THE COURTS.

New Zealand Mail, Issue 858, 10 August 1888, Page 22

THE COURTS.

SUPREME COURT.

In re McGregor ex parte McGregor, (Judgment of Prendergast, C. J., delivered 24th July, 1588.) This is an appeal against the disallowance by the Official Assignee in the bankruptcy of one McGregor of the proof by the bankrupt's wife of an alleged debt of £1343 owing from the bankrupt to his wife : the debt is made of a loan of £1055 made in July, 1883, and £2SB for interest fiom that date at 6£ per cent.

It appears that one Ann Couchman, residing in England, a great aunt of Mrs Me* Gregor, died some time before March, ISS3, (the exact date does not appear,) having by her will devised to Mrs McGregor certain lands in the terms,[so far as material, as follows * I devise my three messuages &c.. &c., and all other my real estate to my grandniece Mary, the wife of John McGregor, now in New Zealand, to such uses as she may at any time, or times, notwithstanding coverture by deed or will appoint and subject thereto to the use of the said Mary McGregor, her heirs and assigns.’ It appears that the real estate so devised Was at the time of the death of the testator subject to a mortgage of £6OO, and-that in or about March, 1883, Mr and Mrs McGregor joined in an authority to the mortgagee to sell the property for the sum of £1550, and that in July, 1883, there was received in New Zealand by Mr McGregor a draft for £941 6s 6d, representing the bal- . ance, after deducting the mortgage debt and interest, and including some rent accrued before the sale. In the letter transmitting the draft which was in favour of Mrs McGregor, the solicitors who sent it say th 6 reason for the draft being in her name is that the amount is properly payable to her. I gather also, that in the previous May, 1882, a draft had been 3ent by the same oolicitors lor £ll4 16s 4d, representing the balance of rents received in respect of the aamej property from 1879 to 1882, after deducting certain costs and other outlay. In July, 1883, ft document was signed by Mr McGregor, aud given to his wife. It is in the following terms : —* I, the undersigned, in consideration of having borrowed of my wife, Mary McGregor, the sum of £1055, do hereby agree to repay her the same, within seven years, 1870, at which time my eldest son will be 21 years old, with 6£ interest, payable half yearly.’ The 1870 is no doubt a clerical error for 1890.

The fact and the bona fides of the alleged transaction between the husband and wife was not really disputed. The ground upon which the Assignee rejected the proof waa, that the wife had no separate estate in the moneys lent, and this was contended mainly on the ground that as the devise was not to the separate use of the wife, she consequently was not in a position to lend the proceeds of the devised land to her husband. For the wife it is contended that the devise was to her separate use. The ground upon which this is contended is that the power of appointment by deed, or will, is, * notwithstanding coverture.’ It is contended, as I understand, that this is enough to constitute the devise as separate estato. But the ‘ power ’ is not property, and even if it were, the words would not have the effect contended for. The object of these words is merely to make it clear that the power to be exeroised by the women, though married, may be by her deed or will, notwithstanding her coverture, that is as if she were sole. This is the ordinary form in which a general power is given. As to the distinction between ‘ separate property ’ and a power to appoint given to a married women, the distinction is fully discussed in the judgment of Fry, L. J., in In re Armstrong, 55 L. J. Ch. 580. In the present case the devise in default of appointment is clearly not for the wife’s separate use ; see Lewin on Trusts 756, 757, where the cases are collected. None of the cases cited have any bearing on this question : for here are no words to exclude the husband’s rights. In the last case cited, Bland v Dawes, 50 L. J. Ch. 252, the dovise was to a woman who was married, and was ‘ for her sole use and disposal.’ Up to the time of sale Mrs Me Gregor had, so far as appears, made no appointment; the £ll4, the proceeds of rents prior to the sale therefore belonged to the

