New Zealand

Law Journal ‘I We know that when the war is won we can, as we used to do, try to write into the laws of our country

our own economic beliefs. In the meantime and until then we can discourage and refuse to listen to the selfish, the greedy, the little-minded, to those who complain, to all those who seek to turn the times to their own use or profit, to all those who wish to divide US, to all those who deride and attack our democracy, the only system of government at present in the world which allows bad, ungrateful citizens to defaw,e it and yet remain alive. . . .

” We should say to ourselves we will put on a mental, a spiritual uniform of sacrifice and unselfishness and determination and we will only put it off when the war is u*on, when the ‘men and women of this generation can rebuild better and with more vision than w,e and our elders were able to do after the last war.”

-MR. A. T. DONNELLY, C.M.G., in an Anzac Day address, Christchurch, 1941.

=

VOL. xvii. TUESDAY, JUNE 17, I941 No. I I -

DEATHS IN THE SAME CALAMITY.

T he law relating to commorientes, or persons perish- ing at the same time in consequence of the same calamity, is likely to become of considerable impor-

tance in these days of sudden death on land and sea.

At common law there was no presumption of survivor- ship. Before the passing of s. 6 of the Property Law Amendment Act, 1927, the Courts in New Zealand applied the House of Lords’ decision in Wing v. Angrave, (1860) 8 H.L. Cas. 183, 11 E.R. 397, which laid down that there was no inference of law from age or sex as to which of the commorientes was the survivor, nor that they both died simultaneously, but that the ques- tion was one to be decided upon the circumstances proved in each particular case, the onus being on the party asserting the survivorship of either to prove his case.

In Reid v. Reid, (1909) 29 N.Z.L.R. 124, Mr. Justice Chapman had before him an originating summons which showed that a mother and t,wo daughters, her only children, perished in the loss of the Penguin, and there was no trace of evidence from which any inference could be drawn as to whether any one survived the others. As the law admitted no presumption as to whether the mother or the children survived, it treated the case as one giving rise to an unascertainable fact. The mother’s estate, therefore, had to be administered by her executor as if she had died intestate.

The principle of Wing v. Angrave was also applied in Cathcart v. Oeraghty, [1917] N.Z.L.R. 67, an action for recovery of insurance moneys.

The law was, however, altered by s. 6 of the Property Law Amendment Act, 1927, which provides that :

In all cases where, after the passing of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

-Referring to this section, the late Professor Garrow says in his Law of Wills and Administration, p. 224 :

The rule is an arbitrary one which will not necessarily express the true circumstances in every case of uncertainty if these could be ascertained ; but it is better that there should be a definite rule, even an arbitrary one, than that the title to property should be left uncertain. Cases coming under the rule may arise in various ways, but the reported cases are all cases where a testator and beneficiaries have perished in the same accident or catastrophe, where they have been commorientes. Such cases can arise from loss of life in motor-car accidents, aeroplane accidents, railway accidents, shipwrecks, massacres, or epidemics. Similar uncertainty as to survivorship may arise another way. If a ship is lost at sea with all on board but t,here is nothing to indicate the precise date of the loss or of the death of those on board, it may be impossible to determine whether a testator who was on the ship or a beneficiary under his will who died on land during the period of uncertainty concerning the fate of the ship was the survivor. The section provides an arbitrary solution of the difficulty.

It is a condit,ion of the presumption created by the section that the circumstances should render it uncertain which was the survivor, and this may arise either from the entire absence of evidence or from the evidence on either side being equally cogent. The position is, in fact, similar to that under the Code Napoleon, under which, as Lord Campbell said in Wing v. Angrave (supra) the circumstances proved must establish “ a perfect equipoise.” In many, or probably most, cases where there is any evidence at. all, a minute consideration of it will be required. Sometimes, however, there will be no difficulty in determining that the presumption arises, as, for example, where the deceased were swept away by the same wave and never seen a)gain, as in Wing v. Angrave ; or, as In the Goods of Ewart, (1859) 1 SW. & Tr. 258, where they left Cawnpore under the protection of Nana Sahib and all perished when their boat was upset in the Ganges ; or all perish in the same massacre, as in In the Goods of AZ&on, [1892] P. 142; or In re Beynon, [1901] P. 141,

122 NEW ZEALAND LAW JOURNAL June 17, 1941

where husband, wife, and children all died in the same massacre in China ; or, as in Re Good, (1908) 24 T.L.R. 493, where the bodies of two apparent suicides were found floating in a river tied together ; or, to use a more topical example, when they are all found dead in a motor-car accident. But even in such cases there remains the possibility that the evidence of some unknown person who witnesaed the disaster may be forthcoming at some later date. The question will often be one of extreme difficulty, since direct and con- clusive evidence, such as the fact that one of the deceased was actually seen, or proved by medical testimony to have been, alive after the other, or the somewhat gruesome evidence as to the shaking of the legs of one of two persons hanged together, upon which the title to property was determined in Broughton v. Randall, (1596) Cro. El. 503, 78 E.R. 752, will seldom be available.

Whether or not the uncertainty referred to in s. 6 means the absence of direct evidence, it is, however, clear that the Court can decide the question of survivorship upon evidence from which a jury would be justified in drawing the inference. Thus, t,hough mere conjecture founded upon the health of the deceased would be excluded : per Lord Chelmsford in Wing v. Angraae at p. 221, yet the evidence of medical men as to such facts as to the length of time in which asphyxia would, having regard to the state of health or sex of the person in question, result in death ; the effect of the consciousness of the ability to swim ; or, as in Taylor v. Diplock, (1815) 2 Phil. Etc. 621, 161 E.R. 1137, the probable effect upon the wife’s constitution

of the state of terror in which she was proved to be would be admissible in deciding the issue.

The section only purports to safeguard the personal representatives of the deceased and trustees and other persons transferring or dealing with property in cases where the presumption actually arises, and there is no provision for their protection when the payments have been made and fresh evidence is later fort,h- coming ; though in some cases they will be entitled to relief under s. 89 of the Trustee Act, 1908. It appears, therefore, that in most, if not all, cases an application to the Court is necessary when the title to property is involved.

It is the practice in all cases under the section to apply in the first instance for the grant of probate or letters of administration, and for leave to vary, if necessary, the usual form of oath ; and if there is any doubt, the Judge will adjourn the matter into Court. This has been the practice in England in doubtful cases since Re Roby, [1913] P. 1, A decision on the facts for the purposes of administration will thus be obtained, but this will not bind the interests of beneficiaries who are not parties. When the presumption arises under the section, this should be stated in the administration oath : see the form in T&ram and Coote’s Probate Practice, 18th Ed. 989.

The position as regards death duties on the estates of commorientes is different in New Zealand from that in England. This is of importance in considering the subject. Consequently, in our next issue, there will be a full discussion of the law as, in New Zealand, it now affects such estates.

SUMMARY OF RECENT JUDGMENTS. COURT OFARBITRATION.

Auckland. BROWN v. BROWN BROTHERS 1941. AND GEDDES. LIMITED.

May 28. Tyndall, J.

Industrial Conciliation and Arbitration Acts-Award-Wages- Factories Employer entitled to make Deductions from Weekly Wages “for time lost through the sickness or default of the worker “-Breakdown of Machinery-Temporary closing of Factory for cleaning or repairing the Machinery--Whether Deduction of Wages for lost Working-hours permissible- Factories Act, 1921-22, s. 32 (a)-Factories Amendment Act, 1936, ss. 12, 19.

An award provided, in respect of female workers hired on a weekly basis, that the employer might make deductions from the weekly wages prescribed therein “for time lost through the sickness or default of the worker.”

As a result of a sudden breakdown of machinery in a factory and consequent temporary closing, two days’ pay of some female workers was deducted because of loss of working-time due to the breakdown.

On a claim for recovery of a penalty for breach of the award,

Held, That notwithstanding the provisions of s. 32 (a) of the Factories Act, 1921-22 (as amended) or of ss. 12 and 19 of the Factories Amendment Act, 1936, the adult female workers were employed under the award on a weekly basis, and no deductions from their wages were permissible except for time lost through the sickness or default of any such worker.

