LEGAL INQUIRIES

New Zealand Herald, Volume LXXIII, Issue 22435, 3 June 1936, Page 19

LEGAL INQUIRIES

QUESTIONS ANSWERED 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 bo addressed to "Advocatus," care of the Editor, New Zealand Hebald, Auckland, and must bear the inquirer's name and address as a guarantee of good faith. Initials or a pseudonym must also bo given for purposes of reference in the column. Conscientious.—A husband in general is bound to maintain his wife and children If lie leaves a will he must make adequate provision for them in that will according to his moral obligation. Apart from the above, and provided he is solvent. he can give his property to whom ho likes, either in his lifetime or by will. A voluntary conveyance or transfer, that is to say, made without consideration in money value, if in fraud or creditors may be set aside. Engineer.—A trade union is bound to make provision in. its rules for an annual or periodic audit of accounts by some fit and proper person or peruons. This does not mean that it is compulsory to employ an outside chartered accountant. Hurry-Up.—ln the absence of agreement with you or a special drainage easement, your neighbour lias no right to come on to your property and dig out your drain, and this is all the more so if the drain does not drain his property. As far as he is concerned you can fill in the drain, and he can take no action. You could probably take action against him for trespass, but it would not be worth your while unless you could prove damages or wish to establish some right. Puzzled.—ln the form of application for the old age pension your wife must set out properties sold or transferred by herself or by you. her husband, since Na< vember 1. 1898. with particular uttention to more recent transactions. Cautious.—(l) The employer's liability under the Workers' Compensation Act is. dependent upon the relationship of master and servant existing. The general teat is tho degree of control exercised by th«> master. The relation can exist even, though the work is being paid for us piece work. The Act applies to the employment of a worker:—(a) For the purpose of any trade or business carried on by the employer, (b) Occupations, set out in the First Schedule to the Act, whether carried on for the purpose of the employer's trade or business or not. Quarrying is one of tho occupations set out in the said schedule, and it is there" fore immaterial whether the employer carries on the business or trade of quarrying or not. (2) In New Zealand a casual worker is covered. There is no time that they must work before the employer becomes liable provided the above set out provisions are otherwise applicable. Bovine.—The finder of a stray heifer on his property acauiren no . property as against the owner in the animal, and cannot sell it except at. his own risk. Ho has a right to the animal as against anyone but the true owner. As to who the truo owner is. is a question of proof. Neither the farmer finding the heifer nor the farmer who lost .it is under any obligation to advertise it, but as a matter of practicol commonsense this should be done. The finder can impound the animal, although apparently he is under n9 obligation to do so. If he impounds it certain procedure has to be followed. If the owner is known he must give him notice within 16 hours, and can, in such case, impound the cattle on his own land. .If the owner is unknown he must eiviß notice to the poundkeeper at tho nearest accessible pound and drive the animal to such pound. J.G.E.—lndians, except whore they are subjects of native States, are definitely British subjects, but a doubt remains with regard to subjects of native States. In any case even if they were not British subjects they would be alien friends, and as such entitled to hold property in New Zealand as if they were natural born British subjects. There is nothing to preclude an Indian from liring in and earning his own living in New Zealand. 9 Bonto.—An employer i* entitled to claim against a servant damages from brealtages caused through carelessness on such servant's part. He can set off the amount of such damages from wages owing. An old-age pensioner maj:"*own property up to £SO. excluding hi» own residence, and may earn up to £52 per annum without his pension being affected. No deduction ie made in respect of his residence. W.H.—ln making your statement of income for unemployment tax purposes you can apportion and deduct a reasonable proportion of the rent of your home for such part of the premises as are used in the dairy business and the garaging of your motor-truck. You would also be entitled to deduct depreciation on the truck, bad debts and insurances on any part used in the production of the income. Worried.—At present there is no award in existence governing the hours of a youth working at orchard work daily or the wages payable to him. No definite provisions have been finalised as yet undeir the present legislation being dealt with by Parliament in so far as orchard work is concerned.

B.M.—You have entered into a valid and enforceable contract with the correspondence echool, and they are entitled to demand and enforce payment of the instalments, unless you can show a misrepresentation which induced you to enter into the contract. If on completion of the course you could show that you were horta fide and reasonably dissati«ified with the course, you could under the "satin, faction or refund of fee guarantee'' claim

your money back. Scotty.—lf your net income calculated in accordance with the provisions of the Land and Income Tax Act does not reach £2OO you aro under no obligation to make

a return. L.M.M.—The right of contribution provided by the Fencing Act applies to any Maori land except land:—(n) Owned by Maoris under Crown grant or under any title that haß been determined by the Native Land Court or otherwise, (b) Vested m the Public Trustee under the West Coaist Settlement Reserve Act,_ 1892, or otherwise in trust for Maoris, (c) Held by Maoris under their customs and usages or reserved for their use, title to which has not been determined, but which is leased for the benefit of those concerned. The only way in which you can ascertain whether the native land comes under the above or not is to have a proper search made of the title by a solicitor. Butter-fat.—lt seems clear that a customer has a general right to secrecy on tho part of a bank. This appears to be subject to certain exceptions which may be classified under four heads:—(a) Where disclosure is under compulsion of law. (b) Where there is a duty to the public to disclose, (c) Where the interests of the bank require disclosure, (d) Where disclosure in by the expressed or implied consent of the customer. The .above exceptions aro construed with reasonable

