Law Intelligence.

New Zealand Mail, Issue 253, 2 December 1876, Page 18

Law Intelligence.

COURT OF APPEAL. Friday, November 24. (Befoi-e their Honors Mr. Justice Johnston (presiding), Mi*. Justice Gillies, and Mr. Justice Williams.) The Court of Appeal sat as above at 11 o’clock. WEBB V. NATIONAL BANK OF NEW ZEALAND (limited). His Honor Mr. Justice Johnston delivered jxxdgment on the preliminary objection raised by Mr. Macassey in this case on the day previous. Their Honors were xxnanimously of opinion that if the case stood solely on the affidavits of the solicitoi-s which had been filed, they would have sustained the objection. They had come to the conclusion, however, that they would assume that the granting of the rule nisi was on the presumption that the first step had been taken previously to the adjournment. The leai-ned Judge below had evidently only adjoui-ned the case to enable the Coxxrt to deal with the matter more carefully. They rnxxst take it that the motion had been initiated, and that an extension of time was only granted, that the propriety of acceding to the xxiotion might be properly discussed. Mr. Macassey then proceeded with his alignment on behalf of the appellant, and referred to the rule absolute under which the findings of the jury were set aside, and a trial de novo granted on the ground that the 2nd, 3i'd, and 4th counts of the declai-ation disclosed no cause of action, and the damage having been assessed generally, the Court could not give judgment on the findings ; and also, that a new trial should be had between the parties on the gx-ounds that the vei-dict was against the weight of evidence, and the damages awarded were excessive ; and further 1 , that each party should bear his own costs of the trial, and that the rule be without costs to either party. He then quoted from the judgment of his Honor Mr. Justice Williams, from which it appeared that the form of the rule was wrong, and that his Honor was of opinion that if the respondents had failed oil the first branch, there was a doubt whether they could have succeeded on the second, however sti-ong a case they liad, as by moving fix-st in arrest of judgment, it was admitted that the verdict was good. In Rose v . Groves, 5 M. and G., 615, a rule had been asked for in the same foi-m as tlie present, and it was held by the Court that the question as to the new trial must be taken first, as no motion for a new trial could be made after a motion in arrest of judgment. Mi\ Macassey then pi-oceeded to ai-gue that if the leax-ned Judge was coi'i-ect, tlien the rule was bad ou account of its form. In the case of Bell v. Menzies, 29 L.J. 361, tlie question of several alternatives in a x-ule had ai-isen on the rule nisi, and on application for the rule to be made absolute the Court had suspended the arguments on the alternative until a decision had been arrived at on the one point. In the present case undoubtedly the i-e"spondents wei-e not entitled both to a new trial and an ax-rest of judgment. His Honor Mr. Justice Williams asked— Supposing tlie rule nisi had been moved properly, wliat would have been the effect of the rule absolute ?

Mr. Macassey then i-eferred to the case of Besvvick v. the Mayor of Kaiapoi, in which it was laid down that the rule absolute should be read by tlie light of the rule nisi. In the present case the Court below had declared in the same breath that there should be a new trial on all tlie issues submitted to tlie jury, and that some of those issues should never have been submitted at all. The fii-st count in the declai-ation set out a post nuptial settlement by Mr. and Mrs. Hunter of certain pro-pei-ties real and personal to trustees subject to mortgages to the bank ; that the trustees had not acted, and that the appellant was a fit person to act, and was willing to act in the

trusts ; and the appointment of the appellant as such trustee by the Supreme Court under the Trustee Acts on the 30rh April, 1875, by virtue of which tlie x-ight to bring any action tor the recovery of any real and personal property and damages for any wrong or injury done to the same were vested in the appellant, subject to the trusts of the said settlement ; and the seizure and removal of the property settled by tlie bank, and consequent loss to the appellant as such trustee. The second count repeated the allegations in the first, and further alleged trover of the property settled. In the third count the mortgage, or bill of sale to the bank, was set out, which was executed previous to the marriage, and the allegations in the first count were repeated. It was also alleged that before default, and without notice, the respondent seized the property, as also other property not included in the bill of sale, removing and selling the same, to the consequent loss and damage of the appellant. The fourth count was that the appellant had offex-ed, and the respondents’ managers had accepted such offer to pay the moneys due on the said mortgage, but that the respondents did not allow him a reasonable time before so entering upon and selling tlie said property aforesaid, to the loss of the appellant as such trustee as aforesaid. The respondents duly pleaded to the declaration in justification, but the pleas were as bad as the first count in the declaration—which did not allege that the property seized was the property of appellant —because there was no allegation identifying the acts justified with the acts complained of. An objection had beeu taken to the issues submitted to the jury which, with the findings thereon, were as follows :—(1). At the time of tlie entry and of the taking possession, removal, and sale by the respondents mentioned in the declaration and pleas, liad tlxe power to entei-, take possession, remove, and sell contained in the bill of sale ixx the declai-ation set out, become lawfully exercisable by the respondentt under tlie terms of tlxe said bill of sale ? (2). Did the respondents, for considerations in the declaration mentioned, pi-omise the appellant to forbear from exercising tlxe power of sale, and other powei-s, licenses, and authorities conferred upon them by virtue of tlxe said deed or bill of sale, by way of mortgage ? 13). Did the respondents wholly neglect and refuse to pei-form the said promise 1 (4). Did the respondents wrongfully take possession of, remove, and sell goods of the appellant, otheLthan those subject to the power of sale in the said bill of sale contained ? (5). What damage (if any) is the appellant entitled to recover from the respoixdents in respect of. the grievances complained of in tlxe declaration ? The cause was ti-ied on the 1/th, 18th. and 19th January, 1876, before liis Honox- Mi". Justice Williams and a special jury at tlie sittings of the Supreme Court at Dunedin, and the jury answei-ed the fii’st issue in the negative, and all the others in the affirmative, and assessed the damages at £3OOO. The position of the appellant was similar to that of a trustee or assignee in bankruptcy, and a question would afterwards arise as to the effect of the Trustee Acts, when he should submit that it was the same in this respect as the bankruptcy law. He would next deal with the bill of sale itself. In the case of Ulward v. Grosvenor Company, L. Rep. 3 Q.B. 123, tlxe agreement had been for payment by instalments, with a proviso that in case of default the whole should become due. There had been a verbal agx-eement between the parties as to the time of payment, and in violation of this the defendants seized and sold. .In the action it was contended that the plaintiff was estopped by the deed fi-om giving evidence of tlie pa-ol agreement, but the Court had admitted the evidence, and ultimately the defendaiF 5 had been mulcted in damages. In tlx '. a case a great part of the argument turned on the construction of the word “fault.” At the time of the execution of the settlement Mrs. Hxxnter was entitled to what in England would be tei-med an equity of redemption in the freehold, although in New Zealand this estate might be more properly termed a possession of a freehold estate, liable to be defeated on default in certain conditions. The dicta of Judges Richmond axxd Chapman suppoi-ted this view. Her holding of the leaseholds was free from incumbrances and her ownei-ship in the chattels was subject to the bank mortgage, and in them tlie trustees would merely acquix-e a chose in action. Until default was made she was absolutely entitled, and in the case of a sale to a bona fide purchaser, it would have been a question whether the bank could have followed the property. The case of Bx-adley v. Copley, 1 Com. 8., 685. illustx-ated the principle that the pi-operty in goods i-e----mained in the mortgagor until default. Tliei*e was no magic or charm in the provision foxquiet enjoyment, for a Court of Equity would always i-estrain in these cases. The only use of such a pi-ovision was as the foundation of an action on covenant. Mrs. Hunter until default should have been treated as having the legal ownership, and at all events, the right to possession was most jxxstly hex-s, and the bank should not have interfered xxnless upon notice. Mr. Travers explained that tlxe respoixdents sought to justify on an express reservation in the deed, and the question of demand or default after demand did not arise. He was pi-e----pared to concede that at the time of the settlement, Mrs. Hunter was entitled to the possession of the pi-operty, subject to the mortgage, and that such interest would pass to the trustees.