husband. It would, no doubt, have been competent for the wife to appoint the estate or the proceeds by deed to her separate use. What took place was, so far as appears, a joint authority from the Jiusband and wifo, to the mortgagees to Bell, and a transmission of the proceeds to her, and then a loan by her, to her husband. This was done either under the belief that the wife had a separate estate in these moneys and was therefore compe'ent to contract a loan to her husband, or the husband and wife agreed that the money, tho accrued rents and proceeds of sale, were to be thenceforth deemed the wife’s separate estate, that is, constituting himself a trustee for her of the amount as her separate estate, giving up all right ho might have in the fund. . The evidence justifies this inference, and it seems to mo that in equity the money became the wife a separate estate from the time of this arrangement. Even if it had been wholly tho busband’s own money be could have made a settlement which would have been valid in the event of his bankruptcy not happening for three years. As to the bankrupt s own interest in the money, it accrued to him after tho marriage in right of his wife, and consequently a settlement would not be invalidated by section 76 of the Bankruptcy Act. It is competent to a husband to make a gift during coverture to hia wife and to constitute himself'trustee of such a gift, and this may be either expressly done or arise by implication ; sec Jarman on Wills, p. 39 note (b), and cases there cited : In re Whitehead 54 L. J. 2. B 241, where it was held that such a gift, even after marriage, if satisfactorily proved, is valid, as against the husband’s assignee in bankruptcy ; see also, Whitaker v Whitaker, 51 L. J. Oh. 737 : L. It. 21 Ch. D. 657. The decision of Hall v. C in In reßreton’s Estate, 17 C.D. 416, was not cited in In re Whitehead. But as in New Zealand a husband can convey real and parsonal estate direct to his wile the principle of that case does not apply hero, even if in England a transfer to a third person is necessary There was no such transfer in In re Whitehead, or of tho piano in Whitaker v Whitaker. Moreover, as in this case the moneys were the proceeds of the devise to the wife, she had an interest of her own in these proceeds, and that the consideration for, the gift was not voluntary • on the husband’s part, he says if you agree to lend me these moneys, comprised partly of yours and partly mine, I will make you a gift of all so far as*l can, and I will be a trustee for your separate use of all. She may, therefore, be said to have made’an imperfect execution of the power by entering into this arrangement. If the bankruptcy had not occurred and she had been desirous of disregarding the arrangement with her husband as to the lease, she could have been compelled to abide by it; Lugden on Powers,_ed. Sp. 536. The provisions of sections 5 of ‘ The Married Women’s Property Act, 1584,’ is I think clearly not retrospective, but intended only as a conditicn attached to the new rules of property. 1 think, therefore, that Mrs McGregor’s appeal must be allowed as to the whole amount of the loan, and that her proof must be admitted. I allow no costs as against the Assignee under [the oircumstances of the case : the omission to carry out the transaction in a formal manner has prevented the existence of proper evidence of tho nature of the transaction.

IN BANCO. Thursday, August 2. (Before their Honors the Chief Justice and Mr Justice Richmond.) - BATLEY (appellant) V. CULLEN (RESPONDENT. One McAlpine asked the appellant Batley to purchase some spirits for him. Bailey 3ent a horse and man toMcDonald, a publican, 40 miles distant. The spirits were purchased on credit in McAlpine’s name, and were delivered by the appellant, who then received the money and sent it to McDonald. Batley received no profit except 4s 6d for carriage. He waß convicted of selling spirits without a license. Against this conviction he appealed. Mr Chapman, for the appellant : Batley was a mere agent of McAlpine to purchase the spirits. He did not sell the spirits ; the sale was by McDonald at his licensed house. McAlpine was charged in the publican’s books, and could not. have been sued by him. Batley could not, Stallard v Marks, 3 A.B.D. 412 ; Stnchberg v Spencer, 55, L J. M.C. 141; Seager v White, 51, L.T. 261. Mr Bell for the respondent : The transaction was really a sale by Batloy. The method adopted was a mere device. Batley was a coadjutor of the publican to evade the Licensing Act, 1881. His Honour the Chief Justice : I think the magistrate intends to hud that tho evidence he sets out states the facts : That, accepting as truthful this evidence, he concludes that there was a sale by the publican to Batley, and by Batley to McAlpine. In my opinion the evidence does not show that. The magistrate does not find as a fact that the transaction waa a sham. Accepting the evidence ns correctly showing the transaction, I think the carrier was merely an agent for McAlpine. Mr Justice Richmond : T am of the same opinion. The evidence shows that McDonald sold aud delivered spirits at his own place to McAlpine. Batley was not an agent for the publican, but for McAlpine. Appeal allowed. HARDY Y. WESTRUPP. This was a motion to reform a deed, on the ground of mistake. Mr Ball appeared for the plaintiff ; Mr Brandon for the trustees of tho deed sought to be reformed. Mr Chapman, for an annuitant, consented to a decree, provided the annuity was nob interfered with. A decree was made that the deed be reformed in certain particulars, and declared the interests under the deed as reformed. MEREDITH V. WHAIIEAMA ROAD BOARD. The plaintiff’s Crown grant contained the usual r- servation of the right to make a r >d over the land. A road line was taken i y » warrant of the Governor. No proceedings under the Public Works Act being taken, the plaintiff - contended