Bolland v. Wellington Woollen Manufacturing Co., Ltd., (1913) 14 Bk. of Awards, 697, referred to.

Brown v. Manawatu Knitting Mills, Ltd., [1937] N.Z.L.R. 763, G.L.R. 500, distinguished.

SUPREMECOURT. New Plymouth.

1941.

J

DOODY AND OTHERS March 6 ; May 13. COMMISSION& OF TAXES.

Smith, J.

Public Revenue-Income-tax-Infant Beneficiaries’ Inwme- Exemption-Income ” derived by a beneficiary entitled in possession to the receipt thereof under the trust during the same income year “--Assessment of Income of Infant Beneficiary where part Income, applied towards Maintenance, &c., and part Accumulated--” Entitled in possession “-Land and Income Tax Act, 1923, s. 102 (a)-Land and Income Tax Amendment Act, 1939, s. 27.

An infant, who cannot during the income year demand the receipt of his income or sue for it but must submit to the accumulation of any unexpended balance by the trustee at his discretion cannot be said to be entitled in possession to the receipt of that income under the trust during the same income year.

In re Yates’s Trrwt, (1851) 21 L.J.Ch. 281, and West v. Miller, (1868) 37 L.J.Ch. 423, referred to.

A beneficiary in order to come within the description in s. 102 (a) of the Land and Income Tax Act, 1923, as amended by s. 27 of the Land and Income Tax Amendment Act, 1939, of “ a beneficiary entitled in possession to the receipt of income under the trust during the same income year ” must not only have a right to the income, but must, even if it is absolutely vested, be entitled to actual receipt thereof under the terms of the trust during the income year in question.

Where under their trust and pursuant to s. 113 of the Trustee Act, 1908, trustees may apply any income of the share of an infant, at their discretion, in any year towards the infant’s

June 17, 1941 -

NEW ZEALAND LAW JOURNAL 123

maintenance, education, or benefit, and must accumulate the residue of the income for the infant or his personal representa- tive if he should die before attaining twenty-one years of age, the b&nce of the income not actually applied for the benefit of the infant during the income year is properly assessable to the trustee under the first part of s. 102 (6) of tho Land and Income Tax Act, 1923, as amended by s. 27 of the Land and Income Tax Amendment Act, 1939 ; and no deduction may be made by way of special exemption.

Counsel : Middkton, for the appellauts ; ~~acc&zr~ for the respondents.

Solicitors : Monaghan and Middleton, Now Plymouth, for tho appellant ; Crown Law Offce, Wellington, for tho respondent.

Cnse Bnnotation : Re Yaks’s Tsrust, E. and E. Dig&, Vol. 44, p. 1168, para. 10113 ; West v. &filler, ibid., p. 1068, para. 9210.

SUPREME COURT. \ Auckland.

1941. WHITE v. WHITE. May 23.

Bkoir, J. I

Practice--Counterclainl-Joi,nde~ of Partiefi--C’ause of Action by Defendant ugainst Phintiff jointly with Another Peyson-~- Independent OT Alternative C:Laiv~--C’ode of C%uivil I’roccrlztre, RR. 61, 90, 130, 134.

A defendant in a Supreme Court action cannot in a counter- claim add as a defendant thereto a person ega,inst whom he alleges an independent or alternative claim arising out of the same series of transactions as that on which the counterclaim is based.

Pendeer v. Taddei, [1898] 1 Q.B. 798, applied.

Counsel : Sexton, respondent.

for the applicant ; Wallace, for the

Solicitors : Sexton and Manning, Auckland, for the applicant ; G. P. Finlay, Auckland, for the respondent.

Case Annotation : Pen&r v. Taddei, E. and E. Digest, Vol. 40, p. 413, para. 355.

COMPENSATION COURT. Christchurch. \ WALTON v. UNION STEAM SHIP

1941. May 27, 29.

O’Rcgan, J.

COMPANY OF NEW ZEALAND, LIMITED.

wo?kers Compensatio+General-Claimant resident out of New Zealand-Motion for Security for Costs-Onus of Proof- Workers’ Compensation Act, 1922, 8. 44.

On a motion by the defendant in an action for compensation I)rought by a person resident out of New Zealand that further proceedings be stayed until the plaintiff has given security for vests, the onus of proof is on the defendant to satisfy the Court t,hat the plaintiff has no reasonable ground for coming to the Court.

Rovso v. Skinner, (1907) 9 G.L.R. 530, referred to.

Counsel : 1’. A. Gresson, for the plaintiff; Walton, for the defendant.

Solicitors : Leicester, Rainey, and MC Carthy, Wellington, for the plaintiff; Duncan, Cotter%, and Co., Christchurch, for the defendant.

WESTMINSTER HALL. A Shrine of Memories.

By STEPHEN H. MOYNACH.

To-day, England stands, with Poland, a land of desecrated shrines-desecration that has come to all creeds and classes ; Coventry’s Cathedral, a gift of the eleventh century, is now but a memory alike with Southwark, the first pledge of the new toleration of the nineteenth. The non-conformist admirer of the Temple Church shares his grief with the lover of Westminster Abbey : all are united in a common bond of sympathy, sorrow, indignation. Amidst these ruins stands Westminster Hall, the crib of England’s and America’s legal systems. Its charred and broken ribs of oak, hewn in the Leinster forests and sent over to William Rufus by the McMurrough-Kavanagh to roof his new building, now, for the first time, after some nine hundred years stand exposed to the elements that nurtured them as saplings. Through all the changing centuries, placed there by a curious coincidence, by probably England’s worst and most tyrannical King, they kept watch and ward over, and, saw the birth, growth, and development of England’s Common Law.

History teaches, and teaches us in diapason tones, that no dictator ever gained experience or acquired wisdom from the lessons of the storied past. Hitler and his advisers (save and always excepting the Mercury-like Hess) are running true to the axiom ; and, when Hitler thought that by shattering West- minster Hall he was shattering the soul of England, he forgot that once a frail girl’s body was burned in

Rouen and that from its scattered ashes arose a Saint and a New France, and that from the cinders of the fiery Florentine arose a new Reformation. And, though he may level the walls of the old Hall that Rufus built, from its ruins will spring up a new tabernacle to enshrine in its sanctuary the Spirit of England’s Law ; mankind’s charter of liberty ; and the sacred Books of the old English ordinances-laws that ordain that no Englishman shall ever be serf to tyrant or dictator. The old Hall may go, but what matters that ‘1 It was once written about men that “ to live in the hearts of those we love, is not to die ” ; and this is true of everything else he loves as well. The Hall is so enshrined in the hearts of our countrymen and of our kith and kin across the Atlantic, that it will ever live on, even though levelled to the ground it may be ; and, in its renaissance, it will again shelter all the glories and traditions that the old Hall fostered. Ghost-tormented Hitler may think it naught to murder his most intimate friends, and then proceed to breakfast ; but even to his diseased brain it must even now be apparent that English tradition and English inspiration and English ideals cannot be “ liquidated ” in the same summary way.

The Saxon Kings founded a monastery on the marshy ground then surrounded by the Thames, and called “ Thorney Island ” : the chapel of this monastery was called “ West-minster,” in relation to its direction from the township of London. Here, too,

124 N%W ZEALAND LAW JOURNAL June 17, 1941

a royal palace was erected, and it was enlarged by Edward the Confessor. When William the Conqueror took possession of the palace, he deplored the fact that it contained no hall in which justice could con- veniently be administered, but he was too much occupied to supply the defect. But William Rufus built, adjoining the palace, the magnificent Hall that was the largest single room in Europe. This being completed at Whitsuntide, 1099, the Chief Justiciar, Flambard, sat there in the following Trinitv Term, and the superior Courts of Justice were held in it for just on 800 years.

Westminster Hall has in parts suffered from bad reconstruction, during which some fine old Norman work was uncovered and destroyed. It was remodelled during Henry III’s reign, and again during the closing years of the luckless Richard II (1397-1399), but the Hall itself, saving for its windows and higher walls, is what it was when finished in 1099. The roof, universally admitted to be one of the finest in the world, was found some few years ago to be badly- ravaged by a species of beetle, and it was lovingly restored. There was a curious legend current that Irish oak wa,s used because spiders could not live in it, but the reasons for its use were very much more substantial. Had it possessed the same immunity from the beetle as it was credited to possess from the spiders, the roof would have been up to the present time just as it was left by the Norman carpenters. When glancing around the Hall, one noted sorrow- fully, reminiscently, the carvings of the White Hart oouchant, Richard’s favourite device.