Mr. Macassey theu said that in Rose v. Watson, 10 H. of Lds. 672, and Marshall v. Holroyd, 10 H. of Lds. 191, it was laid down as a principle that whether real or personal property was concerned in these cases they were governed by tlxe same law. He would next draw attention to the fact that under the Conveyancing Ox-dinance the legal estate i-e-------mained in tlie mortgagor until default. The right of possession remained in tlxe mortgagor, and where the right to seize was extended to after acquired property, undoubtedly to all i;itents and purposes the property remained inthe mortgagor until default. In continuing his argument he would assume as a hypothesis

that the seizure by the bank was a wrongful act. In proceeding with the consideration of the case it would be necessary to show that the right to recover damages was assignable under the Conveyancing Ordinance, and undoubtedly section 9 was very wide in its provisions, extending as it did to every contingent a future executory right in real or personal property. His Honor Mr. Justice Johnston had laid daw n in King v. Johnson, where it had been argued that the ordinance only applied to realty, that book debts were assignable. He would not contend that rights of action for personal damage, such as battery, &c., were assignable, but any interest which under the Bankruptcy law would pass to the trustee would also pass under the Ordinance. If the equity or right itself was assigned the right of action would pass with it, although he would not contend that a bare right of action could be conveyed by deed. Gillibrand v. Edwards would illustrate his meaning for the right to sue as distinguished from the thing, whether real or personal could not be passed in gross. Some of the cases decided in relation to Eriendly Societies might be of some little help in considering this question. In the Queensberry Industrial Society v. Pickles, L. Hep. 1 Excheq., p. 1, the argument turned on the construction of the word “ property,” and it was held that a bond which was clearly a mere chose in action would pass. Prosser v. Edmunds, 1 Young and C., 4SI, and Hill v. Boyd, Law Pep. 4 Excheq., p. 460, had been referred to in the Court below; and in the case Harris v. Macfarlane. 2 Ct. of Appeal Cases, p. 122, Prosser v. Edmiinds had been dealt with in deciding as to the assignment of equitable estates. Section 27 of the Trustee Act, 1850, dealt with vesting orders, and clearly covered Prosser’s case. If Mrs. Hunter had died her rights in the property would undoubtedly have passed to her executor, or if she had become bankrupt to her assignee or trustee. As showing that an assignee under a deed of arrangement would be in the same position as a trustee, he would cite, Exeley v. Inglis, 27 L. J. Excheq., 145; Porter v. Kirlcus, 36 L. J., C. P., 311; and Topping v. Keysall, 16 C. 8., N. S., 258. It was important to him to show that in so many cases a chose in action had been held to have passed as shewing the intention of the Legislature. The title of the Act showed that it was intended to apply to transfers of real and personal property, and in the interpretation clause the meaning of the term “mortgage” was extended to estates, interests, or property in lands or personal estate used as security, &c., which would clearly extend to the present case. Mr. Macassey then read the marginal notes as illustrating his views, and commented on the wide signification of the terms “ lands or personal estate.” If a testator made a devise in such terms there would be very litt.le left for the residuary legatees. The preamble referred to the Statute ' of Win. IV., as to escheats and forfeitures which dealt with real and personal estate in similar terms, which was a strong presumption in favor of his argument. He then referred to the following cases:—ln re Davis’s Trusts,. L. Pep., 12 Eq. 214 ; Smirthwaites Trust, L. Pep., 11 Eq., 257 ; Bignold’s case, L. Pep., 7 Chn. Apps. 223 ; re East, L. Pep., 8 Chn. 735 ; re Berkeley, L. Pep., 9 Chn. Apps. 720, drawing induction as to the principles he had laid down. He could not see from the premises why the Court should not have the power to vest in a new trustee such property as would by bankruptcy or death pass to the trustee or executor.

His Honor Mr. Justice Williams said that since the hearing in the Court below a case in re Woodfall, 42 L. L Probate, had been brought under his notice which he would commend to Mr. Macassey’s attention. Mr. Macassey then proceeded to the deed, and stated that broadly his contention was that Mrs. Hunter being in possession, was entitled to hold until a demand was made. No debt was payable under the deed until after demand, and there had been no default entitling the bank to sell and put an end to the possession, until after demand, and a reasonable time allowed for payment. The respondents might enter, but not proceed to a sale without a demand. He would ask the Court to look at the deed as a whole, so as to give it a rational interpretation, and not take any isolated passage. The principal features of the deed were a debt, an assignment of property as security for that debt a proviso for repayment on demand, a power of redemption on payment, a power to enter upon and hold the property after demand, or when the bank should consider it necessary for their interests, to take inventory, &c., and a power of sale immediately upon such entry with a proviso relieving purchasers from the necessity of enquiry as to propriety of the sale. The question arose whether the woi’ds “ immediately xxpon such entry” were to do away with and practically deprive the mortgagor of her right of redemption. His Honor Mr. Justice Gillies pointed oxxt that the power of sale extended to moneys not actually due. Mr. Macassey said that the reason for this was that if default should be made the whole money should become due at once, the mortgagor’ not being at liberty to say that the bank had no right to sell because a portion of the money was covered by outstanding bills. The Court would sui’ely not hold that “immediately ” meant “ instantaneously,” but within a reasonable time for this was the only way to give effect to the provisions of the deed. All through the deed provision was made for payment on demand, and it was on payment after demand that the security of the bank was at an end. Thoms v. Wilson, 10 Jurist, N.S., 201 ; Massey v. Sladen, L. Re}:). 4, Excheq., 13 ; Brighty v. Naughten, 3 Best and S., 305; and Rodgers v. Mutton, 31 L. J., Excheq., 275, all bore on the construction of sxxch words as “immediately,” “instantly,” &e.. He would submit that the real meaning was within a l’easonable time. If the judgment of the’ Court below was correct, all the first part of the power of sale should have been cut out as nugatory. It was not only unnecessary but i

deceiving, and it was only by reading all the provisions together that a reasonable construction could be put upon the deed. His Honor Mr. Justice Johnston said that if it was as Mi*. Macassey argued the idea of a mortgage was at an end, for there was virtually no right of i-edemption. Mr. Macassey then said that the bank had the right to chai’ge interest, <sce., and befoi’e the mortgagor coxxld pay she rnxxst have had some intimation fi’om the bank of the amount due aixd owing. A Court of Equity would not sanction anything as between mortgagor and mortgagee which would come in the w T ay of the mortgagor’s right to redeem. As 1 showing the efforts which, a Court of Equity would make to support the lights of a mortgagor 1 , he would cite “Fisher on Mortgages,” 278-80. In his opinion the deed had been drawn in such a peculiar form so as to avoid the order and disposition clauses of the bankruptcy law. The Court should so construe the deed as to give effect to the whole of its provisions. How could the mortgagor exercise the right of redemption without a demand ? He trusted the Court would look at the matter from an equitable point of view. As to the construction of repugnant clauses in deeds, he would refer the Court to Solly v. Forbes (2 B. and B. 38), Furnival v. Coombes (5 M. and G. 736), Fowkes v. Manchester Insurance Co. (8 L. T. N. S. 29), and a Victorian case, in which the Oriental Bank were the plaintiffs, reported in 2 Wyatt, Webb, and A’Becket. The Court then adjourned.

