of any other proper officer of the Brigade shall be a good and sufficient discharge for the same.”

For inlornzation, wrilc lo.

GIFTS may also be marked for endowment purposes THE SECRETARY, or general use. P.O. Box 1408. WRLLIRGTOR.

x NEW ZEALAND LAW JOURNAL July 5, 195.6 -__- ~

OBJECTS : The principal objects of the N.Z. Federa- t:on of Tubercu’osis Associations (Inc.) are as follows:

1. To establish and maintain in New Zealand a Federation of Associations and persons interested in the furtherance of a campaign against Tuberculosis.

2. To provide supplementary assistance for the benefit, comfort and welfxe of persons who are suffering or who have suffered from Tuberculosis and the de- pondants of such persons.

8. To provide and raise funds for the purposes of the Federation by subscriptions or by other means.

4. To make a survey and acquire accurate information and knowledge of all matters affecting or con- cerning the existence and treatment of Tuberculosis.

5. To 8ecure co-ordination between the public and the medical profession in the investigation and treat- merit of Tuberculosis, and the after-care and welfare of persons who have suffered from the said disease.

A WORTHY WORK TO FURTHER BY BEQUEST Members of the Law Society are invited to bring the work of the federation before clients when drawing up wills and giving advice on bequests. Any further information will be

gladly given on application to :-

HON. SECRETARY,

THE NEW ZEALAND FEDERATION OF TUBERCULOSIS ASSNS. (INC.) 218 D.I.C. BUILDING, BRANDON STREET, WELLINGTON C.I.

Telephone 40-959.

OBFICEES AND EXEGUTIVE aouNarL President : Dr. Gordon Rich, Chrislchurch. Dr. G. Walker, New Plymouth Executive : C. Meachen (Chairman), Wellington. A. T. Carroll, Wairoa Council : Captain H. J. Gillmore, Auckland H. F. Low 1 Wanganui

W. H. Masters 1

Dunedin Dr. W. A.Priest )

Dr. R. F. Wilson Dr. F. H. Morrell, Wellington.

L. E. Farthing, Timaru Hon. Treasurep : H. H. Miller, Wellington. Brian Anderson 1 Christchurch Hon. Secretary : Miss F. Morton Low, Wellington. Dr. I. C. MacIntyre ) Hon. Solicitor : H. E. Anderson. Wellington.

Social Service Council of the Diocese of Christchurch.

INCORPORATED BY AUT OF PARLIAMENT, 1952

CHURCH HOUSE, 173 CASHEL STREET CHRISTCHURCH

Warden : The Right Rev. A. K. WARREN

Bishop of Christchurch

The Council was constituted by & Private Act which amalgamated St. Saviour’s Guild, The Anglican Society of the Friends of the Aged and St. Anne’s Guild.

The Council’s present work is:

1. Care of children in cottage homes.

2. Provision of homes for the aged.

3. Personal case work of various kinds by trained social workers.

Both the volume and range of activities will be ex-

panded as funds permit. Solicitors and trustees are advised that bequests may

be made for any branch of the work and that residuary bequests subject to life interests are as welcome as

immediate gifts. The following sample form of bequest can be modified

to meet the wishes of testators.

“ I give and bequeath the sum of L to the Social Service Council of the Diocese of Christchurch for the general purposes of the Council.”

THE AUCKLAND

SAILORS’ HOME

Established-1885

Supplies 19,000 beds yearly for merchant and naval seamen, whose duties carry them around the seven seas in the service of commerce, passenger travel, and defence.

Philanthropic people are invited to support by large or small contributions the work of the Council, comprised of prominent Auckland citizens.

0 General Fund

0 Samaritan Fund 0 Rebuilding Fund

Enquiries much welwmed :

Management : Mr. & Mrs. H. L. Dyer, ‘Phone - 41-289, Cm-. Albert & Sturdee Streets,

AUCKLAND.

Secretary: Alan Thomson, B.Com., J.P., AUCKLAND.

‘Phone - 41-934.

July 5, 1955 NEW ZEALAND LAW JOURNAL 189 _

THE DOCTRINE OF FRUSTRATION.

A Qualification.

By DONALD KEATING, of the English Bar. * -

Bush v. Whitehaven Port and Town Trustees wns not’ reported in any of the ordinary series of law reports save for an account of the Divisional Court proceedings ( 1888) 52 J.P. 392. It wa,s left to A. -4. Hudson (later Sir Alfred Hudson) to preserve a report in t’he 2nd volume of his work on building contracts (4th Ed., p. 122). Yet it was a case in which a strong Court of Appeal (Lord Esher, Lindley and Lopes, L.JJ.) upheld a decision that’, owing to an unanticipated change of circumstances, a building contractor was entitled to recover more payment than the cont’ract price for the completion of a lump sum contract. The case is prima facie attractive to the contractor seeking additional payment for unanticipated expense in completing a contract, but it has not often been before the Courts in reported cases ; and its limits have only recently been stated by the Court of Appeal in Davis Contractors, Ltd. v. Fareham Urban District Council, [1955] 1 All E.R. 275. Before attempt - ing to state the effect of Davis’s case, it may assist t’o set out the facts of Bush v. Whitehaven Port and Town Trustees, and to discuss the more important decisions which refer to it.