strictness. Divorce.—ln law the father is the guardian of children, and is entitled to their custody as against tho wife in the event ,of divorce unless the Court on application orders otherwise. If. however, a husband wishes his wife to have the custody of children, he can. of course, allow her this, and if necessary consent to an order by ihe Court. A Court order is not necessary from the husband's point of view, and he can at any time in this absence of such order reauire the custody of the children If an order had been made ho would have to apply to the Court on good grounds for custody. In the absence of special circumstances he, would not be required to maintain his wife i!( she had been guilty of misconduct, but he would bo required to maintain the children. The amount of maintenance payable in respect of each child varies according no the father's position. Fifteen shillings n week may be mentioned as ft general figure for people in not moderately affluent circumstances. E.B.—Assuming that the father died intestate leaving no widow his property will be divided among his children. If one of them subsequently dies the share in the father's estate will form part of such deceased child's estate. In the case you mention, since the child is unmarried, such share would be divided among the surviving brothers and sisters. Since the amount is small, and there will be payable neither death duty nor succession duty, and those entitled to the share can be definitely ascertained, the trustees of the father's estate can, if they wish, pny the amount of such deceased child's share direct to the brothers and sisters without applying for administration. They would require the consent of and a release by all the beneficiaries.

New Chum.—There are no formalities necessary for n contract for work to be, done on a farm unlesß it is to extend for <i period over a year. It is, of course, advisable to have it in writing to prevent possible disputes, but it does not need to be witnessed. If it is reduced to writin« it Bhould be stamped with a Is Ikl stamp. It is not invalid if not stamped, but renders the parties liable to a_ tine, and also cannot be produced in evidence in any Court until properly stamped. It should be utamped within one month of execution otherwise heavy penalties may be incurred. It is advisable that both copies be stamped so that each party will have a complete agreement. This is one of the classes of agreements that can be stamped by the parties themselves, without presentation to the Stamp Office.