From the earliest times the Hall assumed a national character, for here were held the early Grand Councils, the predecessors of Parliament ; and some of the early Parliaments themselves. It was also used as the place for the Law Courts until the opening of the new Law Courts in the Strand in 1882. Some idea of the immense size of the building can be obtained from the fact that the Exchequer Court could, and did, sit at the entrance-end and the Courts of Chancery and the King’s Bench simultaneously at the opposite end, on the right and left respectively, both remaining open to the Hall, and a bar being erected to keep off the multitude from pressing on the Judges. Amongst other Courts carried on in the building were the Court of Common Pleas.

The origin of the different Courts in Westminster Hall is traced to the description of the Aula Regis, the great tribunal which had its headquarters there. These Courts, as Lord Campbell, L.C., observes were “ like the formation of the planetary system from the nebulous matter of which some philosophers tell us it is composed.” Magna Carta itself provided that the Court of Common Pleas should be held “ in a certain place,” and a corner of Westminster Hall was fixed upon for that purpose. Here, too, the Chancellor, on account of his superior dignity, had placed for him a great marble table, to which there was an ascent by five or six steps, with a marble chair by the side of it. On this table writs and letters patent were sealed in the presence of the Chancellor sitting in the marble chair. Here, he received and examined the petitions addressed to him.

When all these Courts were sitting concurrently, the Hall must have presented a very animated spectacle, and it is recorded that when Peter the Great was taken into the Hall he inquired who were the many folk there arrayed in wig and gown. Be was

told they were lawyers-“ Lawyers ! ! ” he answered in amazement “ Why I have but two in my whole dominions, and I believe I shall hang one of them the moment I get home.” But the old Hall also suffered at the time profanation of a milder character. One would hesitate to believe it, but the authority seems convincing. In Wheatley’s Lonhn : Past and Present, at p. 484, it is said “ Besides the Law Courts, a part of Westminster Hall was taken up with the stalls of booksellers, law stationers, seamstresses, and dealers in toys and small wares, the rents and profits of which belonged by right of office to the Warden of the Fleet.” This is a citation from Laud’s Diary, p. 45, from which it would appear that this fall from the Hall’s ancient dignity was somewhere round the reign of Charles I. These shops were a potential danger to the old building, for we find it recorded that “ The Hall was found on fire Sunday February 20, 1630 ” by the burning, as Laud further records in his diary, “ of the little shops or stalls kept therein.”

The Coronation Dinners which were a feature of the crowning of the sovereigns right up to the reign of George IV, were held in this Hall : at these, the Sov- ereign’s Champion, Dymocke, rode a fully-caparisoned horse into the Chamber, and threw down his gauntlet in the King’s behalf. It was also from time to time the depository of the banners taken from Charles I at the Battle of Naseby ; from Charles II at the Battle of Worcester, at Preston, and Dunbar ; and, later on, those taken at the Battle of Blenheim.

Many other more dramatic scenes and terrible did these old walls witness.

Hither, to the Court of Chancery, in great state, came Wolsey, the Chancellor, on his caparisoned mule, with his crosses, his pillars, his hat, and the Great Seal, in procession from York House. A vivid description of this oft-observed pageant is given, in the words of an eyewitness, by Campbell in his Lives of the Chancellors. A few years earlier, the walls of Westminster Hall had looked down on a more charmingly human picture. For centuries the Courts of England were there in plain sight of one another. , As More was being installed as Chancellor under Henry VIII, he stopped in his progress to the marble chair and knelt to receive a blessing from his father, a Judge sitting in the Common Pleas.

Here again, was staged the “ trial ” of that herioc Chancellor and Martyr, now Saint Thomas More. It is perhaps a misuse of terms to use the word “ trial.” The fact is here he was condemned to death after certain “ mummeries ” were observed But one fact we may be assured about : he prayed for his faithless King on the scaffold. In Heaven to-day he is praying for his beloved land and its people ; and one may hope and think his kindly intercession will be offered for the preservation of the Hall where he administered Justice, the model for all Judges to come and the pattern for all practising lawyers. He belongs to no class or creed ; to no division. He is of all time, and to all time, the glory of the legal profession either in the arena or in the exaltation of the Bench.

Again the Hall witnessed another very different trial, in some respects no less poignant from its story of human frailty. There in the presence of the King and of Wolsey was tried Queen Anne Boleyn with her brother and several others ; and amongst the Judges

June 17, 1941 NEW ZEALAND LAW JOURNAL 125 .--__-_

who condemned her was her uncle. The question of her guilt or innocence will only receive its final solution

A last glimpse and we see the Hall shrouded, this

on that great day when the secret of every riddle will time in black, and the great and poor of the land pass

be unfolded. a bier in solemn procession. The well beloved George V is taking farewell of his subjects. No cards of invita-

Now another trial is being held in the old Hall and tion were issued here. The only summons is the love this time an anointed King is the prisoner. The Hall Of his People. No storm troopers are required is hung with scarlet cloth, and, friendless in the Hall, and kindly officials assist the women and little ones the King confronts his Judges. He disdains to make who press to take a respectful farewell of the son of any defence to the Judges, his perjured subjects, and the Peacemaker, their father and friend, who strove he is condemned ; nothing more dignified will be seen and fought to give peace a perpetual abiding-place again in that Hall. Only one shaft of humour on earth ; and who now, sleeping, holds his last Court illuminated the direful proceedings. Lord Fairfax’s, name was called to take his place amongst the Judges

amongst, not the great of the land alone, but the poor and lowly whom he served until death. And then the

when his impetuous but indiscreet wife, probably thinking aloud, prophetically remarked, “ he has more

great Hall falls back into its watch and ward again- part of the immortal soul of England.

wit than to be here.” Years after proved her wisdom, and trials of great personages succeed one another in

No other building in the King’s dominions affords so

solemn pageant. What a litany of noble names they many legal memories. It has listened to the judg- ments of Pateshull and Raleigh and Gengham. Here,

make-Kilmarnock, Balmerino, Lovat, the Seven Gascoigne, Fortescue, Brian, Littleton, Dyer, Coke, Bishops, Byron, Ferrers, and the Countess of Kingston. and Bacon sat. Within its walls, Hale and Later on, Warren Hastings faces the tribunal, when Nottingham, Hardwicke and Mansfield, wrote the law the Hall resounds with the eloquence of Burke and of England. Sheridan ; and then the last trial (Lord Melvills’s)

The great forensic eloquence of eight

takes place in 1806. hundred years re-echoed from its rafters, in the case

Westminster Hall also had other solemn moments of the Ship-Money, in the trial of the Seven Bishops, and, again, the perfect oratory of Erskine in Hardy’s

because it was here that Oliver Cromwell was case, and Brougham in the Queen’s case, These are inaugurated as Lord Protector, and not, in the (to among the memories that, make the solid Norman him) rather depressing atmosphere of t’he Abbey. Hall the most interesting spot in England to those We are told, again to cull from Wheatley, that “ he was who follow the law as a profession. dressed in a robe of purple velvet lined with ermine, on a rich cloth of State with the gold sceptre in one

Hitler may send his screaming bombs to burn the

hand, the Bible richly gilt and bossed in the other, old oaken roof and to smash the history-worn walls.

and his sword at his side.” Surely not a bad setting But, conscious in the knowledge that we with America

for one who purported to disdain “ baubles.” But, and the Allies, are fighting this battle solely for truth

four short years later, the Hall staged another scene, and Christianity against the concepts of pagan inspira-

for we read of Cromwell that “ his head was set upon tion and diabolic guidance, England and the old HaU

a pole, with the skull of Ireton on one side of it, and the watch the shadows darken into night restfully conscious that the new dawn breaks now from over the Western

skull of Bradshaw on the other.” horizon.

