The Courts.

New Zealand Mail, Issue 546, 22 July 1882, Page 21

The Courts.

SUPREME COURT.—IN BANCO

Thursday, July 13.

(Before their Honors the Chief Justice and Mr Justice "Richmond.) BE DE LAUTOUR.

Mr Travers applied to the Court that Mr De Lautour, M.H.R., be admitted as a solicitor.

From the affidavits, it appeared that Mr De Lautour wa3 articled to Mr Rees for five years, of these only between three and four had expired. Mr UeLautour had, however,passed the barristers’ examination. During the time of the continuance of his articles, Mr De Lautour had attended in his place in Parliament, the question being whether his service under the circumstances was bona fide continuous within the meaning of the Law Practitioners Act,

1801, section 8 ; and whether, having passed the barristers’ examination within three years, he could be admitted as a solicitor.

Mr Travers argued that the performance of Parliamentary duties, so far from interrupting the study, was, in reality, an excellent training, both legal and forensic ; also, that the passing of the barristers’ examination entitled the student to admission as a so icitor. Mr Justice Richmond suggested that there was another sort of training, only to be obtained by study in an office. A geut'eman might make a brilliant defence in a political case, aud yet blunder his client’s money away t>J a mistake iu an affidavit, or in the filing of a bill of sale.

A suggestion was thrown| out from the Beach that Mr De Lautour might possibly treat the articles as non-existent, and move for admission as a barrister. The Court took time to consider. LOCKE T. SHEEHAN.

The question for the Court was whether a general devise in the will of Karaitiana exeouted a power of appointment contained in a deed of settlement. Mr Travers appeared for the plaintiffs, and Mr Conolly and Mr Chapman for the defendants. After argument a decree was made in favor of the defendants. The costs of all parties, except certain Native plaintiffs, were ordered to be paid out of the estate.

(Before his Honor Mr Justice Richmond.) HOUGHTON V. COMPTON.

This was a special case stated by consent of the parties without pleadings. In 1875 the plaintiff, then a married woman, and her busband, leased by deed (not acknowledged) a parcel ef land in Wellington to Charles Meody. In 1876 Moody under-leased to the defendant at the same rent. Defendant paid rent to the plaintiff, wha always protested that ■he did hot recognise him as her tenant, but took the money as Moody’s rent. Plaintiff’s husband died iu 1879, and in the same year Moody became bankrupt and obtained his discharge, his trustee not electing to take the lease. Defendant still continued to pay rent, and the plaintiff still took it as Moody’s rent, and did not recognise the defendant as her tenant. In September, 1881, defendant agreed with Moody to surrender or give up to him the under-lease in consideration of £156, and Moody at once took possession of the property. A few days afterwards plaintiff called on Moody for the rent, who told her that it wonld be paid if she would consent to his assigning the lease as security for an advance. Negotiations took place between plaintiff and Moody with the view to ending all disputes by Moody surrendering his interest in the lease to the plaintiff, but the negotiations proved fruitless, and the plaintiff now ■ought to recover from Compton the rent due. Mr Gully appeared for the plaintiff, and Mr Brown for the defendant.

Mr Gully contended that the bankruptcy of Moody and the non-election of his trustee to take the lease, vested the reversion iu the plaintiff, and created a direct privity between her and the defeodant upon the terms of the lease or under-lease, it mattered not which, as in this case the rent reserved and the terms were the same. He cited the Debtors and Creditors Act, 1876, sec. 69 ; Conveyancing Ordinance, sec. 44 ; Miller v. Young, Supreme Court of New Zealand, reported in N.Z. Mail, 11th February, 1882 ; Walton v. Levey, L.R., 17 Ch. Div., 746 ; Smalley v. Hardinge, 44, L.T., 503 ; Taylor v. Gffiott, L.R.. 20, Eq., 682 ; O’Farrell v. -SteveusoD, L.R., 4, Ir., C.L., 715. Mr Brown, for the defendant, contended—1. That the action of the parties had revived the ©riginal lease, and-the plaintiff’s remedy was therefore against Moody. 2. That there had been a surrender of the sub lease by operaof law. Thomas v. Cook, 2, B. and Aid, 119 ; Nickells v. Atherstone, 10, Q. 8., 944 ; Phene v. Popplewell, 31, L.J., C.P., 235 ; Bees v. Williams, 2, C.M. and R., 581. The further heariug of the case was adjourned till next day.

Friday, July 14. • (Before Mr Justice Richmond.) HOUGHTON V. COMPTON.

Mr Brown concluded his argument that there had been a surrender by operation of law of the under-lease. He also argued that, as Mrs Houghton had never comfirmed the lease, she could not treat it as existent, and, further, that her acts amounted to an avoidance of the under-leabe.

Mr Gully, in reply, contended that the underlease, not being acknowledged by Mrs Houghton, was voidable only, and had never been avoided, citing Parry v. Hindle ; Toler v. Slater, L.R. 3, Q.B. 42 ; Woodgate on Landlord and Tenant, 40.