Monday, November 27. WEBB V. NATIONAL BANK OF NEW ZEALAND (LIMITED). The Court of Appeal sat at 11 o’clock, and proceeded to hear further ai’guments in the above case. Mr. Mhcassey continued, and said that he proposed to submit as a general proposition to the Court that the conflicting parts of the deed should be treated as nugatory. The Courts, both of Law and Equity, were strongly opposed to forfeitures. Another principle involved was the doctriue of notice. The mere entry and taking possession was in itself an ambiguous act, and as the power of sale need not thereafter have been necessarily exercised, the Bank was bound to give notice of its election to act under what he would tei’m the forfeiture claixse of the deed. The leading case on notice, Byse v. Wakefield, 6 M. and W. 442, would show that in cases such as the present no legal right would accrue until after notice. There was a further principle applicable to the case, viz.: that no man’s goods can be liable to a forfeiture until he has had reasonable opportunity of satisfying any demand which has been made upon him. As shewing that notice should have been given, and a demand made, he would cite Cooper v. Wandsworth Board of Works, 14 Com. 8., N.S. 180. He did not see what possible object was served by the omission of the demand, and the Coui’t ought not to assume that the parties intended that the deed should cease to be a mortgage or security. If the Bank could not sue until after demand a fortiori, they should not be allowed to work a forfeitui’e without notice. He would submit that the peculiar language of the power was to cover bills of exchange payable at a future date, and this was an additional reason why there should have been a demand. The learned Jxxdge below had expressed an opinion ’ that the deed by implication gave power to the bank to remove the goods. No doubt if the bank could not exercise the powers confei’red without a right to remove the goods such a light would undoubtedly be implied. The woi’ds “at such place or places ” as they might think fit, might give rise to an assumption that it was intended that there should be a light to remove to such place or places for purposes cf sale. His own contention was that the words were inserted because if it were not so, the mortgagor might turn round and say, you did not exercise £ proper and reasonable discretion in selling my goods, and their only effect was to give a mere right to select a place of sale. The mortgagor had a right up to the very last moment before the sale to receive back his security on payment. Supposing every stick of furniture had been carried off to Dunedin, and the mortgagor redeemed before sale, what a loss would be suffered in bringing the goods back. Under the circumstances it could not safely be implied that the power would bear any such construction. If there was no express or implied power of removal, the subsequent provision as to the bank not being responsible fer damage done in removal proceeded on a false assumption, and was consequently valueless. The Coui’t had held in the Bank of Australasia v. Reid that this principle extended to a statute even, and most undoubtedly the same rule would ajiply to a deed. In Broom’s Legal Maxims, pp. 463-73, the question was discussed at length. Supposing the mortgagees had this right of removal, there was nothing whatever to show that in the event of removal under the right the mortgagor on payment before the sale had a corresponding right to recover back the goods. Tancred v. Leyland, 16 Q. 8., 669 was a sheriff’s case of excessive distress, and settled the principles observed in dealing with these cases. Churchill v. Siggers, Macassey’s Reports, and Cornish v. Bank of N.S.W., also bore on the subject. He would submit that there was nothing in the provisions of the deed justifying the bank in selling regardless of the circumstances. He must differ entirely with the opinion of the learned Judge expressed in the Court below (p. 30 of the case) as to the discretion of the bank in exercising the powers. His Honor Mr. Justice Johnston asked, was not the present a very similar case to that of a promissory note, payable on demand ? His Honor Mr. J ustice Gillies pointed out the absence of a covenant for quiet enjoyment in the deed.

Mr. Macassey said that this was immaterial, inasmuch as a Court of Equity would always interfere in the absence of the covenant. The bill of sale evidently contemplated that the mortgagor would continue in possession and

use the property until some novus actus by the bank. He would refer the Court to page 7of the case on the subject, from which it clearly appeared that the document was a mortgage, and not an assignment. He thought the learned Judge’s view in the Court below erroneous as to the discretion of the bank, for there was nothing in the deed rendering the bank irresponsible for culpable negligence. It had been proposed to offer evidence on this subject in the Court below ; but an objection was taken and sustained, on the ground that there was no new assignment in the pleadings of the culpable negligence. It had been laid down by the Privy Council, that an amendment could be allowed on appeal, consequently the appellant was not too late even yet. In Cryech v. Genl. S.N. Co., 3 C.P., 14, it was laid down as a principle that granting that mortgagees were not liable for ordinary consequences, yet they were liable for negligence, and in the present case there was abundant evidence of negligence to go to the jui’y. The powers of the bank should be subject to some sort of control. In Lyttelton v. Blackburn, 33 L.T., N.S., 641, it was laid down that the Courts would not interfere where the parties had agreed upon a domestic forum, unless malice could be shown, and Willis v. Child, 13 Bevan, 117, illustrated the same view. If the bank manager could only assign a mere whim as a reason for taking action, the jury would find against him. He would refer the Court to his Honor Mr. Justice Williams’ dicta as to the bank in the judgment with which he could not agree, and would cite as bearing out his own opinion, Baker v. Jones, 2C. and K., 743. There was abundant evidence to sustain a verdict, and this question had been so frequently discussed of late that he did not propose to trouble the Court with any remarks on the matter. As to the amount of damage, he would refer to Mrs. Hunter’s evidence, p. 15 of the case. It would be seen that the value of the furniture, stock, Sr, c., was no less than £4500, and the evidence ot Webb showed that the average takings were over £IOO per week, the goodwill being worth about £IOOO. Then the value of Mrs. Hunter’s term of years in the house must be taken into consideration, and with all these facts, it could not be said that the damages were excessive.