Bush, the contractor, undertook to build a water main for the trustees in difficult country in Cumberland for a sum of &1,300. The trustees were to give the contractor the use of so much of the site as might, from time t’o time, in the opinion of their engineer, be required to enable him to commence and continue the work, and t’he contract contained the following clause :

But the non-delivery in the manner aforesaid of the use of such site, or any part thereof, shall not vitiate or affect the contract, nor any provision therein or in this specification contained, nor entitle the contractor to any increased allowance in respect of money, time, or otherwise, unless t,he engineer may grant him any extension of time, and then only to that extent under the provisions for thAt purpose hereinafter contained.

There was a provision for the extension of time beyond the contract time, but any such extension was not to affect the adequacy of the contract sum. The contractor was given to understand that he was to begin work in June and would have four months in which to finish the work ; and his calculations were based on that footing, as the cost to him of doing the work in the winter months would be at least 50 per cent. higher than his tender. In fact, the trustees were unable to give possession of a substantial part of the site until October, so that the work was thrown into the winter months, and the contractor was put to heavy extra expense amounting to &600 for which he sued the trustees. The matter was tried with a jury to whom were left a number of questions including :

(5) Were the conditions of the contract so completely changed, in consequence of the defendants’ inability to hand over the sites of the work as required, as to make the special provisions of the contract inapplicable ? Answer, yes.

Upon this and the other answers of the jury the Divi- sional Court gave judgment for the contractor for E600 and this was affirmed by the Court of Appeal. Both Courts based their decision upon Jackson v. Union -- * In the Law Journal (London).

Marine Insurance Co., Ltd., (1873) L.R. 8 C.P. 572, affd. (1874) L.R. 10 C.P. 125. Lord Coleridge, C.J., in the Divisional Court cited the well-known passage from the judgment of Brett, J., where he said that

where a contract is made with reference to certain an&pited cironmstances, and where without any default of either party it becomes wholly inapplicable to, or impotisible of application, to any such circumstances, it ceases to hsve any application ; it cannot be applied to other circumstances which could not have been in the contemplation of the parties when the contract w&q made.

Jackson v. Union Marine Insurance Co., Ltd. is a leading frustration ca,se (see British Movietonews, Ltd. v. London and District Cinemas, Ltd., [19X] 2 All E.R.. 617), so it is a fair inference that Bush v. Whitehaven

Port and Town Trustees should be regarded as a frustration case, and this was apparently the view held by Pickford, L.J., in Porter v. Tottenham Urban Council [1915] 1 K.B. 776, by Lord Sumner in Bank Line, Ltd. v. A. Capel & Co., [ 19191 A.C. 435, and by McCardie, J., in Naylor, Benson, and Co., Ltd. v. Krainische Industrie- Gesekhaft, [191&j 1 K.B. 331. But recent decisions have now shown that it is not to be regarded as a frustration case.

In Xir Lindsay Parkinson & Co., Ltd. v. Works and Public Buildings Commissioners, 11950) 1 All E.R. 20s the contractors agreed under a varied contract to carry out certain work to be ordered by the Commissioners on a cost plus profit basis subject to a limitation as to the total amount of profit. The Commissioners ordered work to a total value of rE6,600,000, whereas the Court of Appeal held that on its true construction the varied contract only covered work to the value of sE5,000,000 (as ex- plained by Viscount Simon in the British Movietonews case (supra, at p. 624) ). The additional work, therefore, had to be paid for by a quantum meruit so that the contractor recovered more than the fixed maximum profit. Jackson’s case and Bush’s case were discussed and applied. Cohen, L.J., (at p. 222) after referring to a passage from the judgment of Lindley, L.J., in Bush’s case where he said, “ . . . the contract was based on the supposition that the state of things assumed would exist “, observed of the ratio de&&&i in Bush’s case that

it seemed at least to involve the implication of a term that t,he contractor shall not be bound to complete the work if the assumed state of affairs did not exist and it certainly involved the implication outside the contract of a fresh contract to pay & qwcnturn met-wit for the work done by the contractor and accepted by the owner.

Asquith, L.J., referred to Bush’s case as “ a eon- venient bridge between the frustration cases and the present one “.

In the Court of Appeal in the British Movietonews case, Denning, L.J., had referred to Bush’s case “ as though it embodied some new doctrine “, but Viscount Simon in the House of Lords referred to Cohen, L.J.‘s exposition in Parkinson’s case of Bush v. Whiteh,aven Port and Town Trustees as showing “ that no novel principle was involved”.