---

LONDON LETTER. ---

Somewhere in England, May 16, 1941.

My dear EnZers,- The Qualifications for an Ambassador.-1 learnt last

evening from the B.B.C. that you, in New Zealand, are contemplating an embassy at Washington. It may interest you to have an American opinion of the highest rank as to the qualifications your Minister at Washington should possess. Dr. Nicholas Murray Butler, President of Colombia University, a man of great influence and importance in the United States, has been a power behind a long succession of Presidents, a leading figure in political life and an advisor of several Administrations on its foreign poliey. This is what he says in his recent book, Across the Busy Years :

“ Having many times declined to be an ambassador to one of the chief capitals and having known all the ambassadors for a lifetime, I have acquired some very distinct ideas concerning them, their qualifications, and their duties. The day is past when an ambassador is wholly satisfactory if he confines himself to the effec- tive representation of his government in its business with another government. The useful ambassador must now be ambassador to a people as well as to a government. He must and should appear on various occasions, academic, literary, scientific, social or other,

and participate by spoken word in dignified and honourable fashion. He must and should meet all sorts and conditions of people in the country where he is at the moment accredited. All this means that the so-called service man who has come up from the ranks in the diplomatic service is usually the poorest possible person to appoint as ambassador to a capital such as London or Paris or Rome or Berlin or Madrid or Tokio. He has been too long out of touch with his own country- men to render the type of ambassadorial service which is now so important. The most useful type of ambassador at such posts is a man of personal distinction and professional achievement, chosen in later middle life with his reputation thoroughly well made, who has both the independence and the competence to speak for the people of the United States as well as for the Government. . . . James Bryce was by far the most effective ambassador that Great Britain ever sent to Washington.”

Uniform in Court.-For general guidance the Bar Council has passed the following resolution : “ Except in cases where the barrister is serving with the Armed Forces of the Crown, and is required to wear his uniform while so serving during the war, a barrister should not appear in Court in uniform and should wear robes in the usual way.”

Yours as ever, APTERYX.

126 NEW ZEALAND LAW JOURNAL ______~____~.

June 17, 1941

ROAD TRAFFIC AND WAR EMERGENCY REGULATIONS.

II. The Regulations as they Affect Heavy Traffic and the Commercial Operator.

By R. T. DIXON.

The first part of this article (an& p. 114) dealt with the Emergency Regulations as they affect the private car owner. Now, the regulations will be considered so far as they concern other forms of traffic, principally commercial and heavy traffic.

TRANSPURT LICENSING. The Transport Licensing Emergency Regulations,

1940 (Serial No. 1940/137), as amended by its Amend- ment No. 1 (Serial No. 1940/173), shorten to seven clear days the notice required to be given by Licensing Authorities prior to reviews of licenses (s. 8 of Transport Licensing Amendment Act, 1936) and the period within which an appeal must be lodged against any decision of a Licensing Authority.

The Transport Legislation Suspension Order, 1940 (Serial No. 1940/272), exempts from the root require- ments of the Transport Licensing Act, 1931, any vehicle owned by the Crown while driven by a member of the Armed Forces.

Regulation 3 of the Motor-vehicles Emergency Regulations, 1940 (Serial No. 1940/256), enables the Commission of Transport to issue a motor-driver’s license free of charge to a member of the Armed Forces, who is required, as such, to drive a motor-vehicle.

His Majesty’s Forces (Motor-cyclists) Suspension Order, 1941 (Serial No. 1941/68) exempts any motor- cyclist who 1s a member of the Armed Forces and who rides a, motor-cycle of those Forces from the provisions of Reg. 8 of the Motor-drivers Regulations, 1940 (Serial No. 1940/73), which contains restrictions applic- able to novice riders. Notably, an L plate does not require to be fitted to the motor-cycle in such a case.

FARMERS’ VnnIcLns. An important concession to farmers is provided by

the Transport Legislation Suspension Order, 1940 (No. 2), (Serial No. 1940/319). Under this, a motor-vehicle, if owned by a farmer, used only in the farming business, and operated on the roads only in going from one part of the owner’s farm to another (including adjoining and adjacent farms) is exempted from license fees. As to the meaning of the word “ adjoining,” see n’ew Plymouth Borough v. Taranaki Electric-polcer Board, [1933] N.Z.L.R. 1128.

Regulation 2 of the Motor-vehicles Emergency Regula- tions, 1940 (Serial No. 19401256) has the effect of extending the concession given for farmers’ trucks by Regulation 10 (1) (e) of the Heavy Motor-vehicle Regula- tions, 1940 (Serial No. 1940/78). Under the latter provision, the heavy traffic fees on farmers’ trucks weighing up to five tons gross are fixed at only half of those ordinarily payable, and Reg. 2 of the Motor- vehicles Emergency Regulations, 1940 (Serial No. 1940/256), provides that this concession applies to tractors and trailers, and also to trucks even if the

trucks are used for carriage of a neighbour’s milk or whey to or from the factory.

HEAVY TRAFFIC.

A deduction of one-quarter of a ton weight is per- mitted by Regs. 4 and 5 of the Substitute Fuels Emergency Regulations, 1940 (Serial No. 1940j241) in assessing the weight of a motor-vehicle fitted with producer-gas apparatus (or similar petrol-saving appli- ances) for the purposes of ascertaining the road limita- tions applying to the vehicle or the heavy-traffic fees payable.

The Heavy Motor-vehicle Emergency Regulations, 1941 (Serial No. 1941/78), apply principally to vehicles which have been impressed by or sold or hired to the Crown for war purposes, inclusive of the purposes of Emergency Precautions Schemes. By reason of the regulations refunds of heavy-traffic fees are made available to the owner in such cases, and a farmer does not lose the above-mentioned concession of heavy- traffic fees on his truck by reason of its being loaned or hired to a Home Guard Committee, Emergency Precautions Committee or the Army.

The Army Authorities have now used the powers in the Motor-vehicles Impressment Emergency Regula- tions, 1939 (Serial No. 1940/39) for the impressment of hundreds of the more modern types of truck. A11 Amendment No. 1 (Serial No. 1941/47) of the regula- tions enables the necessary steps to be taken in readiness well in advance of the actual assumption of possession. Regulation 4 of the principal regulations is amended by Reg. 10 of the Emergency Precautions Regulations, 1940 (Serial No. 1940/187) so that the power to impress vehisles for emergency schemes is vested in the Director of National Service.

The general scheme of the regulations is that the vehicle requirements of the Armed Forces and the Director of National Service are made known to the Chief Impressment Officer (Registrar of Motor-vehicles), who arranges for the issue of Warrants of Impressment of the vehicles. It is then obligatory for the owner to deliver the vehicle to the place and at the time mentioned in the warrant. There is no provision for appeal iu the regulations ; but it is understood that officers of the Transport Department are sent around to hear appeals and that their recommendations for release of the vehicles are generally followed by the authorities.

Regulations 10, 11, and 12 deal with the valuation of and payment for the vehicles ; and there is provision for arbitration on the value if the owner desires to take this course.

The Chief Impressment Officer is authorized to publish in the Gazette a notification of the vehicles taken over so that any encumbrancers on the vehicles may take steps to protect their interests in the pay- ments.

(To be continued.)

June 17, 1941 NEW ZEALAND LAW JOURNAL 127

TRANSFER BY WAY OF SUBDIVISION. Including Granting and Reserving Easements (Drainage,

Sewage, and Rights of Way). ---

By E. c. ADAMS, LL.M.

In the present case, the executor A. B. has divided Blackacre into six building lots. The precedent is a transfer of Lot 3 to a purchaser embodying all necessary easements and covenants.

There is a drainage easement running through Lots 2, 3, 5, and G and intended to be used as common to Lots 2, 3, 4, 5, and 6. through part of Lots 1,

There is a right of way running 2, and 3. intended to be used

by the owners of those lots.

I.-EXPLANATOICZ NOTE.