His Honor Mr. Justice Williams pointed out that at the trial he had directed the jury not to take into consideration the moneys due to the Bank by Mrs. Hunter in assessing the damages. Mr. Macassey then proceeded, and said that this was a question of misdirection and could not be raised now. Brierley v. Kendall, 17 Q.B. 935, bore on <liis point, but the present case had distinguishing features from it. The fourth count of the declaration was apparently bad, and he was quite prepared to admit that there was no evidence to support it. The Court was not sitting in error, and it would be seen that the cause of action arose from the wrongful sale and the damages resulting therefrom. In Latham v. Macandrew, which came in error before the Court of Appeal, which was an action in which the plaintiff claimed £SOO and obtained a verdict for the full amount claimed, there were two counts in the declaration, one of which was bad, and the damages had been assessed generally. Consequently the verdict had been set aside. If the plaintiff had claimed £IOOO the Court might perhaps have assumed that the £SOO had been awarded on the good count. In Deer v. Ivy, and Forman v. Dyer, Court of Appeal cases, it was laid down that damages could not be recovered twice over for the same cause of action, but there were distinctions between the two cases. There were a number of cases mentioned in Archbold’s Practice, p.p. 448-9, in which it was laid down that where there were several counts in a declaration, the plaintiff might be called upon to make his election in order that the question of costs might be settled. It was quite within the province of the defendants in the Court below to have asked for the verdict of the jury to be taken oil each particular issue, but they did not do so. The case of Mutrie v. Harris, 1 M and M 322, laid down the principle on this matter, and rule 155 made provision so far as New Zealand practice is concerned for the jury assessing damages on the several counts. If the counts substantially re-echoed the same cause of action, no ground of complaint could exist. He would again call the attention of the Court to the form of the rule, and if it should find in favor of the appellant, he would ask that the rule nisi should be discharged. Mr. Mouat followed Mr. Macassey on the same side, arguing that it was literally impossible for the appellant to comply with the requirements of the rule, even if it was sustained by the Court. His Honor Mr. Justice Johnston explained that if the Court was of opinion that the rule was bad in form, it could be amended. There was no doubt that the Court could relieve the appellant of any embarrassment on this ground. Mi’. Mouat then proceeded to argue as to the effect of the vesting order, submitting that it contained sufficient not only to pass the estate to the appellant, but also for his appointment as a new trustee. lie then dealt with the construction to be put upon the bill of sale, illustrating liis remarks from the recitals and the nature of the property. He quoted a number of cases in support of his argument, but did not shed any light upon thematters at issuenot previously commented upon by Mr. Macassey. In conclusion, he submitted that whatever interpretation the Court should put upon the deed still the appellant would be entitled to succeed. The Court then adjourned.

Tuesday, November 2S. WEBB V. NATIONAL BANK OF NEW ZEALAND (limited). The Court of Appeal sat at 11 o’clock, and proceeded with the consideration of the above case. Mr. Travers commenced his argument on behalf of the respondents, and said that he would admit that the form of the rule was not

the usual one, the cart being before the horse, but thought it was quite open to the respondents to apply far the rule in the alternative. His Honor Mr. Justice Johnston said that the object in having a proper form for the rule was that the Court might not occupy itself with the consideration of a question which might not arise. Mr. Travers then proceeded, and said he would admit that, in the present ease, the form was at variance with the English practice. He proposed, in dealing with the case, to take the declaration first. The effect of the first count was trespass quarc clausum fregit accompanied by asportation of goods. There was no allegation of property in the goods, and the appellant could not recover on this ground alone. Pritchard v. Long, 9 M. and W. 366, bore out this contention most fully. It might be urged that the goods on the land were the goods mentioned in the settlement, but there was nothing to identify them as such, and there was no other averment. With the trespass to land the question of title arose. The property consisted of two parcels —(1) the freehold subject to the mortgage, and (2) the leasehold held for the residue of a term of 10 years. There was nothing to show at what time the money secured by the mortgage was to be repaid, and the rights of both mortgagor and mortgagee were not defined. In any case, all that passed under the settlement was the equity ot redemption. He would admit that the signature of one trustee to the deed was sufficient to set up the trust as being an acceptance in fact.

His Honor Mr. Justice Johnston pointed out that there had been no disclaimer by tlie other trustee, and asked what would be the effect.

Mr. Travers said that for the purposes of his present argument it was immaterial, and he would assume, although without admitting it, that the petitioner was appointed in substitution for the two original trustees. If this was the case, all that would vest in him so far as the freehold was concerned was the equity of redemption. As to the leaseholds, he would be merely assignee of the term, and both freehold and leasehold would be vested inhimassole trustee for the sole and separate use of a married woman. There was no averment that he ever entered upon the leasehold as such assignee. The action was for interference with the personal occupation of property, and could only be brought by the person in actual or constructive possession. There was no averment equivalent to an averment of possession. Had Mrs. Hunter, the person beneficially interested, died, and the trustees entered into possession,, they might have maintained the action, but trespass could not be maintained without possession. The assiguee of a term must, according’ to all the rules of pleading, aver possession in an action of trespass. In support of his argument he relied upon Harrison v. Blackburn, 34 L.J., C.P., 109. The same objections applied to the appellant as if the action had been brought by the original trustees, and they were in his place. Pule of Court No. 80 gave the appellant the opportunity of alleging possession in general terms. Possession on the part of the trustees would have been inconsistent with their fiduciary position. The action should have been by the beneficiary and not by the trustee, who was in a sort of reversionary position. It was not averred that Mrs. Hunter was in possession, and, in fact, possession was not averred all. If it was contended that the trespass xvas other than as against the possession, the circumstances under which the corpus of the property was damaged must be set out. He would submit that the count was bad. He was also at a loss to understand liow the order under the Trustee Act could vest in the appellant the right to bring the action. This objection, that the order was not virtually an appointment of a trustee, would apply to the whole of the counts throughout the declaration. The appellant sued by virtue of an alleged legal status, and rule 74 provided that in such a case the facts relating to such status should be specifically stated. The appellant should have set out a sufficient order shewing his appointment, and this vice went to the whole . declaration. Another question . arose, viz.: Was a personal claim for damages for interference with the possession of real or personal property a chose in action within the meaning of the statute? There were often cases in which choses in action arising from personal property might pass, but he did not think the present was one. He would refer the Court to “Woodfall on Landlord and Tenant.” Bth edit., p. 677, where it would be seen that in the case of an action for rent, a beneficiary who did not let or demise could not recover, and vice versa, and that a trustee could not constitute himself landlord by merely giving- notice to the tenant to pay rent to him. His Honor Mr. Justice Williams stated the suppositious case of a trespass to lands, the lands being in the occupation of a tenant at will. In whom would the light to the action vest ? Mr. Travers said most certainly in the tenant, as the essence of the action was interference with the occupation. He would submit that the count was utterly bad, as it did not contain the necessary averments, inasmuch as the appellant was improperly appointed, and the light of action did not pass to him under the vestiug order, and because his status was not set out as required by the rules. He would mention the case of Vallance v. Savage, 7 Bing 595, which dealt with the respective positions of those in possession and reversioners as to actions for trespass. He gathered from the second paragraph in the second count that it was intended for a count for conversion. There was a special allegation as to the property in the goods, but tlie appellant’s status was again not set out. Assuming that a cause of action would have vested in the original trustees for the conversion they must remember the complication of the circumstances^ —first the mortgage, then the settlement of the equity, and then the proceedings under the petition under the Trustee Act. His Honor Mr. Justice Johnston thought that they should not encumber themselves with the English term “conversion.” Mr. Travers said that the rules used the

