LEGAL INQUIRIES

New Zealand Herald, Volume LXXIII, Issue 22400, 22 April 1936, Page 19

LEGAL INQUIRIES

MANY PROBLEMS SOLVED Legal inquiries are answered in this column every Wednesday. Every care will be taken to ensure that the legal guidance given is sound and accurate and as complete as possible on the facts supplied, but it is to be understood that no responsibility is undertaken for advice or information published in this column. Questions should be addressed to " Advocatus," care of the Editor, New Zealand Herald, Auckland, and must bear the inquirer's name and address as a guarantee of good faith. Initials or a pseudonym must also be given for purposes of reference in the column. .Bad Penny.— (1) If stock is lost by a drover through lack of proper care, ho is liable to make good the loss. (2) It depends upon whether the drover was your servant or not. If he is your servant, and carelessly mixes other people's stock with yours and it is sold, you would be liable for his wrongful neglect or action. You would, of course, have a right of indemnity from the drover. Lil.—Except under the provisions of tho Kural Mortgagors' Final Adjustment Act, there is no provision whereby the principal sum due under a mortgage can be reduced by any authority, and this applies to mortgages taken over by the Mortgage Corporation. It can, of course, bo done by agreement between mortgagor and mortgagee. Strained.—The articles of a company may lawfully, and usually do, provide that tho company has a lieu over the shares of a shareholder for any debt due by the shareholder to the company. 'Where, therefore, a company has realised on a security given by a shareholder, and the amount realised has been insufficient to satisfy the debt, it would have a lien for the balance. That the company realised when prices were low, and that realisation at present-day prices would have liquidated the debt does not affect the legal position. A.T.—The continuous barking of a dog may become a nuisance at common law, and this is so, whether it is at night cr in the daytime. The right of action, however, is dependent upon being able to prove damages capable of being estimated in money. It is also dependent upon many other factors, such as, for instance, whether it is a residential locality; what time the dog barks; whether it would disturb a normal person; and other circumstances which vary with ench individual case. If a right of action is established, the nuisance must be abated in an effective and appropriate manner. It would appear that in the circumstances you state you would have a right of action, but your best course is to go into the matter thoroughly with a solicitor. Takapuna.—(l) If the amount of interest you have paid is £'2 or over, you are entitled to a stamped receipt, and the mortgagee, if you demand it, must give you one. He is liable to a penalty up to £lO if lie makes default. (2) If you make payments in the future through a solicitor you must pay the solicitor's charges. The mortgagee is entitled to receive his interest free from any deduction. Sincere. —Tenancies depend upon agreement. If there is no agreement as to the duration of the tenancy, one calendar month's notice in writing is necessary to determine the tenancy. In the absence of special agreement, rent cannot be raised during the tenancy, and tho procedure is to determine the tenancy, when the tenant must either vacate the premises or pay the additional rent cloimed. Yorkshireman.—The advances you have made to your husband for the purposes of his business are either gifts or loans, and in neither case would they form part of your husband's income. Kight-of-way.—lt is true that you would have to take a Supreme Court action to have the notice removed, and even then you might not be successful unless it materially impeded the right-of-way, but your remedy is much more simple than that —put up a notice yourself directing people to your own house, and thus dispel the illusion that the right-of-way belongs solely to your neighbour. Grateful.—'Under the Old Age Pension Reciprocity Act residence in New Zealand by an applicant for a Commonwealth (Australian) pension Bhall be taken as equival- ! ent to residence in the Commonwealth. ! Similarly residence in the Commonwealth i will be deemed equivalent to residence in the Dominion for an applicant applying for the New Zealand pension. In short, your New Zealand residence will count for your Australian pension provided you live 12 months in Australia before you apply for the pension. 9-13.—Tho making of u will is a matter for an expert. Home-made wills are a constant source of litigation, are frequently invalid through informalities, and not seldom fail to achieve their purpose. .Even for a temporary will, the advice of a solicitor should be sought. Puzzled.—Since your income is under £52 per annum you should have put the letter "X" in the column opposite the inquiry relative to income in the census paper. X.Y.Z.—If you are a party to the mortgage the transfer of your interest in the farm to you;- husband will not free you from liability, and tho mortgagee could claim from you any deficit, and if judgment was obtained, could issue execution against the assets of your business. Worried.—Unless you have both agreed to separate, it would be doubtful whether you could obtain a divorce upon the expiration of three years, and you certainly could not get one earlier. You are, of course, entitled to re-marry if he divorces you. A.J.—Females over the age of CO years and males over the age of 65 years are exempt from the emergency unei/ployment charge on income other than salary or wages if their income from all sources is under £lO-1 per annum. Application has to be made to obtain exemption, forms being obtainable from the post office. If A's income is not derived from salary or wages he can apply for exemption. If, however, his income is derived from salary or wages he will bo Hable for the tax. If part of his income is derived from salary or wages, and the other part from othor sources, he would be entitled to apply for exomption in respect to the portion obtained from other sources.

Pent.—Your notice is out of order. It is given under Section 16 of the Property Law Act which provides that if there is no agreement between the parties as to the duration of a tenancy, one month's notice is required. In a deed or other writing "month" means a "lunar month"—in a statute a "calendar month." Therefore, in the notice you should specify "calendar month" otherwise "the expiration of one month" means the expirotion of one lunar month. If you accept rent after the expiration of the notice you waive the notice, unless you accept the rent without prejudice to the notice and the tenant accepts a receipt in that form. A summons "to a tenant or other person holding over" is based tin the validity of ft notice, and if you waive the notice you cannot succeed on the summons. Possession can bo sued for without notice if tho rent is in arrear, but the action ceases upon payment of the arrears. This does not apply where proper notice has been given. Home Builder.—You have \io redress. Tenders were called on certain specifications, and the lowest tenderer tendered on those. You could have accepted the tender, and al contract would have been formed, and if 4 not proceeded with tho deposit could have been forfeited. There was a subsequent material alteration in the specifications upon which you and the tenderer did not agree. That you lust time and the second lowest tender is unfortunate, but you cannot recover anything from the lowest tenderer or retain anything out of his deposit.

Enquirer.—Under section 6G of the Pen. sions Act a charitable institution, such us a public hospital, is entitled to the pension of nn old-age pensioner during the period that it maintains the pensioner. As soon as the old-age pensioner ceases to be maintained by such institution ho again draws the pension. If tho amount of the pension is more than tho reasonable cost of such maintenance during the period that the pensioner is maintained, tho surplus is handed 1o tho pensioner. Generally speaking, of course, tho reasonable cost of maintenance exceeds the amount of the pension, but the institution has no claim on the future pension for any such excels. As a matter of practice tho hospital authorities, where iv pensioner is entirely dependent on the pension, very frequently make substantial concessions. Old Timer.—See answer to Enquirer. L. Oto.—The advertisement describing tho fruit for sale, the order together vith remittance and the delivery of fruit constitute a contract or sale by description. That tho fruit did not comply with the description entitles you to either repudiate tlie contract and demand your money back or to claim damages Damages would be the difference in value between the fruit sent and tho fruit ordered. By accepting delivery of some of the fruit yon have not repudiated tho contract, but you are entitled to tn allowance equal to tho cost of the fruit you returned and the difference in value of the fruit you retained.