In Davis Contractors, Ltd. v. Fareham Urban District Council, the contractors agreed with the Council to build

NEW ZEALAND LAW JOURNAL

for them scvemy-eight houses within a period of eight mornhs for a fixed price. It was found as a fact by the arbitrat#or that at the time of entering into the contract bot’h parties anticipated that there would be a sufficient, labour force to enable the work to be carried out substant- ially within the contract period. The arbitrator further founci : (a) that owing to an unavoidable and unforeseen lag in demobilisation there was a shortage of skilled labour which resulted in the work taking twenty-two months to complete instead of eight months and caused the contractors much unanticipated expense ; and (6) that the footing of the contract was so changed that it became void and the contractors were entitled to a fair and reasonable price for the work they had done.

The arbit’rator’s finding in favour of the contractors was based directly on Bush v. Whitehaven Port and Town Trustees. It might appear that his finding was exactly analogous to that, of the jury in Bush’s case, and, although it was objected that the arbitrator’s decision was one of law, or at any rate of mixed la,w and fact, exactly the same objection can, it is submitted, be sustained of the jury’s finding in Bush’s case. Never- theless, the Court of Appeal unanimously allowed the appeal.

Each member of the Court delivered a reasoned judgment. Denning, L.J., distinguished Bush’s case on the grounds that there the trustees were in default. Their failure to give possession did not make them liable to pay damages,

but it WAS a failure within their sphere of operations. It had created a fundamentally different situ&ion in which it was unjust to hold the contractor bound by the contract price.

He said that Parkinson’s case illustrated the same principle for there the employer created a fundamentally different situation by ordering extra work to the tune of $Zl ,OOO,OOO. It would not be correct to regard those two cases as frustration cases. They were both illustrations of the principle that a man was not allowed to take advantage of a condition brought about by himself. He stated in this connection that the principle meant that if, in the course of carrying out a contract, a situation fundamentally different from anything which the parties had in contemplation was brought about by the conduct of one of them, then, even though his conduct may not be a breach of contract, he would not be allowed to take advantage of the new situation to the detriment of the other party when it would be unjust to allow him to do so.

Morris, L.J., examined the facts carefully and con- trasted the finding of the arbitrator with the finding of the jury in Bush’s case. Although the parties might have expected that there would be adequate supplies of labour they had envisaged (by the terms of a covering letter from the contractors at the time of tender) the possibility that difficulties might arise. He held that the findings of the arbitrator did not show or establish that the contract would cease to bind even though the expectation of the parties as to the availa- bility of labour might be disappointed, whereas in Bush’s case it was shown and held that the parties had never agreed to be bound in the fundamentally new state of affairs.

July 5, 1955

Parker, L.J., referred to t,hc arbit’rator’s finding (0) as one of frustration and held that the facts found by the arbitrator were not sufficient to justify such a finding. He referred to Viscount Simon’s warning that a mere unanticipated turn of events such as a wholly abnormal rise or fall in prices, a sudden depreci- ation of the currency, an unexpected obstacle to completion or the like did not in itself affect an executory contract, and cited Asquith, L.J., in Parkinson’s case as saying that the supervening event which brings an executory contract to an end is usually a “ catastrophic event ’ ’ . In the present case, where the contract conditions provided for an extension of time, the delay had not been so abnormal as to fall outside what the parties could have contemplated in the clause (referring t’o Metropolitan Water Board v. Dick Kerr and Co. [1918] A.C. 119). In Bush’s case, there had been no catast’rophic event and there was an express clause providing for delay, yet it was held that the conditions of the contract had so completely changed as to make the special conditions of the contract inapplicable. That case involved the implication of a term that the contractors should not be bound to complete if the assumed state of affairs ceased to exist ; but there the employer had been the means of bringing the assumed state of affairs to an end, and

. . . where the assumed state of affairs ceases to exist by reason of the action of the defendants, as it did in that case, it is much easier to imply that the special exemption provisions, and indeed the whole contract, have ceased to be applicable. It is quite another thing to imply such a term when the assumed state of affairs has ceased to exist through no fault of the defendants and without any catastrophic event.

Although it was not referred to in Davis Contractors, Ltd. v. Farehum Urban District Council, the case of Porter v. Tottenham Urban Council, [1915] 1 K.B. 776, affords a similar example of the Court of Appeal refusing to apply the principle in Bush v. Whitehaven Port and Town Trustees where an unanticipated event, the fault of neither party, caused delay. In that case, the event was the wrongful claim by a third party to the ownership of part of the access to the site which caused a delay of two months. Parr, Ltd. v The Admiralty, Cl9531 2 All E.R. 512, is an example of a contractor being unable to recover additional expenyarferrecy caused by the default of the employer. 6 held that on the express terms of the contract’ thz contractor undertook the risk of such loss. Bush’s case was not referred to.