H.M.B.—You cannot assume by rea«on of the years of separation from your wifo that you are legally free. You must obtain a divorce. You could probably apply to petition in forma pauperis. If leave was given to you the cost of the divorce would be about £5, Your financial position would have to be put before the Court, and you woulld also have to obtain independent counsel's opinion that you had good grounds. You should consult a solicitor, whose duty it is to advise you. Farmer.—A reasonable allowance is allowed for depreciation on a motor-car_ belonging to a farmer if such motor-car is need in the production of the income. An allowance can be claimed for running expenses of the car in so far as such running expenses relate to the production of the mcome. Ratepayer.—lf the clerk of a county council prepares a list of ratepayers whose rates are outstanding for six months or more and forwards the same to the returning officer, such ratepayer ceases to be ari elector witbiin that county and ioses his rights as nuch, but he does not thereby cease to be _ a ratepayer. No person but an elector is entitled to sit on the council. Council meetings are open to the public, but that would not. give members of the public the right to interrupt the meeting by asking, questions. In fact, the council may upon motion made exclude stranners. M.S.—The relations between an r>gent collecting rent and his principal are matters entirely of agreement, both as to . the amount of commission and as to the times of payment and rendering statements. If you are not satisfied with what the agent is doing, you can either terminate the agreement or give him the option of meeting your requiiamente, K.K.—You are under no legal compulsion to leave any part o£ your estate to your children in your will, but if there is a moral obligation on you to make adequate provision for apy or all of them they might upset your vrill by- making application under the Family Protection Act. Wager.—Although a man may not have seen or heard from his wife for 26 year®, he i» not entitled by reason of that fact alone to marry. Before he can enter into a valid marriage his wife must be either dead or he must obtain a divorce. It would, however, be a good defence to a charge of bigamy if he has been continually absent from his wife for seven years last past, and is not proved to have known that his wife was alive during that time. Milker.—The interpretation of the ■haremilking agreement with regard to the difference between "'bonuses" and shareholders' bonusca" would depend upon the articles of association of tho dairy cowpany which was receiving the supply. Enquiry.—The mere fiict that yon have been living apart from your wjfe does not entitle you to a divorce, although three years or more has elapsed, unless you are living apart bv reason of an agreement or Magistrate's Court order, or your wife has deserted you or you are separated by mutual consent. You cannot obtain a divorce without publicity. If the divorce is undefended, the cost would be approximately £3O if there were no unusual features. Unknown.— Theoretically, when the new scale of sustenance comes into force, a single man would be allowed to earn, or would receive by way of sustenance, a sum sufficient to hiring his income up to £2 a week, provided the difference between his income and £2 a week did not exceed the scale rate of sustenance applicable to his class, that is to say did not exceed 14s a week, th© present t rate; or 17s a week, this new rate. It is < expected that the new rate will come into force on June 1. Anxiously Waiting.—Theoretically a father has the custody and control of his children until they are ,21 years of age, but where a girl, who is some . months over 19, has a respectable situation to go to, and there is no definite, reason why she should not go to it. it is diflscult to see how a father could justify .interfering with her goine except in special circumstances. If he interfered harshly and unreasonably appropriate application could be made to the Court to have the matter taken out of hie hands, Puzzled.—(l) When making up your income tax return you should show in Part C the full amount you are entitled to ceive by way of salary. If you look at the return of income form you -will see Part D which is devoted to claims for special exemptions. In this part you | should specify the unemployment relief tax you have paid, and the Income Tax department will take into consideration the amount of unemployment tax you have paid, allowing it as a special deduction. (2) You can claim an allowance for depreciation on the house yoa own and let. The Income Tax Department allows a deduction of 3 per cent for depreciation on wooden nouses; 2 per cent on houses with brick or concrete walls. The percentage is worked on the original cost of the house.. In the return of income form there is a special space allotted to claim for allowance in respect of depreciation of premises. In Part Lt covering rents you can claim the requisite amount for depreciation as expenditure, inserting the claim under the heading "Depreciation." H.C.—Since your agreement for sale end purchase was not in existence on April 17, 1931, you apply for under any of the Relief Acts, and .the vendor may exercise his remedies. You have no redress unless you can prove misrepresentation inducing you to purchase the farm. Even if you can prove such misrepresentation, it would appear that you have waited too long to avail yourself of it. D.A.G.—You have become disqualified for the pension by reason of the amount of money that your wife has received. Where only one person is entitled to the pension the property of both husband and wife is added, together, £SO ie deducted, the balance is divided and the result represents the accumulated property of the pensioner. £1 for every £lO is.then deducted from the pension, that u. to say. as far as your wife's property is concerned it would affect you to the extent of a deduction of £37 10s. The pension is £45 10s. You must, therefore, have some property of your own which has been taken into consideration, or you would be entitled to a. pension of £B. Your great age, length of residence and service to the country are not matters which the Registrar can take into consideration in calculating your accumulated property. Sound.—Although projectionists work.under an award, there is no > reference in the award to any examination, and there is apparently no examination which a projectionist has to pass to qualify for a position as an operator, whether m the country or in the town. The matter of obtaining such a position in a city, t suburban or full-time country theatre is one largely dependent upon the personal ability of the applicant at his .job. If you have had a thorough training, as would appear from your letter, you would probably be an acceptable applicant for a city or suburban position. Tired Waiting.—Tho right of trustees or executors to postpone sale or realisation of trust property depends upon the terms of the will. Generally there is power given them at their discretion to postpone sale for such time as they think fit. If this is so, unless the beneficiaries can prpve that the executors or _ trustees are improperly exercising this discretion, the Court will not interfere. Homsey.—lf the man refuses without legal justification to cany out hie promise of marriage, he cannot demand the return of the engagement ring. A man who has become enaged to a lady, and who is afterwards rejected by her can recover presents of any considerable value which he has made to her in contemplation of marriage, but cannot recover any that he may have given in order to introduce himself to her acquaintance and gain her favour. Failing recovery of the article which forms the present he can recover its value. Presentu would, of course, include an enasfement ring. If the engagement is dissolved by mutual consent the ring and like gifts must be returned by each party. Where the gifts take the shape of large articles. Hike furniture, the cost of delivering them would have to be borne by the person who required them back. Query.—ln compiling your income tax and unemployment tax return in eo far as the house you let is concerned you can claim the following deductions: —Rates, interest Eaid by you on any mortgage on the ouse. insurance premium in respect of insurance on the house, repairs and maintenance (not to include additions or improvements), any expenses of collection of rent and depreciation, which will, in your case, be at the rate of 3 per cent on the original cost of the house. If you occupy the house on the farm yourself you con claim an allowance for depreciation. If the house is wooden the allowance would be 3 per cent on one quarter of the original cost of th® house: if the house has brick or concrete walls—2 per cent on one quarter of the original cost of the house. The Tax Department base this allowance on th© idea that about one quarter of the house is usually used in the production of the income of the farm. If. however, the farm is let and the house is occupied by a tenant, or if the house is occupied by a manager, you can claim for depreciation on the full original cost of the houoe. Subscriber.—Noise materially interfering with the comfort of neighbours may, in certain circumstuncee, amount to an actionable nuisance for which damages and other remedies may be claimed. It depends upon the nature of the noise, the locality, the time when the noise occurs and other factors of that nature. Frequent noisy pß,rtie» up to_ 3 ft.ro. 'n » quiet and closely settled residential area might well amount to a nuisance. Actual pecuniary damage is necessary before a cause of action arises, The lo l * B 9 '°oß erß would be such damage. The frequency of such parties would also be a factor. There was a case where the noise from a cabaret lasting into the email. hourß of the morning was held to be a nuisance. It is impossible to advise you more *uUy than this, and if you wish to carry th* matter further yon ehould consult a solicitor.