word conversion, although in Moorhouse vMoore it was laid down that every declaration setting out facts entitling the plaintiff to _ recover was to be deemed specific. lhe devisee had made a mortgage and settlement and remained in possession. A mortgage of goods had been held to be an absolute assignment, and so clear was this that such a mortgage was held to imply a power of sale. His Honor Mr. Justice Williams said that there were two cases rather against Mr. Travers’ contention, it being laid down that a mortgagee of chattels could not maintain an action for trover if under the terms of liis security the time for payment had not arrived. Mr. Maeassey mentioned that one o>. the cases referred to was Mears v. Tendon, and S.W. Ry. Co. Mr. Travers then quoted from lusher on Mortgages,” as showing that a mortgagoi could maintain trover so long as the possession remained in him under the mortgage. The use vested in the mortgagor under the re-demise, the property being vested in the mortgagee, no person but Mrs. Hunter could be the person entitled to maintain an action of trover, eitliei as against a stranger or as against the mortgagee. The appellant claimed subject to facts utterly inconsistent with possession or the right to possession. He would admit that there was au implied right ill the mortgagor to possession until the happening of certain events, but this gave no right to the trustee. When the bank thought it necessary for their own interests they were at liberty to determine the mortgagor’s possession, and reduce their previous ownership in the goods into possession. The Court had nothing to do with the hardships of the case. When it was sought to charge the bank with conversion it was necessary to show that they had no power to take the goods under the terms in the mortgage. His Honor Mr. Justice Gillies pointed out that the count alleged trover of goods nob in the settlement. Mr. Travers said that this was a cause of action which should not have been joined, and the appellant was in fact not entitled to anything outside the settlement. It had been contended in the argument on the third count that a reasonable ground should have been shown for the exercise of the powers, He would submit that there was nothing to negative the presumption that reasonable and probable cause had been taken, and, as in an action for malicious prosecution, so in the present case the appellant should have proved that the want of reasonable cause had an existence in fact. As to what would constitute reasonable and probable cause was a question for the Court. The same vices were common to this count as to the previous one. He did not propose to offer any remarks as to the fourth count, as it had been virtually abandoned by the appellants. Before proceeding to the judgment, he would refer the Court to Addison on Torts, 4th Edit., p. 289, for authority as to plaintiffs sueing iu trespass, and to the case particularly referred to there—Hoskins v. Phillips, 3 Excheq. 168. He would submit that judgment should have been arrested, on the ground that there was no cause of action ; but assuming that he was in error, he would next refer to the rule. There was very little difference indeed between a new trial and a trial dr, novo. The respondents were entitled to a trial clc novo, on the ground that three of the counts in the declaration were bad. The damages awarded were on the first issue, which included good and bad counts, and made the verdict defective.

His Honor Mr. Justice Johnston pointed out that the issue contained both fact and law, but the Court would presume that the jury found on the learned Judge’s direction as to the law. Mr. Travers then proceeded, and said that the fourth issue should have been eliminated, and the fifth was the only one left for consideration, as it dealt with the whole subject matter of the declaration. Reference had been made to the rule under which the damages could be apportioned on the application of either party, but this was more strictly a matter for the plaintiff in the Court below. As to the verdict being against the evidence, there was no doubt as to the goods being taken and sold, and the questions which arose were three: Was the sale wrongful? Were the goods the plaintiff’s ? Had the plaintiff any status, and if so, had he come in proper form before the Court ? The action (if there was one at all) ought to have been brought against the Bank for careless and improper conduct in exercising the powers in the mortgage deed. The damages were excessive as under the first count in the declaration, for no property in the goods being alleged they should not have been taken into consideration in assessing damages. As to the conversion, it did not appear that the amount due to the Bank had been taken into consideration, and the same question arose in the third count. As the damages had been on the whole of the issues and had not been apportioned, the Court could not now do so. Before concluding he would again call the attention of the Court to the destruction in actions of trespass by occupiers, where the damage was assessed on the injury to the residential right, and by owners where they were assessed on the injury to the permanent estate. He would submit that the excessive damages was quite a sufficient ground why there should be a rule absolute for a new trial, or that a trial cle novo should be granted on the ground that the judgment was defective, or that judgment should be arrested, no cause of action being disclosed. The Court would be quite justified in sustaining the rule absolute. Mr. Stewart followed on the same side, and submitted that the vesting order was entirely inoperative so far as the present action was concerned. The order should be read as if the words “ chose in action ” had been used, for it could not receive greater force by going outside the statute of language. The Trustee Act included three different kinds of property, viz., land, stock, and clioses in action. Land and stock were defined, but chose in action was not defined at all. He would submit that the term referred to some defined ascertainable

rio-bt existing at the time of the creation of the trust. The 27 th section dealt with the term. His Honor Mr. Justice Johnston and his Honor Mr. Justice Gillies expressed an opinion that the term meant a thing lymg m Mr Stewart then proceeded and said that the statute distinguished between a right of action and a thing in action. It might be fathered from section 35 that the idea pervading the statute was that a chose in action was some liquidatable ascertainable matter which should also be the subject of the trust. When the Act was passed in 1850, choses m action were not assignable in England. The adoption of the Trustee Act in New Zealand in i 554 should give rise to the supposition that it was adopted with the same intent as it had been in England in ISSO, and the meaning of the term should be construed now as it was when the Act was first passed. All through the Act, with the exception of section 47, only the three kinds of property before mentioned were referred to. In this section . the term “personal estate” was used, but as it referred to escheats and forfeitures, no doubt it was used advisedly, as if a wide term were not mtrodueed the usual construction of law. as against the Crown, and in favor of the subject, would prevail; and the Crown might suffer. He would refer the Court to Ince on the Trustee Acts, and to TJrlin, another author on the same subject. Wood fall’s cases before cited were also important as showing that the statute would be interpreted by the practice, lhe practice of the Court of Chancery was always to ear mark, as it were, and indicate specifically each chose in action in a vesting oidei. Daniels’ Chancery Forms, p 1941, as to forms of petitions, and Seaton on Decrees, p. 804, as to forms of decrees, would illustrate his meaning. In his opinion chattels moveable were not within the statute at all, and it was only to classes of property not passable by delivery that it applied. Hotel stock was not the class of property which would come within the meaning of the Act, because in such property a trust could have no continuity.