It is now clear that Bush v. Whitehaven Port and Town Trustees is not a frustration case, because (a) the change of circumstances was not catastrophic, and (b) the change was brought about by the act of one of the parties (cf. Maritime National Fish, Ltd. v. Ocean Trawlers, Ltd., [1935] A.C. 524). It is explainable either by reference t’o the general principles of law propounded by Denning, L.J., or as an example of a special rule of construction and interpretation. If there is any real difference between the two explana- tions, and a choice is necessary, it should be borne in mind that Parker, L.J., followed an exposition of Bush’s case by Cohen, L.J., which was approved (obiter) by the House of Lords in the British Movietonews case.

July 5, 1955 NEW ZEALAND LAW JOURNAL 191 . . ~. ____~~_~. ~-- .._-

IN YOUR ARMCHAIR-AND MINE. __~~ ~.~ BY SCRIBLE~

Per Quod Servitium Amisit.--S&nond on Torts, 11th Ed., p. 406, declares that in t’ruth the cause of action of a mast.er for personal injuries to his servant per quad servitium am&it is an historical relic of the days when a ma,ster had a proprietary interest in his servant and seems anomalous in modern industrial conditions. The Privy Council, however, in Attorney-General for

New Xouth Wales v. Perpetual Trustee Co., Ltd., [1955] 1 All E.R. 846, in which the Crown sought to recover from the owner of a motor car tha’t was negligently driven salary, allowances, and pension paid to a Police constable, injured as a result of the negligence and permanently disabled has infused fresh life into the doctrine. In the Supreme Court, Street,, C.J., held that the case was completely covered by the decision of the High Court of Australia in Commonwealth v. Quince, (1944) 6s C.L.R. 227, in which it was decided that an action would not lie at the suit of the Crown for loss of services of a member of the Royal Air Force whom the respondent had negligently injured. By a majority, the High Court dismissed an appeal from Street, J.‘s, decision and, in turn, a further appeal has also been dismissed upon the ground that the status on which the cause of action was founded lay in the realm of domestic relations, not in that of public relations, and a constable was the holder of an office which had for centuries been regarded as a public office. No doubt his duties have intensified since Shakespeare’s Dogberry instructed the watch :

Dog. ” If you meet a thief, you may suspect him by virtue of your office, to be no true man ; and, for such kind of men, the less you meddle or make with them, whv, the more is for your honesty.”

Watch. “ If we know him to be a thief. shall we not lav hands uaon him ? ”

”

Dog. “LTruly, by your office, you may ; but I think that they that touch pitch will be defiled: the most peaceable way for you, if you do not take a thief, is to let him show himself what he is, and steal out of your company.”

There is one observation in the New South Wales appeal that might serve as a model for all appellate tribunals. In an Irish case, Attorney-General and Minister for Justice v. Dublin United Tramway Co., (1896) Ltd., [1939] I.R. 590, it’ was held that the relationship of master and servant existed between t’he People of Eire and the Civil Guard, and that the Attorney-General, representing the People, could sue for, and recover, damages for the loss of service of a member of the Guard. The reject’ion of the concept by t,he Privy Council is the essence of politeness. “ Their Lordships find themselves unable to agree with this decision which, in their respectful view, gives too little weight to the considerations which have influenced t’hem.”

Are Lawyers Overpaid ?--Scriblex notices that Victor Borge, the Danish humourist of the piano, has now broken all records with eighteen months’ continuous playing of his one-man show “ Comedy in Music ” in the United States. He has grossed over one and a half million dollars, or eighteen thousand dollars a week. Radio fans will be familiar with his phonetic punctuation and his strange flights of whimsy which have little to do wit’h music. (” My grandfather invented a;;$& alarm [pause] which was stolen from him. invented a cure for which there was no disease “) ; but what brings Borge into this page is the fact that during the run of “ Comedy in Music ” he was invited to give

a six-minute performance on television for the Gillette Safety Razor Compa,ny. “ I took my car over to the studio in the old International Theatre, on Columbus Circle,” he says, “ ran outsta,ge, made ten thousa~nd dollars, and came right, back for the second act,. The intermission is generally fifteen minutes, but that clay it was eighteen.” How many up-and-coming, barristers of, this country-or solicitors either, for that matter- can earn 10,000 dollars or its inflationary equivalent for six minutes’ work 1 In England, too, the enormous earnings of a former generation seem to be a thing of the past : indeed, according t,o the estimatle of the Bar Council, out of every hundred young men called to the Bar since the termina,tion of war only thirt,y remain in practice.

