LAW AND POLICE.

New Zealand Herald, Volume XVII, Issue 5758, 1 May 1880, Page 6

LAW AND POLICE.

dUPIIEMEf : CPUKT.— JUDGE'S Chambeks; • f. iJirtDAY, April '30.' . [Before Mr. JustfceKichmoni.] • The late Mr. Fairburn, of Svmondsstreet —Important Judgement.— It will be recollected that, a short time ago, on the 20th instant, an application was made to thi Judge, to Chambers, for a decision on a question of law, in regard to the will of the late Thomas Fairburn, of Symonds-street. He made a will, bequeathing h : s property to the widow for the term of her life," and and after her decease, it was to go to her daughter, Susan Jane Fairburn, -and her heirs and assigns for ever,' but should the 1 said Susan Jane Fairburn die without in-ale, t the property was to go to the next of kin. Susan Jane Fa rburn is now Mrs. Bennett, and has issue, and .VI re. Fairburn .is still alive. The question at issue was, whether Mrs. Bairburn. and her daughter and Mr. Bennett, could now give a good title. Mr. F. Whitaker, Attorney-General, appeared for the applicants, and Mr. Edwin fcLaketh for the District Land Heaistrar, who asked for a ruling on the point, on the ground that thjugh Mrs. Bennett was married, and had issue at present, they «night die, and still she might die without issue. The question was . argued at great length on both sides, and his Honour reserved judgment to consider the authorities quoted. .He now delirered the following important judgment in the case :—lt is clear that the provision of I .1 Vic., c. 26, sec. 29, applies to the terms of the gift over ; and this observation, in my opinion, disposes of the whole question. Under that enactment the words, "die without issue " in this Will must be construed to mean a failure of the issue of Susin

Jane Fairburn at the time of her death. Although this lady now has living children, a failure of her irsue at the timo of her death must obviously continue possible until her death—in other words, she may survive all her descencents. During her lifetime no absolute title in fee-simple can be derived through her.—lt was.argued on behalf of the applicants that the words "die without issue" were, equivalent to " die without leaving issue;" and &gain, a recent decision of Vice L hancellor Bacon, in the case of White v. Hight (Law reports, 12 ch., div. 751) ra-i cited to shew, that "die without leaving issue ".means " without ever having had issue." If that "case is to be taken as deciding, as a general proposition, that the two expressions are equivalent, I cau only say that it stands alone. Apart from the operation of 1 Vic., c. 26, .the phrase " die without i.sue " applied to real estate, is, no doubt, as argued, equivalent to the phrase "die without leaving issue.'' Bat' both phrase?, so applied, import a general failure or extinction of issue at any time, however remote. Neither expression is limited to the case of death without having had issue. This is as plain as any point in the construction of wills can possibly be. (See 2, Jaon. Wills, 473, 3rd ed., and the cases there cited.) I speak of ca?es where the context furnishes, as here, no ground for limiting tha construction. Treharne v. Layton, "Law Reports," 10, Q 8., 459, aDd the class of cases beginning with Maitland v. Chalie, 6 Mad., 243., to which Treharne v. Layton belongs, were relied upon by the applicants. But in all those cases there was a prior gift to tha chidren or other issue of tha person whose death was leferred to, under which gift some of the objects took vested interests in the lifetime of the parent; and the gift over on the death of the parent without leaving issue—or, as it was in most of the cases, without leaving children— was construed as intended to operate ' only in default of children or issue taking vested interests under the prior gift. Ac cordingly, " without leaving issue," or " children," was read as meaning'* without having had issue, or children, who take vested interests." . This referential mode of construction is here out of the question, as there is no antecedent gift to issue. The answer to the whole of the argument for the applicants is that the 27 th section of the statute puts" upon the words in question a ' construction different from that tor which they contend, and one which is, I may add, i in accordance with their natural sense.

Ik Banco. Application usder the . Settlers' Es tate Act.—Mr. A. E. Whitaker appeared to make an application.'"in the matter of the Leases and Sales of Settlers' Estate Act, and in the matter of a petition of JEllen Hunt, : wife of Henry Hunt." The petition was that a certain agreement, for sale of certain land to Charles Jfciiley should be carried into effect, and a deed of conveyance, executed by William Collins Bridle and William Bullen, trustees of the estate, or by such persons as the Court should direct. The land in question; is 'situated in Taranaki. Mr. Whitaker made the'application under the 11th section of the Act. The deed of settlement was set out in the petition, but there was no authority to salL ' Henry Hunt,,.by affidavit, set o.ut the reasons why he desired to sell this property waa that there were two properties several miles apart, and as he was unable to farm the two properties he desired to sell one, in order to get capital to work the other. An affidavit was also filed by the trustees consenting to the order.—His Honor said he thought the Court required more evidence. He could not give the order that morning, but as the parties were living in Taranaki, and he was going down there, the application might be renewed. He was quite clear that it would be going beyond any precedent to make'aa order without the evidence of | some skilled person as to how the parties would be affected. He directed that the necessary advertisement notices, as required by the 20th section of the Act, should be published in the Taranaki Herald and Taranaki News.