His Honor Mr. Justice Williams pointed out that the interpretation clause extended the term “ mortgage” to a m irtgage of chattels. He mentioned this because he thought Mr. Stewart was under the impression that because chattels would not pass, therefore rights of action arising out of chattels also would not pass. Mr. Stewart said there was nothing to justify the assumption that the property was even contemplated as being the subject of a trust, and it did not come within the provisions of the Act. The rule formerly as to choses in action was that they were not assignable. The King was always exempt from this rule, and on assignment from him a subject could always sue in his own name, but it was laid down in “ Spence’s Equity Jurisprudence. that the King could not assign an uncertain thing such as damages for a trespass. From Harris v. McFarlane, 2, Court of Appeal Cases, the inference could be drawn that a mere naked right of action like the present would not pass. Reference had been made to the Conveyancing Ordinance, but although a chose in action might be assigned by deed, still it by no means followed that the Court would would have a similar power under the Act. The case of King v. Johnson, cited by Mr. Maeassey, went no further than the assignment of a debt. The words of the Judicature Act were almost synonymous with those in the Trustee Act, and it had been laid down under the former statute that it only applied to an ascertained debt. His Honor Mr. Justice Williams pointed out that the words were “ debt or other chose in action,” which might be construed as ejusdern generis. Mr. Stewart said that he would contend that the trustee Driver never had any right under the settlement capable of being transferred to Webb. Section 50 of the Conveyancing Ordinance provided as to acknowledgements by married women. There was no evidence of an acknowledgment in the present case, and he would contend that the freehold did not pass under the settlement. The interest of the trustees (if any) was subject to the right of the bank under the bill of sale. Mr. Stewart then raised objections to the declaration of a similar nature to those raised by Mr. Travers, and then cited Bailey v. Godfrey, 5 Amer. Rep. 157, the language of which was most suitable in its application to the present case. Hayman v. Governors of Rugby, School, 43 L.J. Chan. 834, also bore on the case, and as to a reasonable time being allowed for payment under the bill of sale Wharleton v. Kirkwood, 29 L.T. N.S. 644, was a much later decision than those quoted on the other side. Baron Bramwell’s judgment also bore on the construction of the term immediately, he stating that if the previous decisions were to be upheld they would have to insert a, clause in deeds declaring that “ immediately meant immediately and nothing else. He would submit two points as to the construction of the deed viz., (I)—That it should be construed most strongly against the mortgagor, as the deed was tendered by her to the bank, and they consented to advance money on it; and (2) that the rule of construction should be to give effect to every word if possible. Under the deed the mortgagor was merely a tenant at will, and the bank had a perfect rio-ht to determine the provision when they pleased. White v. Morris 11, Com., B. 1010, and Mayhew v. Suttle 4, E. and B. 351, bore him out in this contention. It was alleged that the entry of the bank was antiguous, but in his opinion there could be no doubt that the bank had intended to exercise their powers when they first took possession. It was the interest of the bank at the outset that there should be a good sale. Ulbert v. Grosvenor Investment Co., which had been cited, was not analogous to the present case, as it was merely another application of the doctrines of estoppel. He would submit as to the alleged verbal agreement with the Bank—(l) that there was no consideration : (2) that the parties could not

make a variation except by deed ; (3) that in any case the contract should have been. in writing ; and (4) that ic was a direct violation of the trusts of the settlement. There was also nothing to show that the appellant had done anything under the agreement. As to the rule, if the Court ultimately granted a new trial, he would submit that the respondents were successful in the appeal. His Honor Mr. Justice Johnston asked if Mr. Stewart contended that the Court had no discretion as to costs?

Mr Stewart said that he was quite aware that the Court had a discretion, but it was a judicial discretion. The cases of Cornish v. Forman and the Westland Tramways Company laid down a principle as to costs when the defendant moved in arrest of judgment, and he would submit that the respondents were entitled to all costs from the granting of the rule. Motions for rules for arrest of judgment and new trial were concurrent motions, and the Court could deal with them as it thought fit. Turton v. Jackson, Macassey’s Reps., 877, bore on this subject; also Price v. Reid, 6 Scott’s New Reps., 101 0. He would also submit that the Court could not say upon which count the jury had awarded damages, and that the rule absolute was in proper form, Supposing the plaintiff had proceeded in eiror. and that the defendants had not obtained their rule, they would have lost all right to a new trial. He would leave the case in the hands of the Court. . . His Honor Mr. Justice Johnston intimated that they would hear Mr. Maeassey in reply next day at 2 o’clock. JENKINS V. JENKINS AND ANOTHER. Mr. Stewart, by leave of the Court, mentioned the following cases in the above cause : —Edson v. Edson, 11 American Rep.; Adams v. Adams, 12 American Rep.; and Johnson v. Coleman, 23 Wisconsin Rep, mentioned in Story’s Equity Jurisprudence, par. 252. The Court then adjourned until 11.30 next day.

DIVORCE COURT. Wednesday, November 29. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) The Court of Divorce sat as above, and proceeded with the case of STANLEY V. STANLEY. Mr. Stafford again appeared for the petitioner, and called and examined Mr. G. E. Barton, barrister at law, who is also a duly qualified practitioner of the colony of Victoria, to give evidence as an expert witness as to the marriage law of that colony. A decree nisi for a dissolution was granted on the usual terms. FORREST V. FORREST AND HAGAN. This was a husband’s petition for divorce. Mr. Barton appeared for the petitioner, and stated the case, which had been adjourned from a previous sitting for the production of evidence taken by commission at Timaru. The petitioner was examined at length in support of the case, and some correspondence was produced, the case being adjourned until Friday. The Court then adjourned until Friday, at three o’clock. COURT OF APPEAL. The Court of Appeal sat at a quarter to two, and proceeded to consider REGINA V. NORMAN EVANS. This was a criminal case from the Christchurch division of the Supreme Court, in which the prisoner had been convicted for perjury, aud his Honor Mr. Justice Johnston had reserved the question for the Court of Appeal whether the conviction could be supported. Mr. Gordon Allan appeared for the Crown, aud stated that the alleged perjury arose in a prosecution for larceny. The Resident Magistrate had treated the proceedings as for summary conviction of larceny under the Justice of the Peace Act, 1867, and acquitted the prisoner. It had been contended that the Resident Magistrate had no jurisdiction to hear and determine the charge on the information as laid, and that it was not competent for him to proceed on that information, except for the purpose of preliminary examination as to the indictable offence, and that their formation was substantially insufficient to support a summary conviction, as it only averred a suspicion of larceny, and did not allege to whom the property belonged. He would submit that under these circumstances the conviction for perjury on these proceedings should be sustained. His Honor the Chief Justice delivered judgment, and said that there were several defects in the information, but the jurisdiction of the Court was not thereby affected, and the conviction would be affirmed. The other Judges concurred. WEBB V. NATIONAL BANK OF NEW ZEALAND (LIMITED.) Mr. Travers, by leave of the Court, mentioned the following cases as bearing on the fourth count, viz., Harvey v. Gibbons, 2 Levins, 161; McGregor v. Dover, and D. Ry. Co., 18 Q. 8., 618 ; and Pribble v. Broghurst, 1 Swanston, 309. Mr. Maeassey then replied and said that he would deal with the question of whether the appellant had disclosed any legal status in the declaration. If his friend’s contention was sustained by the Court, the question aiose supposing the bank were justified iu tlie sale, would the Court allow the appellant to amend his declaration so as to extend his cause of action to the excess which the evidence showed took place at the sale. It should he remembered that the bank could have demurred to the declaration. He was quite willing to presume that there was no complete creation of a trust, aud would cite Harland v. Binks, 15 Q. 8., 713. Lord Campbell there laid down that a verbal assent by one of the creditors ti an assignment for the benefit of creditors was sufficient to render it non-