Judicial Appearances.-Readers of Aubrey’s Brief Lives, that most agreeable book of sixteenth-century gossip, will recall that he describes Sir John Popham, Lord Chiefe Justice of the King’s Bench (1531-1607), who presided at the trial of Guy Fawkes, as a huge, heavy, ugly man with “ an iron hea,d, a brazen face, and a leaden breech “. More up-to-date descriptions of t,he judicial appearance are to be found in an article in the Neul Xtdesman and Xation (16.4.55) by 17. S. Pritchett, the well-known writer of short stories. “ Looking at Life ” he calls it, so we must assume in the absence of any proof of impressionism that this is life as he sees it :

“ And you may think, m’lord,” counsel is saying, “ that it is not without significance that, when the prisoner signed these cheques, he signed them with the name of Ernest Stoney, a reference possibly to the fact that he was, at the time, without funds.”

Counsel makes a hopeful hissing sound after this and looks expectantly around the Court. The Judge, whose face looks like a small piece of rolled sirloin with glasses on, says :

‘ Not one of your best, Mr. So-and-So.’ ‘ An inadvertence, m’lord, an inadvertence,’ counsel replies,

comfortably inured to the mishaps of legal wit.”

The author, who is seemingly unreceptive to what is photogenic in Judges then visits the criminal arena, where there is an armed robbery appeal, the L.C.J. hearing it’, a’nd “ sitting restlessly in that scarlet quilt of his and with the face of an irritable walnut, his hands never still.” What makes a walnut irrit,able, we are left to guess. And, proceeding into the lower Court, with its fill of tarts, drunks, and would-be suicides, he finds that t’he Magistrat’e “ has kept his eyes lowered throughout these cases. Shyness and sensibility struggle inside him, before the appalling facts of life. He has the modesty of one obliged always to come off best. Since he has neither wig, bib, nor gown, and is dressed like the rest of us, his face has to apologise t’hat the appearance of equality is deceptive.”

Attuned Recorders.-“ This case is permeated throughout by licence, lust, and liquor. As long as I sit as Recorder of London I intend to cleanse the urinals of our great metropolis.“-Sir Ernest Wild, former Recorder.

“ This vice destroys men’s careers, rends their homes and goes like a beast across the face of the ea,rth.“- Sir Gerald Dodson, present Recorder, of a minor theft of Post Office funds.


THE LATE MR. W. D. CAMPBELL. Tributes to His Worth and Work.

Kefermce was made in the lust issue to the death of Mr. W. D. Campbell, C.B.E., M.A., LL.B.

The Timaru Courthouse, where the late Mr. W. D. Campbell practised as a barrister and solicitor for forty-five years and as Crown Solicitor for thirty years, was the scene of a moving tribute on Juno 17 when Bench and Bar paid their respects to the memory of a distinguished lawyer and citizen.

At noon a special sitting of the Court was held before Mr. G. Q. Chisholm, a former Stipendiary Magistrate at Timaru, and Mr. S. G. McClelland, J.P., president of the South Canterbury Justices’ Association. There was a large gathering of the legal profession and members of the Court staff, and the Police and Transport Department were represented.

The president of the South Canterbury branch of the Canter- bury District Law Society, Mr. G. 8. Raymond, said he was sure that all South Canterbury practitioners, a3 well as solicitors in other parts of New Zealand, would have learned with great regret of the passing of Mr. Campbell.

Prom 1910, over a period of forty-five years, said Mr. Raymond, Mr. Campbell had been in practice as a barrister and solicitor and for t,hirty years he held the office of Crown Solicitor in Timaru. Before he entered law he had made his mark in journalism, had attained the position of Editor of the T&~UXU Herald and had contested a Parliamentary election. Had he not adopted the pro&ice of law, it was clear thet with his qualities and ability Mr. Campbell would have attained high honour in other fields.

“It is especially of his work as a barrister and solicitor and particularly as Crown Solicitor that I am honoured to speak on behalf of South Canterbury law practitioners this morning in paying tribute to his memory “, said Mr. Raymond. “ During the years he practised law, Mr. Campbell appeared in many Courts from the humblest to the Judicial Committee of the Privy Council. His practice was always a wido one and his advice wan, extensively sought and respected. To his high academic qualifications he added complete honesty and independence of character and the capacity to assess wisely questions of fact and law. Although he practised in Timaru he was well known in other centres.”

As Crown Solicitor, continued Mr. Raymond, Mr. Campbell took the view that his duty in criminal matters was not to advo- cato his cause and secure a verdict if possible, but rather to present the facts upon which the Crown relied fully and in their correct light. His balanced judgment and fairmindedness made him particularly fitted for the office he held.

Generally, as an advocate, Mr. Campbell would be remembered by practitioners for his almost intuitive grasp of legal principles ;md his independence of character, said Mr. Raymond. He was most helpful and tolerant toward younger practitioners. He had a long memory for interesting facts and cases in which he appeared, and even in his later years ho enjoyed tracing some complex circumstance, making the point clear and proserving the story.

He had been asked by the President of the Canterbury District Law Society, Mr. T. A. Gresson, to ask that its members be as- sociated with the tribute to Mr. Campbell, said Mr. Raymond. Waimate and Geraldine practitioners had made a similar request.