The Court took time to consider. PLIMMER V. DUGGAN.

This was an appeal from the judgment of Mr Hardcastle, R. M., affirming the validity of a certain bill of sale made by Mrs Hannay. There were two bills of sale in the affidavit verifying the first bill of sale. There was a blank for the name of Mrs Hannay, and she was described as a widow. It was admitted that the objections were fatal to this instrument.

The affidavit verifying the second bill of sale described Mrs Hannay as of Thorndonquay, hotel proprietor and boardinghouse keeper. She resided not at Thorndon-quay, but Cambridge'terrace. She owned a boardinghouse and was lessee of an hotel, aud carried on business as a licensed publican. The case stated that her principal employment was that of licensed publican, but she visited the boardinghouse nearly every day. Mr Edwards appeared for the appellant, and contended that the magistrate was wrong in holding the affidavit sufficient; all the occupations must be truly stated, citing ex parte the National Deposit Bank re Wills (38 L.T., 264)* His Honor said that case was reserved (62 W.R.) The following cases were cited : —Larchin v. North Western Deposit Bank (L.R., 10 Ex , 64), Briggs v. Boss (L.R. 3, Q. 8., 268), Pickard v. Bretts (29 L.J., Ex. 18), Murray v. McKenzie (L.R. 10, 0.P., 825), Blackwell v England (8 E. aud B. 541), Blount v. Harris (4 Q. 8., D., 603). His Honor gave judgment as follows : Having looked at the numerous cases cited by both parties, I do not think it necessary that I take time to consider my judgment. 1 he question is whether the description in the affidavit filed with the bill of sale is a sufficient description within the statute of the residence and occupation of the mortgagee, Mrs Rate

Hannay. If the description is imperfect, I can only say it is imperfect by some omission, for it is correct in the sense of being true. It is correct in describing her as resident at Thorn-don-quay. This is clearly shown by the cases Blackwell v. England, and Attenborough v. Thompson. These cases show that the place of business where the grantor will be found on inquiry is the place of residence within the meaning of the Act, though, to use the expression of Mr Justice Earl iu the former case, her place of pernoctation may be elsewhere. Mrs Hannay is therefore correctly described as resident at Thorndon, though her pernoctation had already commenced at Tattersall’s Hotel, in Cambridge-terrace. I think also that the description of Mrs Hannay as a boardinghouse keeper is also correct, as she was still the •wner of the boardinghouse wheu Bhe took possession of Tattersall’s Hotel. There is therefore nothing incorrect in the description. Furthermore, the description is such as would easily lead to the discovery of Mrs Hannay’s whereabouts. Any person making inquiry at the boarding-house would be at once directed to where she was to be found. The description, “ hotel proprietor,” so far as it has any meaning, is also correct. Is then the fact of her having another residence in Cambridge-terrace and another occupa ion of licensed victualler, and of such other residence and occupation having been omitted from the affidavit, to invalidate the affidavit? I cannot say that it does. Ido not go so far as to decide that the introducti in of a subsidiary occupation will in all cases be sufficient. There will always be the question whether the description is true and sufficiently accurate. Iu this case I think it is so. A reasonable interpretation must be put on the Act, so ss, if possible, not to avoid transactions bona fide in themselves, and where the Act has been substantially complied with. Appeal dismissed with cosls.