Great care is to be exercised in creating easements as part of a scheme of subdivision. The important thing to remember is that, subject to some exceptions which may arise by the grant of Mining Privileges under the Mining Act, a person cannot have an ease- ment over his own land. The applicable maxim is, Nulli v-es sun servit. An easement is in its very nature a jus in re aliena. Therefore in the present instance whilst A. B. remains the registered proprietor of Lots 4, 5, 6, and 2 he cannot for example create a registrable easement over Lot 2 in favour of either Lots 4, 5, or 6. Moreover as the legal estate or interest under the Land Transfer Act does not pass until registra- tion, each transfer must be registered in strict chrono- logical order according to its respective date of execu- tion. Where different solicitors act for different pur- chasers, there is a real risk that the trsnsfers may be registered out of turn, causing complications, which may result in the rejection of the transfer by the Land Transfer Office, or which may have to be eventually remedied by release and the creation of new easements by fresh instruments. One possible result of a transfer being registered out of turn is that, the lot transferred may purport to have appurtenant to it an easement which has not yet been registered and consequently not yet created at law.

In the subdivision of which the following precedent was a part, Lot 3 was the first lot to be transferred. It was necessary to create as appurtenant to it, drainage and sewage rights over part Lot 2, as Lot 2 was situated between it and the public drain to which connection was sought ; it was also necessary to reserve over Lot 3 similar rights appurtenant to Lots 4, 5, and 6 and a right of way over another part appurtenant to Lots 1 and 2.

If the next lot to be transferred is Lot 6, that lot will already have appurtenant to it the drainage and sewage easements over part Lot 3 created by the preceding transfer, but it will be necessary to create as appurtenant to it similar easements over Lot 2, for Lots 2 and 3 are situated between it and the public drain to which connection is sought. It will also be necessary to reserve over part Lot 6 similar rights appurtenant to Lots 4 and 5, which last two lots are

farther from the public drain than Lot 6 And so on as each lot is transferred.

Clauses 3 and 4 create easements by reserzatiovl. Alternatively C. U. the purchaser when registered as proprietor of Lit 3 could create such easements by a separate memorandum of transfer, but this method would involve slightly more stamp duty and registration fees. The creation of easements by yPScTration,~is a well recogni-ed method b&h in England and New Zealand and by usage it has become adapted to our Land Transfer system. But both the transferor and trtnsferee should execute such transfers : (Durham and Sunderland Railway Co. v. Walker, (1842) 2 Q.B. 940 ; In re Rutherford’s Cbnteynnce, Goadley v. Bartlett, (193X) 54 T.L.R. 429). The reservation operates as a

grant of the easement from the transferee to the transferor.

The stamp duty payable on the transfer is only 3s. as ad calorem conveyance duty amounting to X5 16s. was paid on the agreement for sale and purchase. The granting and reservation of the easements do not attract any further stamp duty. The reservation of the easements is treated as something subtracted from the land sold, whilst the grant of the easement appurtenant to the lot sold is considered as being accessory to the agreement for sale and purchase. It is a well-recognized principle of stamp law that an instrument is sufficiently stamped, if stamped for its leading object, the leading object in this case being t,he sale and purchase of Lot 3.

There is only one registration fee payable, (10s.). Land Transfer Regulations 42 and 44 dated January 22, 1914, do not apply so as to make more than one registra- tion fee payable. In addition a new title fee of Sl must be paid.

The consent of the Borough Council endorsed on the transfer is necessary under s. 184 of the Municipal Corporations Act, 1933, which a’pplies to the granting of rights of way in cities, boroughs, and town board districts. The local authority had previously approved of the subdivision under s. 332 of that Act,, but that, approval was not per se a consent to the granting of the right, of way-under s. 184. ̂ The effect of s. 174 (6) ̂ _ .‘ ot that Act is, that no right of way laid out m a cuy, borough, or town board district must exceed twenty feet in width measured at right angles to its course. There appear to be no statutory restrictions as to the laying out or granting of rights of way outside a city, borough or town board district, except s. 17 of the Land Act, 1924, which provides that save with the consent, of the Minister of Lands, every right of way in towns laid off on Crown Lands or on private lands shall be of a width of not less than 66 ft. ; but town in that Ast has a specially restricted meaning and does not mean a ” town ” in the popular conception of that term.

128 NEW ZEALAND LAW JOURNAL June 17, 1941

It is defined as any parcel of land outside a borough (a borough including a city) or town district divided into areas for building purposes. In practice it boils down to this ; if the right of way is in a subdivision outside a borough, city or town board district, which subdivision has already been, or which must be approved of, by the Minister of Lands, then the statutory restric- tion imposed by s. 17 applies : otherwise it, does not apply.

The registration of the fencing covenant created by cl. 5 is authorized by the Fencing A& 1908. As t,o the effect of such a fencing covenant see Nunn v. McGowan, [1931] N.Z.L.R. 47, [1930] G.L.R. 501.

Clause 6 is necessary because the transferor is covenanting as executor of the deceased owner and he desires to limit his contractual liability accordingly. The inclusion of such a clause in a Land Transfer instrument cannot now be objected to (see s. 9 of the Land Transfer Amendment AGO, 1939). The import- ance of cl. 6 is also obvious, if we reflect that some of the covenants may be personal and may bind a pur- chaser of a lot after he has transferred same. hach purchaser should therefore obtain a deed of covenant from his purchaser that the latter will carry out the covenants and indemnify him from all actions there- under and each successive purchaser should protect himself similarly : Cator v. Newton, [1940] 1 K.B. 415, [1939] 4 All E.R. 457.

lI.-PRECEDENT.

WiIEREAS A. B. of Wellington, baker, hereinafter called “ the vendor ” as executor of the will of Y. Z. late of Wellington, retired carrier being registered as proprietor of an estate in fee-simple subject however to such encumbrances liens and interests as are notified by memoranda underwritten or endorsed hereon, in that piece of land containing perches more or less situated in the Provincial District of being portion of suburban section town of and being Lot 3 on a plan deposited in the Land Transfer Office at under No. and part of the land comprised in Certificate of Title Vol. Folio Registry AND

WHEREAS by agreement for sale and purchase dated February 1, 1941, the vendor for the consideration hereinafter appearing and in exercise of the powers vested in him as such executor as aforesaid has agreed with C. D. of Wellington, schoolmaster, (hereinafter called “ the purchaser “) for the sale to the purchaser of the said piece of land but together with and subject to the easements hereinafter set forth. Now THIS MEMORANDUM OF TRANSFER WITNESSETI~ as follows:

1. In consideration of the sum of FIVE HUNDRED POUNDS paid by the purchaser to the vendor (the receipt of which sum is hereby acknowledged) the vendor in pursuance of the said agreement and in exercise of the powers of sale vested in him as afore- said doth hereby transfer to the purchaser all his estate and interest in the said piece of land above described.

2. For the consideration aforesaid the vendor doth hereby transfer and grant to the purchaser and his assigns and the owner or owners for the time being of the land above described the full and free right and liberty to construct and use a sewer or drain beneath

that part of Lot 2 on the said deposited plan being 4 ft. in width which is marked thereon “ drain easement ” in common with the vendor and the owner or owners for the time being of Lots 2, 4, 5, and 6 on the said plan and in common with all other persons for the time being , having like rights for the purpose of connecting with the main sewer and for this purpose by his the purchaser’s agents and servants at any time or times to enter upon the said part of Lot 2 to make repair and maintain such connections with the said sewer or drain as may be reasonable and proper in that behalf the purchaser making good nevertheless at his own expense all damage and disturbance which may be caused to the surface of the said Lot 2 AND THE VENDOR for himself and his . executors administrators and assigns and the owners for the time being of the said Lots 2, 4, 5, and 6 and the purchaser for himself his executors administrators and assigns and the owner for the time being of the land hereby transferred DO HE:RERY MUTUALLY COVENANT

the one with the other of them that they will not nor will either of them disturb the said sewer or any sewer that may hereafter he constructed beneath the said part of the said Lot 2 or allow the same to be disturbed in any manner whatsoever except for the purpose of repairing renewing or relaying the same or of effecting another or other connections therewith and will at all times promptly observe and comply with all requisitions and regulations in relation thereto of the - Borough Council or any like body in so far as the same are capable of being observed or complied with by the parties hereto and those claiming by through or under them and will not permit to be done anything whereby such sewer or sewers may become blocked or unfit for use and should such sewer or sewers become blocked or unfit for use then the cost of removing such blockage or of repairing the same shall be borne by the parties hereto or their respective executors or administrators or by the owner or owners for the time being of the said Lots 2, 3, 4, 5, and 6 respectively in equal shares per lot except in respect of any blockage or repair in a part of such sewer of which any such owner or owners does not then make use in which case such cost shall be borne equally per lot by the remaining owners or owner and provided always that notwithstanding any- thing hereinbefore contained if it can be shown that the said sewer or sewers had become blocked or rendered unfit for use by t,he neglect or default of either or any party then the cost of repairing rein- stating or clearing such sewer shall be borned by the party at fault.