“We are proud to express our appreciation of the past services of Mr. Campbell both in law and in the community gona- rally, and we express our sympathy to Mrs. Campbell and family “, Mr. Raymond concluded.

It wad very fitting that the Law Society should pay tribute to Mr. Campbell in the building with which he had been asso- ciated so long in the practice of his profession, said Mr. Chisholm.

“ It is right that I should say that Mr. E. A. Lee, SM., would have been present in Court on this occasion. He has, howorer, suffered a grievous personal loss in the death of his wife, and I would like to express my sympathy and that of the Court staff to Xr. Lee “, said Mr. Chisholm.

Recalling that he had seen Mr. Campbell in Court in his YOLUZ-

ger days, Mr. Chisholm said he had never met him personally until he came to Timaru as Magistrate. He regarded him as a man from whom one coulcl expect sympathetic co-operation, and that was exactly what hc received horn Mr. Campbell when he was on the Bench.

Mr. Campbell, he said, was a regular attender at meetings of the South Canterbury Justices’ Association and was most holp- ful to that Association with addresses and in other ways.

“ I would like to associate Mr. Lee and members of the Timaru Court staff in an expression of sympathy with Mrs. Campbell and members of the family “, said Mr. Chisholm.

At the direction of Mr. Chisholm the gathering stood in silence. In a leading article, the !f%~cwru Herald, on June 17, paid the

following tribute to Mr. Campbell’s memory :

“ LAWYER, CITIZEN, FRIEND.”

“ In taking leave of William David Campbell, whose death is announced to-day, the Timuru Herald does more than lament the passing of the robust character who was its Editor from 1904 to 1908. Mr. Campbell was a man who had made two careers for himself: one in journalism, the other in Law. Then he had a third oareer, a blending of these two : he became in his half century of life in Timaru the confidant, adviser, comforter and friend of the community at large. His ears and heart were ever open to those who sought a portion of his quiet sagacity ‘and knowledge of the world. In an extraordinary yet wholly un- ostentatious way he developed into a vital and humane element in the life of this city.

“As a young man Mr. Campbell set his heart on a career in Law. Circumstance distracted him from it for a time, but faith in reaching this ultimate goal was never dimmed and per- tinacity in making its attainment possible never failed. In 1911 Mr. Campbell was admitted to the Bar and from that time, until failing health forced his retirement from practice some 18 months ago, he adorned this profession of his choice. A year or two ago, J. C. Masterman, Provost of Worcester College, Oxford, wrote a book in which one of his characters discussed the status and functions of lawyers. ilmong the things said was this : ‘Every man who values happiness should guide his life and relations with other men by the advice of his lawyer. The lawyer is, indeed, mankind’s best friend, and no calling or profession can compare in value with the law.’

“ That was a handsome tribute to an ancient and honourable profession, but one vulnerable to the proclaimed reservation of Dr. Johnson : ‘ Why, Sir, in the formulary and statutory part of law, a plodding blockhead may excel; but in the ingenious and rational part of it a plodding blockhead oan never excel. ’ Therefore, tributes to lawyers can, in fact, be validated only by the publicly revealed service of those lawyers who practise their profession against a background of broad learning, copious humanity, understanding tolerance and passionate appreciation of justice and the rights of every man. Yet, first of all, the true lawyer must be so educated that he venerates the highest achieve- ments of the human mind and spirit. Without that imperative foundation he can dwindle, as some professing lawyers lamentably have done, into juiceless certificated scribes and technicians. Mr. Campbell was a complete lawyer; in his mind and nature the essential attributes of a good lawyer were joined. Within the orbit in which he worked, he did, truly, become ‘ mankind’s best friend ,I,, and as such he became too an exemplar to his fellow-practitioners throughout New Zealand. No man in this country had a more stringent conception of his professional responsibilities, no man could have done more to keep untarnish- cd the groat traditions of his calling.

“What many might achieve temporarily by suavity, Mr. Campbell achieved permanently by candour and rugged honesty. No man fought better for a cause once he had been persuaded that it was worth fighting for. Those who encountered him from the other side on these fighting occasions had the exhilarat- ing experience of matching themselves with a Highlander who stuck to his point no matter what happened. Yet any with memories of such skirmishes will recall them now with nothing but affectionate respect.

“ By the rest of the community Mr. Campbell will be remembered for his homespun simplicity, his modesty, such anatural offshoot of his greatness, and the friendliness bestowed widely and with such seemly impartiality. Through Mr. Campbell’s death Timaru has lost a grand character, one who would have enriched the life of any commlmity, and it has lost tbo best of citizens. Those who had the privilege of knowing him intimately have lost the most stalwart of friends.”

July 5, 1956 NEW .ZEALAND LAW JOURNAL

The New Zealand Law Journal’s DIRECTORY of

Real Estate Agents, Auctioneers, Valuers, and Sharebrokers.

