THE COURTS.

New Zealand Mail, Issue 871, 9 November 1888, Page 21

THE COURTS.

COURT OF APPEAL. McDonald, Appellant, and Te Ara Takana and Others, Respondents. (Judgment of Williams, J.) I think the judgment of the Court below should be affirmed. There are two main questions in the case : first, had the plaintiffs immediately after McDonald purchased the right to insist that he had purchased on their behalf ; and, secondly, if they then had such a right, have they, by their subsequent conduct, deprived themselves of it ? The judgment of Mr Jqstioe, Richmond states the principal facW bo, fully that there is no need to recapjtujatje them. The evidence, however, sho,WB ciewly that Mr M.oDpnald 'was agent for the hapu, of which, the, six firantees, under the G' iown ; gr,anf, wei;e the heads, and that i>’ matters where collective action ’ necessary, ■ he represented the hapu,- doubt when ! Enerota succeeded Kq'oro, Mr McDonald ceased to act for tjiafc his agency continued iu some respects for the other grantees, and especially continued for the purpose of oarrylng into effect the, subdivision of the lanfi that had been previously agreed upon. The account furnished by Mr McDonald to the meeting, in. ISB4 (Exhibit K.), seems, indeed, f.a suggost that no definite line was dvqwo, between the business of the hapu and I that of tho individuals comprising it, as aos counts alleged to be due from individuals are oharged against tho hapu. In addition to any direct agency there is no doubt that Mr MoDonald occupied a unique and extrao;fdiuary position with respect to the ha,pin. that complete confidence was reposed in him, and that he exercised very great influonco. This appears through- ; ovv&. We evidence, and is illustrated in several ?Way a 5 as > f° r instance, the giftof Raikopu, ; the placing in his hands the £.4500, and the mode in wbiph Mr McDonald appears to ’have accounted for moneys in his hands. |The aussver, BS6.(p. 62), and the Kawa iKawa aconfint (Exhibit K, p. 96) contain, iappaiwAly, the only statement of account iccftdo. by Mjr McDouakl. That tlie ; relatiowi joi Mr McDonald with the natives were al!together different from, almost any conceivable business relations between, Europeans, may be fairly gathered from an aocount which contains an item such as the following (p. 96) ‘ Expcaded on our joint jourIneys, food, and law proceedings, and lawyers, icoach far ea » toll gates, and the will, and this :apd thp- other things, this is estimated, for vihe oau know exactly, these eight years, £Booo,’ Mr M.cDonald appeared: on behalf ofi tha Natives in the. Native Lands Gourt, iu January, 1879, and again in November, 1879, to obtain a, sub-division. No doubt he also, was interested in obtaining a subdivision in order- to validate his ; hut endeavouring to obtain at, ho wag. admittedly acting on behalf o£ the five i grantees (2.687. P- 64). i The application in each ease was opposed on behalf of Enerota, and was dismissed on the ground tli£»t tho, Cro.wn, grant could not be produced, as thp land was. under mort§H£ja (p. 76). It was i aimed Lately after the rst application was dismissed, that the I letter, to Common of tho Ififeh Jianiuary, 1879, i was written (Exhibit. C)» That letter im- ; plies what, indeed, cannot be denied, that i Mr, McDonald was agent for the mortgagors, ! otfio# th»u Epereta. The refusal to pay tho Interest, and the request to Common to take i whatever consequent proceedings might be j necessary ; in other words, to sell under the power of sale, arose directly from the dismissal of the application in the Native Landß Conrt, Enereta had defeated Mr McDonald’s cl ent3 in th Native Land Conrt, and Mr. McDonald was evidently devising another mode of attacking Enereta through, Common. I entirely agree with Mr Justice Richmond that the 'refusal of Mr McDonald to pay interest contained in tba letter foundation of all the subsequent proceedings, and was devised by MoDonnld as the first stop in a plan to get (he better of Enereta, and to oompel her to assent to the subdivision ! agreed upon iu Kooro’a lifetime. The whole • tenor of the letter shows that the idea of not continuing to pay the interest emanated from Mr McDonald. It was an essential