that the road was not properly taken. Mr Brandon, for tho plaintiff, argued that the road was not properly taken. The only way for the Governor to take land is under the provisions of the Public Works Act. Mr Bell, for the defendant : There is power under the Crown Grants Act to take land without going to the Public Works Act. When the Governor issues the grant he could lay down the road ; and section -44 shows that the Governor can select roads after the grant is issued. The Public Works Act, section 72, bas a reason ; without that tho Crown only could take roads. Under that Act Road Boards could.take roads. Tho object of the section is to provide that they shall not pay compensation. Ho was stopped by the Court. Mr Brandon in reply. His Honour the Chief Justice : It seems to me that his power could be exercised quite independently of the Public Works Act. The Crown Grants Act gives power to the Governor to do within five years an act necessary for completing the Crown Grant. It does not -in so many words define tho person to give the legal authority for laying down the line eff road, but is clear that the Legislature? must have meant that the representatives of the Crown, the Government, should authorise. It was contended for the plaintiff that a proclamation taking the land under the Public Works Act should have been issued, and then, that before the works were commenced, fencing on both sides of the line of road should have been put up. But inasmuch as this land was not taken under the Public Works Act, the plaintiff has no cause of action. The land ceased to bo his on the survey beiogmade, and the road lino laid off, and there was, therefore, no trespass. Hie Public Works Act does not apply. Section 72 of that Act certainly does mention land taken for a road where a right of road has been reserved, but this section looks to me like a declaration inserted out of caution only to exclude tho right to compensation. This is shown by reserves being mentioned also. That section alone certainly could not enable us to say that the right the Crown has of resuming should bo made subject to such provisions as those of the Public Works Act. His Honour Mr Justice Richmond : I am of the same opinion for the same reasons. In this case land has not been taken, but a reserve has been ascertained. The Crown Grants Act, 1883, does not prescribe in so many words by whom a road line is to be laid ’ off ; but it is a matter of certain inference that it is to be laid off by the authority of the Governor. The Governor is, by the Act, empowered to make grants under seal reserving road 3 if necessary, and ho is allowed to postpone the marking out of such a reserve for five years. He is the party who must ultimately do so. There are reasons for sec 7 of the Public Works Act, without giving it the meaning contended for by the plaintiff; the reservation of a right of road might not include the right to make a railway ; a Road Board might wish to take a road across land over which a right of road had been reserved to the Crown, and in such a case the section would exclude a claim for compensation. I agree that none of the provisions of the Public Works Act apply. Judgment for defendant, with LlO 103 costs. MACKAY V. MORGAN. Appeal from a Resident Magistrate on a case stated. Mr Chapman appeared for the plaintiff below, who had been consulted, and stated that he did not know whether the other side would appear ; but as it was clear that the case was defective, the action relating to an alleged assignment of a choie in action, and the casiTnot showing whether notice had been given to the debtor, it was ordered to be remitted to the magistrate.