3. In consideration of the foregoing transfer there shall he reserved and the purchaser doth hereby transfer and grant to the vendor and his executors administrators and assigns and the owner or owners respectively for the time being of the said Lots 4, 5, and 6 on the said plan a like right mutatis mutundis in common with the purchaser a,nd other persons now or hereafter having a

like right over and in respect of that portion of the land hereby transferred being 4 ft. in width which is on the said deposited plan marked “ drain easement ” for the purpose of connecting with the main sewer by means of a sewer or drain constructed or to be con- structed under the said part of the land hereby trans- ferred and the said part of the said Lot 2 described in the preceding clause hereof and the parties hereto and their respective executors administrators and assigns and successors in title shall have the like rights a,nd powers and shall be subject to the like duties and

June 17, 1941 NEW ZEALAND LAW JOURNAL 129

liabilities mutatis mutandis as are in the preceding clause hereof declared and provided for in respect of the drainage rights therein set forth.

4. For the consideration aforesaid there shall be reserved and the purchaser doth hereby further transfer and grant to the vendor and his executors administra.t,ors and assigns and the owner or owners for the time being of Lot 1 a,nd the said Lot 2 on the said plan as and in the na+ure of an easement appurtenant respectively to the said Lots 1 and 2 the full and free right liberty and license for him the vendor his tenants agents workmen licensees and invitees and all persons lawfully using the same in common with the purchaser from time to time and at all times by day or by night for ever hereafter to pass and repass on foot with or without horses or domestic animals of any kind and with or without goods or implements of any kind over and along all that portion of the piece of land hereby transferred which is coloured pink on the said deposited plan for the purpose of giving access to and from the said Lots 1 and 2 and to and from the public road shown on the said plan and known as Street.

6. And it is hereby agreed and declared that the vendor shall not be liable to pay or contribute towards the cost of the erection or maintenance of any fence or fences between the land hereby transferred and any

.

adjoining land and property of the vendor but this proviso shall not enure for the benefit of the purchaser of such adjoining land or any part thereof.

6. And it is hereby further agreed and declared that the liability of the vendor under and by virtue of these presents shall be limited to the assets of the estate of the said Y. Z. from time to time in the hands of the vendor as executor of the said Y. Z. and available in the ordinary course of administration for the payment. and satisfaction of such liability at the time or respec- tive times when demands shall be made in writing upon the vendor for the payment or satisfaction thereof IN WITNESS WHEREOF these presents have been executed this day of 1941. SIGNED by the said A. B. as vendor, 1 in the presence of :- I SIGNED by the said C. I>. as purchaser 1 in the presence of :- )

THE BOROUGH CIOUNCIL herebji consents to the laying out of and the granting of the private way referred to in paragraph numbered 4 herein on the follow- ing conditions :-(Here set out the conditions, if any imposed by the local body.)

(The consent of the Council to be under seal and pursuant to a resolution of the Council.)

RULES OF WAR. “ What Acts of War are Justifiable ? ” *

By MAURICE HEALY, K.C.

So far as I am aware, the first suggestion in literature that some limitation ought to be placed upon the savagery of primitive warfare is to be found in the twenty-fifth chapter of Deuteronomy, verses 11 and 12. As early as Genesis it had been made clear that there were two ways of settling a difference, one by reason and the other by violence. As our history grew, it became evident that reason was the more popular method ; but the temporary success usually enjoyed by those who adopted the alternative caused sporadic outbreaks of violence, which disfigured each successive century from ancient days to our own. Even nations untouched by ruth recognized that violence in itself was at least an undesirable thing ; and, no doubt, when the organization of armies took place, these necessarily included many who were 10th t,o adopt methods of cruelty. Be sure that amongst the troops that pillaged cities there were always found a few who took pity on the helpless women and children, and did their best to assuage the horrors around t,hem. With such a leaven in the lump, there must always have been a tendency towards humanity ; and sooner or later there was bound to arise a demand that some sort of code of conduct should be devised

* “ What Acfs of War Are Justifiable ? ” By A. L. Goodhart ; being No. 42 of the Oxford Pamphlets on World Affairs. Clarondon Press.

for armies which would reduce to a minimum the horrors of necessity following in the trail of war.

Professor Goodhart dates this in the latter part of the Middle Ages, and attributes it to the spread of Christianity and the advent of chivalry ; he considers that the brutality of the Thirty Years War so affected public opinion that the wars of the eighteenth century were fought with an unusual regard for the principles of humanity ; and although the French Revolution produced an appalling outbreak of vicious and degraded cruelty amongst the civilians-carrier at Nantes, Fouche at Lyons, and Fouquier-Tinville at Paris, to say nothing of the Massacres of September- the soldiers preserved the honour of the a’rmy, and there is little evidence that the Republican or, later, the Imperial troops misbehaved themselves towards their enemies or towards civilians. Readers of the history of Wellington’s campaigns must be struck by the number of instances in which the respective com- manders, by means of flags of truce, made representa- tions to one another with the object of mitigating some distress or avoiding an unnecessary hardship. One sometimes thinks that a little of this considera- tion might have been shown to the unfortunate soldiers themselves, who, even during the desperate retreat to Corunna, found themselves doomed to receive 300 lashes for some trifling breach of discipline, and had to

NEW ZEALAND LAW JOURNAL June 17, 1941

march on with their backs bleeding, making the best shift they could with their packs. However, their officers had only just escaped from the same sort of treatment at t’heir public schools, so that sympathy had, perhaps, been numbed by familiarity with barbarity.

In the nineteenth century first appcard a deliberate attempt to create a code of international law. One State would enunciate certain principles, and would attempt to obtain the adherence of others. Each signatory was considered bound by the principles proclaimed. The Geneva Convention of .I864, which was t,he foundation of the Red Cross l’nternational Society, is perhaps the best established of these fragile bonds ; but other conventions dealt with such matters as the capture of private property at sea, blockade, t*he use of explosive bullets, and a number of other subjects. The last Czar of Russia was responsible for the first Fea,co Co~h~v~-e held at the Hague, in i X!W,

and gave his blessing to t’hc second, held in 1907. At the second were enunciat,ed a code of rules which, although not accepted by all States, are considered as having great juristic authority, on a,ccount of the imposing rharactcr of the representatives of the various nations who t,ook part in their drafting.

It is in vain for men to draw up a code of laws, unless they have the strong arm to enforce it. The burglar has probably never heard of the Larceny Act of 1916 (Gt. Brit.) ; but he knows all about police- men, and juries and prisons. You can hardly hope to prevent a disturbance by telling a troublesome fellow that it is a principle of our law Sic utere tuo ut alienum non lcce&s ; but if you say “ You shut up, or you’ll get a sock on the jaw,” he may have sufficient apprehension of your power to make good your threat, and may perhaps cease to be a nuisance. Now, all these beautiful conventions suffered from this defect : there was no strong man to enforce them ; there was no international army or mvy to put a wrongdoer in his place. And all the time Germany was at least having the shameless honesty to proclaim openly that, if she observed these at all, she would only observe them so long as it was to her advantage to do so. Professor Goodhart quotes the German official War Manual, which “ refers to the humane principles of the Hague Conventions as ‘ sentimentalism and flabby emotionalism ‘.” Clausewitz calls them “ self-imposed restrictions, almost imperceptible and hardly worth mentioning.” In the circumstances it is not illogical for the Manual to say that “ necessity in war overrules the ordinary rules of war,” well illustrated by the flagrant breach of Belgian neutrality in 1914. We find here the foundation of Hitler’s statement that he could conclude any pact and yet be ready to break it the next day in cold blood, if that was in the interests of bhe future Germany.