part of his tactics that the interest should not be paid, as the letter shows clearly enough. I do not pretend to reconcile his statement in answer to question 692, p. 65, that he never paid any money for rent during 1879 without earnestly and eagerly praying the payee to leave the money to pay the interest, with the documentary evidence which so clearly shows that he did not want the interest paid at all. If Mr McDonald had wanted to apply the rent u o pay the interest, there would have been no difficulty in applying it. His lease was executed in June, 187 S, three months after Enereta was appointed Kooro’s successor. Immediately after her appointment she declared she would have nothing to do with the mortgages, and would not authorise the payment of interest (2.687). The lease, therefore, was executed with a knowledge of that refusal. Now, the lease contains a proviso that the lessee shall pay the rents to the mortgagee, if default is made in the payment of interest, and the mortgagee shall, in writing, require him to pay them. If the Natives had declined to allow the rents to be applied for interest, nothing would have been easier, if Mr McDonald had really wished the interest to be paid, than to have arranged with Com- | mon to pay it in terms of the lease. Obviously he made no such arrangement because he did not want the interest paid. I do not suggest for a moment that Mr McDonald, in refusing to pay the interest was concocting a scheme to deprive the five grantees of their land, but I think he adopted that course in the interest of his clients, and in his own interest as lessee, as an indirect way of obtaining what he had failed to obtain for them and for himself in the Native Land Court. In other words, that in writing to Common declining to pay the interest, and practically requesting him to sell, he was acting on behalf of the five grantees, against Enereta. As the application to the Native Land Court was in their common interest against Enereta, so the subsequent proceedings taken by Mr McDonald for attaining substantially the same result in another way must be taken to have been in their common interest. The Natives would certainly have a right to suppose that the 'subsequent steps which were taken by Mr McDonald, for the purpose of bringing Enereta to book, were taken in their common interest, unless he had first placed them at arm’s length, and had distinctly warned them that he intended, tbenoeforward to act for them no and to protect his own interests only, To. suppose that Mr McDonald intended without warning to throw tho Natives overboard au q to look after fiimself withom to them, woffid place his ccvado*'*. j n a much more ivufavcurable light 4J*' an 'there is any necessity for.

The main question } g waa jj le non-payment of the interest 'manned by Mr McDonald, u t *- 30 planned the letter of the I “to dam > ar y i 1579, proves to my mind con--olUSlv' o |y. q’he subsequent transfer of the ®\'ortgage to Mr McDonald, in order to avoid the sale by Common, which the non-payment of interest had enabled Common to give notice of, was the next step. No doubt it was desirable for Mr McDonald to take it, in order to protect himself, but it had become desirable only because the non-payment of interest planned by Mr McDonald had rendered, aa he had intended it should, the power of sale exercisable. If Mr McDonald chose to take a transfer of the mortgage to himself, then, looking at the position which he held, aud to his previous, action, he mnst in my opinion be considered as having i taken tho transfer in the interest of his clients, to protect them and himself against Enereta. This is the view the other granteeb would naturally take. The .Nativo Land Court had dismissed the applications for a subdivision, because no Crown grant had been produced, as being in the possession of the mortgagee (p, 76). Mr McDonald (2.701, p. 65) states that after he had procured the transfer of mortgage to himself he told the natives that he had got the Crown grant and the mortgage, and that if they would make some arrangements by which the interest would be paid and his lease validated, he would hold the mortgage till they could make arrangements for the repayment of the prinoipal. He admits also (2.750, p. 70) that he might have said that he had prevented Buller and Nelly gettingthemortgage. The Natives would thus be led to suppose that the difficulty which caused tho dismissal of the application had been got over, that a victory over Enereta had been gained, and that their interests were now safe. Nor after lie had obtained th© transfer could he under these circumstances take advantage as mortgagee of the non-payment of interest which he himself had devised. As a matter of fact, however, at the time of the transfer of mortgage, Mr McDonald was indebted for rent to a greater amount than the interest due. The transfer of mortgage was executed on the 17th January, 18S0. Half a year’s interest on the mortgage to August, 1879, £llO Bs, was then due. The rent to the end of 1878 had been applied to paying the interest to February, 1879, (Interr. 5 p. 24.) On the 7th December, 1579, a year’s rent, £252, was due by Mr McDonald. Of that he had paid to the lessees £65 between February, 1879, and the date of the transfer (Interr. 5 p. 24.2780 p. 70.) There was, therefore, £177 on the 17th January, due by Mr McDonald for rent as against £llO 8s then due for interest on the mortgage. It is true that Mr McDonald states that the lessees were indebted to him individually on open accounts, and that ha says he credited the difference between the amounts he paid on account of rent and what was owing for rent to the grantees against the amount of their indebtedness to him (Interr. 5.) The rent, however, is reserved jointly, and if sued for, would have had to be sued for by a lthe lessees. I see no power to, sot off individual debts against the joint liability. Apart from the technical reason it; is clear throughout that the rent was treated as a separate matter. Mr McDonald’s own contention is that he urged the natives to refrain from drawing the rent, in order that it might be available to pay interest. Mr McDonald, therefore, at the time ho obtained the transfer of mortgage actually owed an amount of rent exceeding by nearly £7O tho amount of interest overdue. Immediately on the transfer of mortgageyMr McDonald procured an authority from Enereta and her husband, to collect the rents of the whole of tho block. Later on, he objvoted. that this was useless, owing to