IN THE MATTER OF THE DECEASED PERSON’S ESTATES DUTIES ACTS AND IN THE MATTER OF THE "’ILL OF DONALD GOLLAN, LATE OF NAPIER, DECEASED. Case on appeal from an assessment of the Commissioner. Mr Chapman for the appellant. Mr Bell for the Commissioner. All the testators’ property was left to his children subject to two annuities to strangers in blood. The Commissioner assessed 10 per cent, on the final balance, deducted the allowance to children of 5 per cent, on the final balance less the value of the annuities, and added 3 per cent. on the value of the annuities, as they went to strangers in blood. Mr Chapman contended that the whole estate was left to the children, and that the annuities were simply a charge, and that therefore the duty should have been assessed at 5 per cent, on tho final balanco. Mr Bell : The Act requires that duty should be paid at the full rate on the whole amount of the final balance, and then that the Commissioner shall refund or allow to the children. The amount of the duty cannot depend on the hand through which the duty is paid. His Honour the Chief Justice : I think the duty has been properly assessed. Full duty on the whole has to be paid in the first instance, and then a refund has to be made to the children. The assessment is correct. His Honour Mr Justice Richmond : I thoroughly agree. The value of the annuities is not given to the children. 'Appeal dismissed with LlO 10s costs (the estate being a largo one).

Wednesday, August 8. (Before his Honour Chief Justice Prendergast.) RRGINA V. COOK , AND OTHERS.

Motion on behalf of the SolicitorGeneral for writ’ of certiorari re the Pitone Licensing Committee to remove into the Supreme Court the application to the Committee of Thomas Oxenham, of Pitone, for a certificate under the

Licensing Act, 1881, authorising the issue of a publican’s license to the applicant for a house to be [known as the Victoria Hotel, which certificate the Committee had granted. Ihe grounds of the motion were that the Committee had no power to grant the certificate, the house not having a front or principal entrance separate from and in addition to the entrance to the bar, not containing for public accommodation six rooms beside the rooms occupied by the family of the applicant, and not being provided with a place of convenience on the premises for the convenience of the public, nor with a sufficient and proper place of convenience for the use of the public. Messrs EL S. Fitzherbert, C. E. Bunny, and Skerrett for the Solicitor-General ; Messrs Jellicoe and Thompson for the Committee. Mr Jellicoe took a preliminary objection that the notice of motion was signed “G. P. Skerrett, per R. E. Flaws ” simply, and did not purport to be signed by a solicitor nor on behalf of the Solicitor-General. The notice of motion, however, gave notice thatMr Skerrett, of counsel for and on behalf of Her Majesty’s SolicitorGeneral, would move, &c,” and Mr Skerrett stating that the notice was in fact a notice on behalf of the SolicitorGeneral, his Honour over-ruled the objection. Mr Fitzherbert then read affidavits showing that there was only one entrance to the house in question beside the ordinary bar, and that a half-door with a shelf for serving liquor opened into this passage ; that the house contained eight rooms in all, including the bar and kitchen ; that the licensee and family occupied at least one room at the time of the application ; and that thsre was also one single-pan water-closet, and that was in the yard. Mr Fitzherbert contended that this was so obviously a want of compliance with section 38 of tho Licensing Act, 1881, as to warrant the Court interfering with the decision of the Committee. Messrs Bunny and Skerrett followed on the same side. Mr Jellicoe, for the Committee, contended that there could be no certiorari to the Committee, as it was not a court of recird. His Honor overruled this contention. Mr Jellicoe was stopped on the points, and to sufficiency of accommodation and public convenience, his Honor holding that though the Committee seemed to him to have acted improperly, he could not say that they could not legally come to the conclusion they had come to. Mr Jellicoe then contended that the entrance to the passage was a separate entrance from the entrance to the bar, and was not itself an entrance to the bar. Mr Thompson followed. Mr Fitzherbert having replied, his Honor reserved his decision.