Wednesday, July 19. (Before their Honors the Chief Justice and Mr Justice Richmond.) RE DE LAUTOUR. Mr Chapman, instructed by the Wellington District Law Society, appeared to consent to Mr De Lautour’s application for admission as a solicitor. His Honor the Chief Justice then gave judgment as follows“ Application is made on behalf of Mr De Lautour for admission as a solicitor, he having passed the necessary examination. He claims to be entitled to admission as having fulfilled the conditions required by the Bth sub-section of section 16 of the Law Practitioners Act, 1861, by which section and sub-section no person shall be entitled to be admitted and enrolled ‘ unless he shall be at least twenty-four years of age, aud shall have been bound and actually have served as aforesaid for three years at least, aud shall, within three years after the expiration of such term of service, have passed such examination in law and general knowledge as shall for th* time being be prescribed tor barristers of the Court.’ It appears that Mr De Lautour is of the required age, and has passed the necessary examination ; but it also appears that he was articled on the llnh June, 1878, for five years, and that he came up for examination in April, 1882, that is, before the expiration of the term mentioned in the articles after three years and ten months of that term had elapsed. It is contended for the applicant that .under the provisions in question a person, though articled for five years, may, with the consent of the solicitor to whom he is articled, come up for examination at any time after three years of the term of five years have expired. We think that that is not permitted by the provision in question. The provision is express that the candidate is to come up for examination within a term commencing after the expiration of ‘ said term of service.’ The ‘ term of service ’ means the term for which the candidate was bound, and not so much of that term as he may have actually served. We are informed, however, that in at least two cases candidates were admitted who, having been articled for five years, had actually served only three. That being the case, we should be much disinclined to reject the application on this ground. Assuming, therefore, that the applicant has come up for examination within the period allowed by tbe A :t (were the service sach as the Act requires) we have to decide whether the service has been such as required by the Act. This service is by the 23rd sec ion to be bona fide actual and continuing employment of the clerk by the attorney in the business of tbe attorney, except as to such time as the clerk may have been employed as pupil with such barrister, special pleader, or agent, as in the Act mentioned. Thus the Letzislature expressly allows the time consumed iu certain specified employments, which alone would go far to show that no other employment was to be permitted during the term of the service. In the present case, we assume from what took place at the argument, though the affidavits are not explicit on the matter, that Mr De Lautour was a member of the House of Representatives throughout the term of his articles, except during any part of that time during which Parliament was dissolved, and that he regularly attended at Parliament during the sessions held in 1878, 1879, 1880, and 1881. Mr Rees’ affidavit is to the effect that Mr De Lautour served uader the articles till the end of September, 1881—that is, a period of about three years and three months, and that Mr De Lautour passed the whole of that term in the active performance of the duties of an articled clerk to Mr Rees, except during such times as Mr De Lautour was attending Parliament. As to these periods, we understand Mr Rees to say that daring tha session of 1878 and 1879 he, Mr Rees, was also a member of Parliament, and had an office in Wellington, and practised there as solicitor, and that Mr De Lautour acted as his clerk there ; that during a large part or the session of 1880, though Mr Rees was uot a member, he was transacting legal business at Wellington, aud that Mr Da Lautour acted as his clerk iu that business ; and that during the session of 1881, though Mr Rees was not in Wellington, practising personally there, Mr De Lautour performed there certain valuable legal work under Mr Rees’ direction and as his clerk. Assuming that it is satisfactorily established that Mr Rees him-elf was substantially carrying on the practice of his profession, and transacting legal business at Wellington during the sessions in the years 1878 to 1881, both inclusive, the question was, whether the articled clerk was or could be

serving him bona fide actually and continually as his clerk during these periods. We are clearly of opinion that Mr Rees, bj allowing his articled clerk to be a member of Parliament, and attend the sessions thereof, has permitted him to occupy a position entirely inconsistent with that of master and servant. As member of the House of Representatives alone, he was bound to attend Parliament at any time and at all times when iu session. It is notorious that when attending Parliament, the whole or the greater part of the time ef tinmembers is engrossed in the performance of the duties which they have to perform. Thus we think that the mere fact of being a member of the Legislature is inconsistent with the position of an articled clerk ; but even if the question depended upon the actual employment of his time, Mr Rees’ affidavit does not satisfy us that Mr De Lautour, during the sessions of 1878 to 1881 inolusive, so failed in his duty as a member of the Hous* of Representatives as to enable him to say that during those sessions of Parliament he was bona fide actually and continually employed as Mr Rees’ articled clerk. The application is therefore refused.” HOUGHTON V. COMPTON. His Honor Mr Justice Richmond gave judgment herein for the plaintiff, with costs, on the ground that the defendant’s sublease was still valid aud subsisting, notwithstanding the bankruptcy of the original lessee, and that there had been no surrender by operation of law. The judgment will appear in due course in the New Zealand Mail.

RE BROAD—HABrER V. CONWAY. Motion for rule absolute for prohibition. This was a Nelson case, in which the plaintiff sued in the Resident Magistrate’s Court for £176, abandoning £76 to bring the case within the magistrate’s jurisdiction. When the case came on for hearing, defendant’s counsel said he was embarrassed by not knowing on what items of account the £76 had been abandoned. Counsel for the plaintiff then asked leave to amend the particulars by striking out an item of £IOO, being for rent of the s.s. Lyttelton, which was done, and tha esse then adjourned by consent. At the adjourned heariug defendant’s counsel asked for judgment, saying that as £76 had been abandoned and £IOO struck out, there was nothing to recover on. The magistrate gave judgment for £76, and the defendant obtained a rule nisi for prohibition. It appeared in the affidavits that the judgment had, before the prohibition was moved for, been removed into the Supreme Court, and proceedings by way of garnisher summons taken on it. Mr Allan now moved the rule absolute.

Mr Conolly, for the plaintiff, contended that the judgment having been moved into the Supreme Court, and acted on there, there wa3 nothing in the Resident Magistrate’s Court to prohibit, citing Bridge v. Branch,L.R., fig. C.P., Div. 633 ; in re Leoaghau, Robinson v. Lenaghan, 2 Ex. 333 ; Denton v. Marshall, 32 L.J., Ex. 89. The defendant', by making no objection to the amendment, and askiug for the adjournment, admitted the jurisdiction of the Court.

Mr Allan, for the defendant, contended that it did not appear that defendant’s counsel had consented, and he was not bound to call the Court’s attention to the fact. Ellis v. Fleming, 45 L.J., C.P. 512 ; in re Hopper v. WarburtOD.

Their Honors refused the rule. The other cases on the list were adjourned,