“AUCKLAND. BENNETT, C. F. LTD., Black&t’s

Building, Shortland Street. Real Estate Agents, Valuers, Auction- eera and Rent Collectors.

BURRETT, II. R., LTD., Yorkshire House. Estate Agenta and Valuers.

GREY, JNO. LTD.,M.R.E.I.N.Z.WinstOne Bldgs., 77 Queen St. ; Coromandel, Dargaville, Hamilton, Helensville. Kaikohe, Kaitaia, K&i K&i, Keri Keri, Kumeu, Maungaturoto, Paeroa Papatoetoe, Rotorue, Silverdale, Taumarunui, Tauranga, Te Puke, Wsiuku, Warkworth: Wellsford, Whakataue, Whangarel.

SAYERS, G. & SONS, Victoria Arcade. Valuers, Rent Collectors.

WALKER, GEO., LTD., 249 Queen St. Auctioneers and Estate Agenta, Probate Valuations a Speoiality.

Sharebroksru. FRATER BROS., 2 Swanson Street.

Est. 1872. Stock and Sharebrokers.

CHRISTCHURCH. FORD & HADFIELD LTD. A. K.

Hadfield ; C. E. Hoy; R. S. Beadel), 133 Worcester St. Real FaksFre Agents, Auctioneers and

HAMILTON. GEO. BOYES & CO., LTD., B.R.E.I., A.N.z.I.v., Alma Street, Hamilton. AuctiOnemJhtete Agents and Valuers.

GREY, JNO. LTD., M.R.E.I.N.Z., Auck- land. Hamilton Office : 175 Vic- toria St.

ALLEN HUGHES LTD. 90 Victoria St. P.O. Box 275. Phones: Bus. 41-355. Ree. 40.233.

HAWERA. FARMERS CO-OPERATIVE ORGAN-

ISATION SOCIETY OF N.Z., LTD. Auctioneers, Real Estate Agents, and Valuers.

HELENSVILLE. GREY, JNO. LTD., M.R.E.I.N.Z., Auok.

land. Office).

Helensville Office (Reg.

INVERCARGILL. RUSSELL HOSIE LTD., P.O. Box 306,

Land Agents and Auctioneers, F.R.E.I. (N.Z.)

KAIKOHE. GREY, JNO. LTD., M.R.E.I.N.Z., Auck-

land. Kaikohe Office. KAITAIA.

GREY, JNO. LTD., M.R.E.I.N.Z., Auck- land. Kaitaia Office : Commerce St.

KATI KATI.

SILVERDALE. GyL? JNO. LTD., M.R.E.I.N.Z., Auck-

Ellis). Silverdale Office: (R. F.

TAUMARUNUJ. GREY, JNO. LTD., M.R.E.I.N.Z., Auck-

land. Taumarunui Office : Kakahi.

TAURANGA. GREY, JNO. LTD., M.R.E.I.N.Z., Auck-

land. Tauranga Office : Nat. Bank Buildings.

TE PUKE. GREY, JNO. LTD., M.R.E.I.N.Z., Auck-

land. Te Puke Office : (R. Holmes).

WAIUKU. GREY, JNO. LTD., M.R.E.I.N.z., Auck-

land. Waiuku Office : Queen Street.

WARKWORTH. GREY, JNO. LTD., M.R.E.I.N.Z., Auok-

land. Warkworth Office : L. E. Ginn.

WELLINGTON. BAKER, HORACE, LTD. (L. A. Mc-

Alister, Mgr. Director), 233 Lamb- ton Quay. Real Estate Agents, and Valuers.

HESLOP, H. W. & CO., 778 Colombo GREY, JNO. LTD., M.R.E.I.N.Z., Auck- BETHUNE & CO., J. H., 154 Feather-

land. Kati Kati Office : M. G. Lusty ston St. St. (Vi&ode Sq.). Real Estate Auctioneers,

Real Estate Agents,

Agents and Valuers. HER1 KERI CENTRAL. ture Valuers. Property and Furni-

GREY, JNO. LTD., M.R.E.I.N.Z., Auck- Chief Agenta for Wel-

PENROSE, H. T. & CO., 183 Man- cheater St. and VaIuers.

Real Estate Agents

I

land. Keri Keri Central Office lmgton Sun Insurance Office, Ltd.

(C. R. Birchall). HARCOURT & CO. (Established 1888), KUMEU. Harcourt Chambers, 41 Panama St.,

A. R. SHERRIS & WILSON, 176 Here- GREY, JNO. LTD., M.R.E.I.N.Z., Auck- P.O. Box 151 ; Members of Real

ford St. Real Estate Agents, Auction. land. Kumeu Office : (N. Wilson). I

Estate Institute ; Registered Public

eers, Public Valuers. LOWER HUTT. Valuers ; Auctioneers : Share- brokers.