However, we judge men, not by some special code that they create for themselves, but by the sense of right and wrong that is implanted in the breast of every rational being. For example, it has for years been accepted by civilized peoples that war should be waged between the armed forces, and that civilians should suffer as little inconvenience as possible. In the South African War of 1899-1902 the British Government were bitterly attacked in the Press of other nations, and nowhere more bitterly than in

Germany, for their policy of removing Boer women and children to concentration camps, where un- fortunately, there were many casualties from sickness. The problem facing the British was that the Boers, fighting a guerilla warfare, were soldiers to-day and civilians to-morrow ; they returned home between battles, and, as they used no uniforms, it was impossible to tell who was which. The British authorities came to the conclusion, rightly or wrongly, that such Boers as did this were travelling outside the conventions protecting civilians, and must be put out of the way of continuing such a course. Ro their wives and children were removed to concentration camps, and their houses were burned. I thought it wrong then, and I think so now, although I am glad that I was not in command with the duty of solving such a problem. But at least efforts were made to make the lot of the internees as easy as was consistent with the operation ; a,nd none of them were expected to work in aid of their captors. Hut in the war of 1914 the Germans, who had so fiercely denounced this conduct, drove thousands of French and Belgian women and children into Germany and made them work there for the benefit of the German war machine. Their treatment of civilians, alas ! did not stop there, and hundreds were murdered under the plea that they were

franc-hews, oblivious of the fact that, their country having been suddenly and without warning invaded, they were entitled to a l&e-en-masse, and thus could not have been mere franc&curs.

It was the same thing with gas. it was Germany that first eagerly signed the agreement not to use gas ; and then cynically used it, in the hope of securing a victory by surprise. I wish we had not used it in return ; I never could think that the results obtained were at all compatible to the inconvenience involved in its use. However, that is for the soldiers to judge. The point is that Germany first bound us by a rule which we believed she bound herself by as well ; she hhen left us bound and cut herself free.

About aerial bombardment I cannot quite agree with Professor Goodhart. The Germans have made no secret since 1914 that they seek to win wars by destroying the moral of the civilian population. This they do by indiscriminate bombing. As we are all in the front line in this war, I do not see how we can com- plain of being bombed. But when the Germans go out of their way to defend their acts by saying that they are only attacking military objectives, then I despise their eagerness to tell an unnecessary and useless lie. We must, of course, remember that a good deal of what we read in somewhat different circum- stances is really addressed to the German people, who can see how our airmen behave, and probably fondly believe that their own are as gallant and as skilful. But once we accept the fact that the Germans are fighting according to a code we have always contemned, there is no need to pile Pelion on Ossa by dwelling upon the mischief that has resulted to us by the carry- ing out of that policy.

This little booklet is informative and has the supreme virtue of making the reader think. It is easily and pleasantly written, and can be read in half an hour. It corrects ignorant criticism, and informs the ill- instructed. It is a valtiable weapon in the arsenal of propaganda, in the better sense of that word.

June 17, 1941 NEW ZEALAND LAW JOURNAL 131 -____ --..__ .__

ON CIRCUIT. Lord Justice MaeKinnon Remembers.

The book* in which Lord Justice MacKinnon has given his experiences of circuit life contains also a large and varied collection of matters which have interested him in his judicial travels and which will equally interest his readers. For his circuit work has been judicial only, differing in this from the usual course of common law counsel who attain a seat on the Bench. Appointed in 1924 by Lord Haldane, then Lord Chancellor in the first Labour Government, he found himself suddenly faced with the prospect of undertaking a kind of work which had formed no part of his practice at the Bar. “ I had,” he says, “ never even joined a circuit. I started as a pupil of Lord Justice Scrutt.on. He had once joined the Eouth- Eastern, but he never went on it. (When he became a Judge, however, he was the best Judge in a criminal case of his time, perhaps of any time.) In his chambers there was no connection with any circuit. I had very little money “- in this the Lord Justice’s case was not unique-“ and to have joined a circuit as he had done would have wasted some of it. And as I hoped to get work chiefly in the Commercial Court I never joined one at all.”

The Lord Justice’s praise of Sir Thomas Scrutton is a natural tribute to their association while both were at the Bar ; nor would it be exaggerated, though not restricted to criminal work, for Scrutton was un- doubtedly a great Judge. Lord Wright also was a pupil of his, and seems to have been equally without experience of criminal work. Nor did the authors of the Judicature Acts, when, in order to fuse law and equity, they sent the Chancery Judges on circuit, guess that any preparatory training was required. But that experiment was not continued. The story went that one distinguished equity Judge, not con- versant with a colourful expression in common use in low life, gave it too literal an interpretation when heard from the witness-box. This was probably an invention, and The Life of Sir Edward Fry shows that that equally distinguished equity Judge wa,s thoroughly at home at the Assizes. And Lord Justice MacKinnon found that he was not left without help, when, in October, 1924, he left London for Carlisle upon the Northern Circuit. With the prospect of having to try prisoners at his first duty, he had, he says, two pieces of good fortune. “ My first marshal-first of a numerous and charming company-was John Maude, who already knew all t#hat I did not. And secondly, there was Sir Herbert Stephen, that most experienced and kindly Clerk of Assize. Their help, especially in the matter of sentences, was invaluable. For the rest I sat with my finger in the index of Archbold and hoped my uneasiness was not too apparent.”

The question of sentences has in recent times been a matter of difficulty with Judges ; to steer the middle way between harshness which may deter but certainly will not reform ; and leniency, which may reform but will not deter. In former times these nice distinctions were not known. The criminal law had punishments

*On Circuit, 1934-1937. By Sir Frank Douglas MacKinnon, Lord Justice of Appeal. Cambridge : At the University Press.

which seem to have been accepted with equanimity by persons who thought themselves civilized and humane, but now excite only horror. A specially tragic case is commemorated by a tombstone in Presteign Church- yard. Lord Justice MacKinnon gives a facsimile of the inscription on the headstone which is too long to quote, and of the short inscription at the foot. The latter includes : “ To the memory of Mary Morgan, who suffered April 18th, 1866. Aged 17 years.” She “ suffered “-that is, was hanged-for the killing of her child, and local tradition adds that the man who seduced her was upon the Grand Jury that found a true bill for murder against her. The junior of the circuit,, indeed, who defended her, rode to London to get a reprieve, and got it, but arrived back an hour too late. “ If these events,” comments the author, “had happened at Dorchester in 1805, might not Thomas Hardy have made a story out of them ‘1 ”

But if the Judges of a former day passed sentences like this-and as the law stood they had no option- they did not spare themselves in the carrying out of their duties. The feats of endurance of Judges, jurors and counsel in old days are almost incredible, and Lord Justice MacKinnon gives instances of the long sittings which were not uncommon ; and this was only a hundred years ago. Lord Campbell, when at the Bar in 1815, wrote of going into Court at Gloucester at eight in the morning and adjourning at half past two the next morning. “In the diary of Sir John Taylor Coleridge (first and best of the three Judges of his family) he records that in October, 1823, the jury acquitted a prisoner at Quarter Sessions, after being locked up, without food or fire, for seventeen hours. In August, 1830, a trial at Salisbury ended at 2.30 a.m. In March, 1845, he writes : ‘ My Exeter work was very heavy. Last Monday I sat twelve hours, and on Tuesday, nineteen, I went in at 8 a.m. and sat till 3 a.m., summing up with as much freshness, and perhaps more perspicuity, than I had done in any other case at the Assizes ‘.” The author comments : “ I cannot help wondering whether the jury displayed perspicuity at 3 a.m.” He gives other instances, and then caps them with the trial in Scotland of James Stewart as an accomplice in the Appin murder. The trial was at Inverarary in September, 1752. “ The Court sat uninterruptedly from 6 a.m. on Friday, September 22, until between 7 and 8 p.m. on Sunday, September 24 ; that is, for forty-nine or fifty hours.” Truly there were giants in those days. Lord Justice MacKinnon, in writing of Judges’ allowances for expenses, says (p. 37) that their salaries have not been increased for a century. Is it because they do not attempt to emulate these facts of endurance Z

Of one part of the work he had to do on circuit Lord Justice MacKinnon speaks with unfeigned disgust -the divorce work. “ Not only is it repulsive to have to sit and listen to repeated tales of adultery, but the actual work involved would be degrading to the meanest intellect.” This recalls the saying of the late Mr. Justice Hill, who had to judge both in Admiralty and Divorce, that he sat with one foot in the sea and the other foot in the sewer. “ The textbooka about

132 NEW ZEALAND LAW JOURNAL June 17, 1941 -_

divorce purport to set forth principles that are said to have been laid down-e.g., as to the exercise of judicial discretion in favour of a petitioner who confesses to have himself or herself committed adultery. I have never been able to discover that there really are any principles at all ; I believe you could find some authority for anything you thought fit to do.” And he concludes : “ I cannot conceive why these cases cannot be heard in the County Court, and by its Registrar. It would still be hard on that capable official ; for, in fact, they would not tax the powers of the stupidest man who was ever an acting-deputy- registrar of a County Court.”