Watson v. Hedley and Wife.—This was an application to the Court to direct that a certain agreement to mortgage a certain property might be given effect to. Mr. Mackechnie appeared in support of the application. It appeared that Mrs, Hedley owned certain property in her own right which she had consented to mortgage to Mr. Watson in consideration o£ certain moneys. He now asked for the specific performance of this agreement, and that the Court should make a decree to that effect. Mr. Mackechnie said the parties had received due notice of the application to be made, and had, in fact, been in Court that morning, although they did not now appear. He asked the Court • to direct the registrar to inquire as to what was due to the plaintiff; also, inquire as to what Janet Hedley's separate property consisted of; and, further, to order that the property be sold.—His Honor asked whether there was any precedent for such an order ?—Mr. Mackechnie said they could not compel Mrs. Hedley to execute a deed .of mortgage, and the charge against the separate property could only be enforced by its sale. — His Honor said he would have to look carefully into the matter before ordering the sale of the property.—Mr. Mackechnie read a draft decree which he had prepared, which His Honor directed to be left for his consideration, stating that he would dispose of the application as soon as possible. Law Practitioners Act—Admission to Pkactice.—Mr 'Urowning said he had to apply, under :th"e provisions of the Law Practitioners Act, for the admission of Mr. John Channon Lee Bassett. He moved, " That Mr. Bassett be admitted a barrister of the Supreme Court of New Zealand." He was a barrister of the Inner Temple, London, and presented the necessary affidavits.—The order was made, and Mr. Baesett was sworn as a barrister of the Supreme Court of .New Zealand. He was also admitted, on Mr. Brci.r.ing' movements as a solicitor of the Supreme Court, and took the customary oaths. — Mr. James Russell asked that Mr. Frederick Earl might be admitted a solicitor of the Supreme Court under the provisions of Bub-section 4, section 14, of the law Practiturners Act, having served articles for five years, and passed the necessary examinations. The affidavits and papers were before His Honor, who carefully examined them, and said they all appeared correot, and he made the order accordingly. Mr. Earle took the necessary oath, and was admitted. Mr Russell then.,applied that Mr. Earl might be admitted a barrister of this Court. He was duly sworn, and admitted. Is Bankruptcy. j- ■ ' , Rk John Ace Chalk.—Mr. Laishley ap- . peared for the debtor,- who came up for his •final discharge. Mr.Laishley putin the neces-' sary documents, including the resolution of the. creditors, and. His,-Honor granted the discharge asked for., ' ,

• MEETINGS OF CREDITORS.* i j Re' Frost Brothers.—A meeting of creditors in' the estate of Frost 'Brothers; described as farmers; residing at Aiarimn, was held yesterday forenoon at the Supreme Court buildings. "Thi"' liabilities were set down at £152 12s 4d, and the assets, coneistlng of farm stock, &o. t at £48 7s. Mr,

Thomas Macffarlane>was appointed trustee in the eatate. Re James Ford.—A meeting of creditors in the estate of James Ford, who hail tiled a declaration of. insolvency, was held yesterday at the Supreme Court buildings. The debtor wa3 described as a tailor, residing in Auckland. The liabilities were set down at £"285 7h, and tha assets, consisting chiefly of book debts, at £50. Mr. Thomas Macflarlane was appointed trustee in the estate.

POLICE COURT.—Friday. I Before R. C..B*ratow, Esq., K.2J.] Drunkenness.—Six persons were charged with this offence, and punished in the ordinary way. Wanton - Assault. —Thomas Berry was charged with a yiolout assault upon l homaa Hoare, a petty officer of H.M S. Wolverene, under the following circumstances :—The complainant said he walking up Queenstreet, about 12 o'clock the previous night, when the prisoner came up to him, and ' struck him a violent blow with his clenched fiat iu the face. He had not spoken to the prisoner, nor interfered with him in any , way. Witness was almost stunned down by the blow, and his nose was cut. He had never seen the prisoner before, and could not give any reason for the attack. Witness swore positively that it was the prisoner who struck him. The prisoner said it was not he who assaulted tha complainant, but another man who was in the prisoner's company. He was also the worse for fiquor. A. person who was passing by at the time, aud saw the 'transaction, offered himself as a witness. He said the complainant was crossing the street at the time, and was near the footway, along which the prisoner, a Woman and anotherjnan were passing. The prisuner turned "round ana, without the' (■lightest provocation, struck the complaiuant with his clenched fi3t. Witness was positive the prisoner was the man. His Worship said, the prisoner had been guilty of a most wanton and unjustifiable assault. He wanted to assault some one, and he thought a sailor.was a suitable object of at:ack. The seutence was that the prisoner pay a tine of. £3, with 2s costs; or, in default, be imprisoned with hard labour for one month. Delirium Tremens. —Patrick Kane, suffering from this disorder, was remanded for a week.