revocable. The question which arose as to the leasehold was —was there a privity of contract between Smith and the lessor? The attestation should have been by two witnesses under the Conveyancing Ordinance, but as amended only one witness was required. White v. Hunt, L. Rep. 6, Excheq. 32, would furnish one test by which the effect of the settlement might be arrived at. Supposing the Court should hold that a trust was created by the settlement, there was nothing inconsistent in the Court continuing that trust by a vesting order under the Trustee Act.. Supposing a trustee refused to exercise a right of action, the Court of Chancery liad full power under the Trustee Act to vest that right in some other person that the action might be brought and the interests of the beneficiaries be looked after. Section 23 of Trustee Act, 1850, made special provision on this subject, as also did section 24. The forms in Seaton on Decrees, p. 798, also bore on the subject, a form being given under which a chose in action could be vested in a new trustee where the old trustee refused to proceed with it. Iu the same work, page SOI, sections 32, 33, aud 34 were particularly referred to. He would contend that the intention of the Legislature was to relieve beneficiaries from trustees who refused or neglected to act. He would submit that the vesting order passed to the appellant all that was necessary to enable him to sue, being both an appointment and a conveyance. The Court intended that the real aud personal estate should vest in Webb in the place and stead of Driver. As to the contention that the existence of the Conveyancing Ordinance should not be considered in looking at the effect of the Trustee Act, he would submit that the statute should be read by the light of the ordinance. The New Zealand Legislature directly sanctioned the assignment of choses in action, and in looking at the vesting order this fact should be considered. It was admitted that under tlie authority of King v. Johnson a debt was assignable, and why should not the same doctrine apply to the vesting order. If the contention of the other side was adopted, many inconveniences would arise for moveable chattels, and many things which savoured of personalty would not be assignable by the Court in appointing a new trustee under the Statute. In re Joyce, L. Rep. 2 Eq. 576, was a case which would illustrate the inconvenience if a. similar doctrine was applied to the bankruptcy law. Having regard to the Conveyancing Ordinance and the language of the Trustee Act, there was nothing to shew that the order was not perfectly valid and effective. As to the restrospective nature of the order, he would refer the Court to section 35. The case of Hyslop v. Baker, in his opinion, if it was carefully analysed, would be found to apply to the present case. The right of action must vest in someone, and tile order was not therefore the new appointment of a trustee alone, hut a sort of statutory conveyance. De Gex anci Smith on Composition Deeds, p. 96, the Notes to Ryal v. Rowles, and Wetherall v. Julius, 19 L.J.C.P. 367, all applied to and bore out his contention. Notwithstanding Cornish v. Forman, he would contend that the same goods and chattels were alluded to all through the declaration, and by the findings of the jury were identified as the property of tlie appellants. Dignan v. Bailey, L.R. 6., Q.B. in Ex Cham. 47, would bear him out in this view. He would submit that under the settlement Mrs. Hunter was not entitled to possession. The husband also could not sue, and he contended that Mrs. Hunter should he looked upon as having possession as agent for the trustees. Her possession was to be looked upon as the constructive possession of the trustees, which was quite sufficient to enable them tu sue. White v. Bailey, 30 L.J., C.P. 253 ill istrated this principle. Mrs. Hunter’s interest could alone be asserted through the trustee. Unless the Court came to the conclusion that the order vested no right in the appellant there could be no possible objection to the second count. It had been contended that the introduction of the words “other goods, etc.,” introduced a different cause of action; but in his opinion they did nothing of the kind. The articles were such as in the way of trade would change, and the doctrine of confusio bonorum would apply, the substituted goods becoming the property of the appellant. The cases on the subject were all collected in Randall v. South Australian Insurance Company. Law Rep. Privy Council. The right to seize the after acquired property only arose after what he would term a novus actus. The question of the bank’s right was affected both by the marriage and the settlement. The husband by being a party to the settlement waived his marital rights. Karr v. Ackermaun, 25 L.J., Excheq. 90, illustrated this argument. The objection to the third count was cured by the verdict of the jury, as that verdict was given by proper direction as to the law from the learned Judge at the trial. In Mears v. S.W. Railway Co., cited yesterday, an important principle was laid down as to possession in an action for trover. In “ Maine on Damages ” there was also further authority. He did not propose to say anything further as to the form of the rule, if the Court found that the Court below was wrong in granting a rule for a new tiial on issues° rendered inoperative by the first breach of the rule, he wo ild submit that the appellant would be entitled to costs. As to the remaining portion of the rule he would not trouble the Court, but would submit that if the appellant had any status he had. clearly shown an actionable wrong. Rainey v. Bravo, before referred to, dealt with the question of amendment, and he hoped the Court would take it into consideration, although this suggestion was not intended as a waiver of any of his previous arguments. He would leave the case iu the hands of the .Court. Judgment was reserved, it being arranged that it should be delivered by Mr. Justice Williams in Dunedin, and in vacation if necessary. Leave to appeal to the Privy Council was reserved by consent on tlie usual term 3 as to costs. . . The Court then adjourned until 11 o clock: next day.

ThokßDay, November SO. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Williams, and Mr. Justice Gillies.) The Court of Appeal sat at 11 o’clock, and proceeded to consider the case BROGDEN AND SONS V. THE QUEEN. Mr. Allan appeared for the Crown, ana Mr. Travers for the Messrs. Brogden. Mr. Allan siad that he appeared for the Solicitor-General, and stated that there had been a demurrer by the petitioner’s to the pleadings, and the Chief Justice had ordered that so far as the second plea was concerned, the demurrer was allowed, leave being granted to the petitioners to reply, on payment of costs. Mr. Travers had subsequently obtained a rule ■nisi, that the Crown should show cause why the order of the Chief Justice should not be so amended that the petitioners might enter up judgment on their demurrer. He was there to show cause.

Mr. Travers, in reply to the Court, explained that the first plea had been abandoned, and he claimed for judgment to be entered for the Messrs. Brogden on the second plea. The third plea on the record remained undisposed of. He had obtained leave, and had replied to the second plea. Mr. Allan said that the decision of the Court on the demurrer was for the Crown on the second plea. Heave was then given to the petitioners to amend on payment of costs. He had thought that nothing would have been done until tlie costs were paid. His Honor IMr. Justice Johnston said that he understood Mr. Allan’s position was simply to show cause against the rule. His Honor the Chief Justice asked would Mr. Allan withdraw the other plea ? Mr. Allan said that the demurrer must stand over until the issues of facts on the second plea were determined. He had no objection to the Court certifying for the petitioner on the third plea. His Honor the Chief Justice asked why judgment should not be signed on the third plea ? His Honcr Mr. Justice Gillies said that the result would be judgment on the demurrer as to the second plea for the Crown, and on the third plea for the petitioner. His Honor the Chief Justice thought that justice would be done by amending the certificate.

The rule was made absolute, the certificate being amended, giving judgment on. the demurrer as to the second plea against the petitioners, and as to the third plea in tlieir favor.

HARRISON (EXECUTOR, &C.) V. REID (SOLICITOR-

GENERAL) AND OTHERS. This was a suit for a decree for administration of the estate of George Itees, deceased, the point at issue being the trusts of a bequest contained in the will of the deceased, for the benefit of a school at Wanganui. Mr. Chapman appeared for the heir at law, John Ralph Rees ; Mr. Hart for the trustee and executor of the will, Henry Shafto Harrison ; Mr. Allan for the Solicitor-General, and Mr. Brandon for the Wellington Education Board, who claimed to be the body entitled by law to administer the bequest.