COROMANDEL. GREGORY, W. & CO., LTD., Land

GREY, JNO. LTD., M.R.E.I.N.Z., Auck- Agents, Valuers and Auctioneers.

bat.e)Coromandel Office : (H. V. LEIGHTON, H. ERNEST (E&d. 1902).

MAUNGATUROTO. 22 Brandon St., Wellington and

GREY, JNO. LTD., M.R.E.I.N.Z., Auck- High St., Lower Hutt. Assessors, Auctioneers.

Valuers,

DARGAVILLE. GREY, JNO. LTD., M.R.E.I.N.Z., Auck-

~~r~errf/IBuugetuoto Office : (R. J.

land. Dargaville Office: (G. R. NELSON. MEXTED & CO., R. G., 42 Waring-

Bellinghem). GREENSLADE, ALAN, Norwich Union Taylor St. Real Estate Agents and Chambers. Real Estate Agents Valuers.

DUNEDIN. and Valuers. H. C. CARTER LTD., 13 Manse St., NODWELL, A. E., & CO., 123 Willis

Box 761. Hotel Brokers and Valuers. JONES, B. B. & SON, 154 Hardy St.

Lmd Finance and Estate Agents. street. Estate Agents ; Business Real Estate Agents. NEW PLYMOUTH. and Hotel Brokers ; Valuers. A. E.

HARRIS, ALEX LTD., 377 Princes St. NOLAN, L. A. & CO., LTD., Devon St. NODWELL, B.A., A.E.R.I. (N.z.).

Fdee;, Agents, Auctioneers and Estate Agente, Auctioneers and Veluere. RAYMOND EDER, T. and G. Bldge.

PAEROA. Estate Agent and Sharebroker. IRELAND, L. J., LTD., 14 Manse St. GREY, JNO. LTD., M.R.E.l.N.Z., Auck- Reference Bank of Australasia.

Estate Agente, Auotioneera and Valuers.

lend. Road.

Paeroa Office : Normanby RENNER, FRANCIS M., Registered

LAND SELLERS LTD., 394 Princes PALMERSTON NORTH. Valuer ; 27 Grey Street.

Street. A. W. Berland, M.R.E.I.N.Z. BIRNIE COOMBS & WILSON, 90

MCKENZIE, R. S., LTD., Cromwell Rangitikei St. Real Estate Agents WELLSFORD.

Chambers, Dowling Street, Regi- and Valuers.

stered Valuers, Auctioneers, Real TENNENT, BLAIR, Share and Stock-

GI!fn$, JNO. LTD., M.R.E.I.N.Z., Adck- . Wellsford Office : D. A.

Estate Agents. Richard S. brokers, National Bank Buildings, Robertson).

McKenzie, F.N.Z.I.V., F.R.E.I.(N.Z.). P.O. Box 835.

PAPATOETOE. WHAKATANE.

JOHN REID & SONS LTD., 5 Liver- pool Street. Estate and Insurance

GREY, JNO. LTD., M.R.E.I.N.Z., Auok- GREY, JNO. LTD., M.R.E.I.N.Z., Auck-

Agents, Auctioneers and Valuers. land. Pepatoetoe Office : 482 Great

land. Office : Whakatane Hotel

South Road. Buildings.

Established 1876. GISBORNE.

ROTORUA. WHANGAREI.

BALL 8-s GRAWSHAW, 60 Peel St., GREY, JNO. LTD., M.R.E.I.N.Z., Auck- GREY, JNO. LTD., M.R.E.I.N.Z., Auck-

Real Estate Agenta and Valuers. land. Rotorus Office : 91 Old Taupe Roed.

land. Whangarei Office : Rathbone Street.

xii NEW ZEALAND LAW‘ JOURNAL July 5, 1965 ._ ~~ _~~~--~--.

The Salvation Army When preparing Wills please do not forget the urgent needs of The Salvation

Army. Your kindly interest will help us to carry on our work.

So many activities, covering Social work among the unfortunate, Homes for

Children, Rescue Work among Women, Shelters for Men, Police Court work and

helping of ex-prisoners, Eventide Homes for aged Women and Men, single The Army out as worthy of consideration.

Evangelical work is the primary aim of the Movement, and this is expressed in

regular open-air and indoor meetings, visitation, children’s and youth work for both

sexes. World-wide missionary and hospital service, where, among others,

New Zealand Officers minister to the Blind, the Lepers and other distressed people

in far away lands, is in constant operation.

IN A GOOD CIRCLE.

Children find shelter and security within the circle of a Salvation Army Home in New Zealand.

++r

For full particulars write to-

The Territorial Commander, The Salvation Army Headquarters,

204 CUBA STREET - - - - WELLINGTON

Printed in New Zealand by L. T. Watkiua Ltd. 176-186 Cubit St. Wellington, for the Proprietors of “New Zealand Law Journal,” Box 472, Wellington.