These are only selections from a book which is full of description and comment on circuit, life and its incidents : the sheriffs, and the state many of them still maintain ; the interesting features of the places the Judges visit and the hospitality they receive ; circuit customs, past and present. Some years ago Sir Frank MacKinnon showed in The Murder in the Temple and Other Holiday Tasks how interesting he could be. The present book, written, it seems, to relieve the monotony

of “ black-out ” evenings, is no less interesting.

RECENT ENGLISH CASES. Noter-up Service

FOR

Halsbury’s 6C Laws of England ” AND

The English and Empire Digest.

COMPANIES.

Debentures-Floating Charge-Created within Six Months of Winding-up-Not for Benefit of Company-Validity-Com- panies Act, 1929 (c. 23), s. 266.

In order for a charge to be valid under s. 266 of the Companies “-4ct, 1929,-it must be paid to the company in substance as well as in fact, and be for the benefit of the company and not merely for the benefit of certain creditors.

1Ze DESTONE FABRICS, LTD., [I9411 1 All E.R. 545. CLD. As to floating charge within six months : see HALSBURY,

Hailsham edn., vol. 5, pp. 706, 707, pars. 1182-1184; and for cases : see DIGEST, VOI. 10, pp. 752, 753, Nos. 4699-4711.

EMERGENCY LEGISLATION. Emergency Legislation-Order for Specific Performance-

Failure of Purchaser to Obey Order-Application by Vendors to Forfeit Deposit-Courts (Emergency Powers) Act, 1939 (c. 67), 8. 1 (1).

Where a purchaser has f&led to complete, the vendor does not require lease under the Courts (Emergency Powers) Act, 1939, .for an order that the contract be rescinded and the deposiiforfeited.

JOHN BARKER & Co., LTL). 2). LITTMAN, 119411 2 All E.R. 15. Ch.D.

As to the Courts (Emergency Powers) Act, 1939, s. 1 (1) : see HALSBURY’S COMPLETd STATUTES OF ENGLAND, vol. 32, p. 947 ; and BUTTERWORTH’S EMERGENCY LEGISLATION, Statutes Volume, p. 206.

DIVORCE.

Adultery-Confession-By Wife-Expected Child Result of Adultery-No Proof of Non-Access.

A woman’s statement that her husband wa8 not the father of her expected child is ,?bol evidence tend& to bastardize the child unless there is evidence qf non-aceess by the husband, and such statement may be used as evidence of adultery.

%AMPrON2). FRARIP~ON AND BUSHELL, [1941]1 All E R 305. P.D.A.D.

As to confessions of adultery : see HALSBURT, Hailsham edn., vol. 10, pp. 660-662, par. 973 ; and for cases : see DIGEST, Vol. 27, pp. 300-303, Nos. 27662801.

HIGHWAYS.

Highways-Nuisance-Fall of Snow from Building-Act of God-Nuisance-Public Nuisance-Building Adjoining High- way-Fall of Snow from Roof-Act of God.

A large accumulation of snow on a roof overhanging a street is a nuisance, and ,if the occupier of the premises know.9 of it and takes no reasonable steps to remove it, he will be liable for damaae which it does if it falls.

SLATER"V. WORTHINGTC&"CASH STORES (1930), LTD., [I9411 1 All E.R. 245. K.B.D.

As to common law nuisances in respect of highways : see HALSBURY, Hailsham edn., vol. 16, pp. 354-363, pars. 48% 485 ; and for cases : seo DIGEST, vol. 26, p. 439. Nos. 1X9- 1563.

LANDLORD AND TENANT. Flats-Lift-Liability of Landlord for Proper Repair of

Lift-Liability to Visitor of Tenants of Flat. Negligence-Dmgerous Article-Liability of Repairer--Lift-

Limited Contract of Maintenance-Liability to User of Lift. A landlord of a block of flats who maintains o lift is bound

to use reasonable care to provide one which is reLtsonably safe ; and contractorrr who do not use reason&e care and sk>ll may be liable to stranders for resultant iajuTies.

HASELDINE a. C. A. Daw & Sax, LTD., ANI) OTI~EXS, [i94i] 1 All E.R. 525. K.B.D.

As to liability of landlord of flats : see HALYBCHY, Hailsham edn., vol. 20, pp. 337-339, pars. 405, 406 ; and for cases : see DIGEST, vol. 31, p. 102, Nos. 2394-2397.

LIBEL AND SLANDER. Damages - Assessment - Judge Sitting Wit)hout Jury -

Whether Bound to ilward Exemplary Damages. If a Judye in a libel action, sitting without a j.try, expresses

condemnation of the defendant in his judgmetst, he may on that account award a smaller sum a8 damages.

ROOK v. FAIRHIE, [1941] 1 All E.R. 297. C.A. As to punitive damages : see HALSBURY, Hailsham edn.,

vol. 10, pp. 87-90, par. 108 ; and for cases: see DIGEST, vol. 17, pp. 78-81, Nos. 1-17.

LIMITATION OF ACTIONS. Tenancy at Will or from Year to Year-Agreement to Let

Cottage and Shed-Tenant Quitting Cottage but Retaining Possession of Shed-No Rent Paid for seventeen years-Land- lord’s Right to Recover Possession of Shed Barred-Limitation Act, 1939 (c. 21), ss. 4 (3), 9 (2).

Where a cottage and a shed are held under a lease, and the tenant gives up possession of the cottage bnt is allowed to retain possession of the shed without paying rent and upon no specified terms, he is either a tenant at will or a tenant from year to year in respect of the shed.

MASON u. WARLOW, [I9411 1 All E.R. 475. C.A. As to tenancies at will and from year to year : see HALS-

BURY, Hailsham edn., vol. 20, pp. 702-708, pars. 925-934; and for cases : see DIGEST, vol. 32, pp. 451-454, Nos. 1183-1205.

WORKMEN’S COMPENSATION. Amount of Compensation - Partial Incapacity - Amount

Workman is Earning or is Able to Earn-Workman Voluntarily Joining the Army-Inclusion of Allowances and of Family Allowance Paid Direct to Wife-Workmen’s Compensation Act, 1925 (c. 84), 8. 9 (3).

For the purpose of calculating a workman’s earnings uncler 8. 9 (3) (1) of the Workmen’s Compensation Act, 1925, all his Army pay, including allowances paid to his wife, munt be taken into account.

D~NCASTER AMALGAMATED COLLIERIES, LTD. v. LEECH, [I9411 2 All E.R. 7. C.A.

As to average weekly earnings : see HALSBURY, Hailsham edn., vol. 34, pp. 914, 915, par. 1258; and for cases: see DIGEST, vol. 34, pp. 416-420, Nos. 3378-3411. See also WILLIS’S WORKMEN’S COMPENSATION, 33rd edn., pp. 298- 304.

RULES AND REGULATIONS. Orchard and Garden Diseases Act, 1928. Orchard and Garden

Diseases Act, Extension Order, 1941. No. 1941/83. Orchard and Garden Diseases Act, 1828. Fruit or Plants

Importation Amending Regulations, 1941. No. 1941/84.