Mr. Chapman stated that this was a case removed by order of the Chief Justiee to the Court of Appeal. The heir at law had not originally been a party to the suit, but had since been joined, and to all intents and purposes it was an original suit. The plaintiff was executor and trustee under the will, and asked for administration. He apprehended that the Court would deal with the suit as the Court 'of Chancery would with an administration bill. He then read the printed statement of the case at length, and said that he would first call the attention of the Court to the dates of the various events, as showing whether the legacy vested in the old school "committee under the Education Act of 1855. The will provided for payment to such educational body as should then— i.c., on the death of the tenant for life—be capable of applying it in Wanganui. The tenant for life died in October, 1871. On the 3rd May, 1870, a meeting of electors was duly called, and a committee of 12 elected. The committee should have been elected for the ensuing year, and a meeting of ratepayers should have been summoned by the committee on the 3rd of May following. This, however, was not the case, which would prevent the legacy from vesting in anybody under the Act, and it did not appear from the case that there was any other educational body within the meaning of the devise.

His Honor Mr. Justice Johnston pointed out that the school existed, and although there was no corporation yet there was the object of the charity. Mr. Chapman then proceeded, and said that it was not to be presumed that because the school was subsidised by the Government it was therefore a public school. During the first year the committee would have taken the legacy if it had fallen in, but after that the school ceased to be a school within the meaning of the Ordinance, and on the death of the tenant for life had no right or title to the legacy. His Honor Mr. Justice Gillies pointed out that the institution existed dc facto, although not dejure. Mr. Chapman thought that as a body it had ceased to exist. The Superintendent, under section 3 of the Act of 1871, had power to keep the committee alive in case of neglect by them in this behalf, but it required some overt act on his part, and he had power even to appoint a new school committee. His Honor Mi’. Justice Williams thought that this power vested in the Superintendent shewed clearly that the school was a public institution.

Mr. Chapman said that the committee had to take the school under their control to make it a school under the Act. At the time of the falling in of the legacy there was no properly elected committee, and consequently there was no body to take the benefit of the gift. The Education Board had power to aid schools not established under the Act, -which appeared to contemplate the subsidising of private schools,

so the f*ct of such support being accorded to the school in question would not make it a public school. The Act of IS7I provided for the creation of a Board which should be a corporation, with certain powers and duties, and when the old committee ceased to exist under that Act, the schools came under the control of this Board. It could be no more said that the schools were under the authority and sanction of the Provincial Government than that a bank clerk was under the General Government. *lhe Board was a close corporation, entirely independent of the Provincial Government. The Education Board could not be termed a trustee, director, governor, manager, or commitee of the school, so as to come within the terms of the devise. The Board was created for the whole Province of Wellington, and it was only on an application of the cy pres doctrine that the legacy could be handed over to them, not that he would admit that the cy pies doctrine was applicable. His Honor Mr. Justice Williams pointed out that the trustees were merely a conduit pipe, and it was more to the object of the trust the Court would look. Mr. Chapman submitted that the heir-at-law was entitled, as there was no body- capable of taking the benefit of the trust. If their Honors considered that there was no such body he would then have to deal with the question of cy pres. He would first call attention to the defect in the proclamation. He had only been able to find one case, which he hoped the Court would allow him to mention later on in the case. The division into districts was a condition precedent to the proclamation that the Act should come into force in particular districts. As to cy pres, the rule established was that if there was a gift to a particular charitable institution which had ceased to exist without any apparent intention that the gift should be extended, or showing any general charitable intention, the doctrine did not apply. Hayter v. Trewell showed that a simple gift without any further words did not justify the application of the doctrine. Marsh v. Attorney-General, 30 L.J., Chan. 233, appeared to apply to the present case. As there was no institution existing at the time of the bequest falling in, and no general charitable intention could be gathered from the will, he w uld submit that the heir would become entitled.

His Honor Mr. Justice Johnston pointed out that in the Attorney-General v. Bunny the whole principle of charitable funds and bequests was considered by the Courts. The cases cited by Mr. Chapman referred to private institutions only. Mr. Brandon said that all schools of learning came within the equity of the statute of Elizabeth.

His Honor Mr. Justice Johnston said that in the Attorney-General v. Heelis, it was laid down that the origin of the trust was the important matter for consideration. Mr. Chapman then said that as to costs he would like to point out that the heir had been made a party to the suit, and even if he did not succeed he would be entitled to costs. The case was practically a motion for decree, and the Court could at once make a final decree as to whether or not he was entitled. It was admitted that John Ralph Rees was the heir-at-law, and lie was entitled to move for a decree with costs, as between attorney and client. Harlow v. Harlow, E. Hep. 20 Eq., 780, and Miles v. Harrison, 3j. Prop., 9 Chan. App. 316, bore upon this subject. In charity cases the heir will be allowed costs as between solicitor and client, to which principle the following cases applied : —Currie v. Pye 17 Vesey 468 ; James v. James 11 Bevan 397 ; and the Attorney-General v. Bevan 4 Bevan 299. The question was, has the heir been vexatious, which was illustrated by Blenkliorn v. Eeist, Dickinson 143. A question had arisen as to whether the devise was void under the Mortmain Act, but the cases seemed clear that the statute did not apply to the colonies. Mr. Hart, for the executor and trustee, referred to the particular terms of the bequest, and said that the Education Board was constituted for the whole province of Wellington, and, although Wanganui was in the province, he thought that the Board was not such, a body as that contemplated by the testator for the management of the bequest. Pie would submit that in any case there should be a special direction as to the administration of the fund.

Mr. Allan, for the Solicitor-General, said that in his opinion the Board would take the bequest without the application of the cy pres doctrine. The intention of the testator was to benefit a school at Wanganui, and the question of the particular body which should administer the trust was immaterial. It was a mere question of carrying the benefit from the donor to the receivei’s. Plis position was simply to state an opinion as to whether cy pres should be applied or not. Pie was simply thex-e to protect the public interest, and as to the suggestion of a scheme, he would only say that the view previously expressed as to a direction in the decree as to the administration of the fund in Wanganui was quite satisfactory to him. The testator did not contemplate that the money should be applied to the education of a few European children and a large number of Maoris, and this matter should be seen to. Mr. Chapman said that the Board was not empowered to educate native children living with their tribes.

Mi’. Brandon pointed out that the capitation rates for children were not abolished, and the terms of the bequest could easily be complied with, so far as European children were concerned. Mr. Allan, in reply to the Court, said that if the Court applied cy pres, and found that the Board was carrying on such an institution at Wanganui as was contemplated by the will, there would be no necessity for a scheme. Mr. Brandon sai l that the Board had full power to appoint a committee to carry out the trust. Mr. Allan said that the case—the Society for the Propagation- of the Gospel v. the Attorney-General—dealt with the question of

a scheme. He would apply for costs as between solicitor and client. A similar application was made by ivlr. Brandon and Mr. Hart. The Court intimated that they would find a decree in favor of the Board. Miuutes of the decree to be prepared by Mr. Brandon and submitted to the other counsel, and then to the Court. Some discussion took place as to the form which the decree should take, and the Court adjourned until next day, at half-past three o’clock.