the plural being used instead af the dual. This authority, however, he received in January, and did not raise any objection to till April, and Messrs Buller and Co.'s letter to Messrs Brandon (Exhibit 14) shows that they prepared the form contemplating that she was to join in an authority, in other words that the authority would probably be signed by the other Native owners for whom Mr McDonald acted. There is no reason to suppose the other owners wuuld have refused to concur in this authority if Mr McDonald had asked them, and he admits that he never did ask them, although (2783,784 785 p. 70) he had made them aware of the correspondence between Mr Lewis and Mr Brandon. The total amounts of rents of the block including Mr McDonald’s own rent, was £560; the annual interest on the mortgage was £220 16s, reducible on punctual payment to £2OO. The half year’s interest of £IOO was coming due at the end of January and the beginning of February, and as I have shown after providing for the previous half year's interest one of the rent there was still some £77 of rent unpaid which could be applied toward meeting the interest just falling dne. In addition to this, there was the document signed by Enereta, which extendad to the rents of the whole block. There can, I think, be no doubt that Mr McDonald had in his hands ample power to keep down the interest on the mortgage if he had chosen to do so. The principal of the mortgage for £960 wae not due till the 30th July, 1880, and of themortgage for £lo4ountil the 9th August, 18S3, so that default of interest waa the onlyground for calling np the money. It is evident from the correspondonce between Mesrs Brandon and Messrs Buller and Co., that Mr McDonald was continuing to act in the same capacity as before. If he had not been instructing Messrs Brandon on behalf of the five grantees as well as of himself that firm could hardly have entered into th© agreements contained in exhibits 12 and \'3, p. 114. The expression ‘all parties.' in those documents must necessarily ’ t nclnde the five grantees whose interests are to be dealt with. The letter also ofi the 17th of April (Exhibit 16) from M r McDonald to Messrs Brandon shows alq 0 that he then con. sidered himself to be acting in the interests of the mortgagors than Enereta in instructing Measrq Brandon to advertise the property for p a i e . It is obvious withsuoh complete pow'jj. j n his own hands by the terms of his oase and by the memorandum he had a ®fiepted from Enereta, to appropriate rents of the annual value of £560 to meet £2OO of interest,that to set np default of payment of interest, or being unable to secure payment of interest as a reason for selling, was a mere pretext. Now it is pretty clear that Mr McDonald’s clients and probably Mr McDonald himself, wereafraidof going before the Native Land Court again, (2 707, p. 66) lest the Court should override the prior subdivision and Enerata get a full share. The only completely safe way therefore, of getting rid of Enerata was by selling the property over her head, and by Mr McDonald buying. In consequence of this the property was sold, and sold through the Registrar of the Supreme Court, so that Mr McDonald might be enabled to buy, which he could not of course have done if he had sold himself. It seems to me that all through the piece, from the cessation of payment of interest in 1579, to the sale and purchase in 1860, Mr McDonald’s entire action was in the common interest of the five grantees, and of himself for the purpose of putting pressure on Enereta to compel her to assent to the prior subdivision, and to validate Mr y cDonald’s lease, and in the event of hen non-compliance to get rid of her altogether. I am, therefore, satisfied that the plaintiffs, immediately after Mr McDonald’s purchase, would have been entitled to the benefit of it. With respect to the second point, I think, looking at the peculiar circumstances of the case, that the right of the five grantees has not been lost, and I have nothing to add to tho reasons for this conclusion, which have been given by Mr Justice Richmond in the Court below, and by his Honour in this Court. [The judgment Te Ara Takana and Others v, McDonald will appear next week.]

Monday, November 5. (Before the Chief Justice, Mr Justice Richmond, Mr Justice Gillies, and Mr Justice Ward.) ROCHE V. SOLICITOR-GENERAL. This was an appeal from a decision, of Mr Justice Williams granting a writ of certiorari, on the motion of the SolicitorGeneral, to the Dunedin Licensing Committee to remove into the Supreme Court the proceedings in connection with a. certificate issued to Margaret Roche foea license for the Gridiron Hotel, Dunedin,, on the ground that the Committee had no jurisdiction to issue the certificate, Margaret Roche being a married woman, living with her husband. Sir Robert Stout, for the appellant, contended that under the Supreme Court Rules 455, 456, the Court had no power to deal with the matter, the proceeding not being a civil action ; that if it was a civil action, after judgment the-l'e could be no certiorari ; that if the Court thought the proceeding analogous., to a criminal proceeding certiorari was, taken away by section 199. of theLicensing Act, 1881; that the proceeding ■yas not judicial but ministerial only, and-, that a licensing Committee could not b<* interfered with by the Courts except by mandamus to compel a performance off duties ; that no objection was made before: the Committee ; that the Committee had jurisdiction to. commence the inquiry; that the provisions of the Licensing Act--1881, which seemed against the right of a married woman to hold a license, had been impliedly repealed by the Married Women’s Property Act, 1884 ; and that as this license had before the commencement of the proceedings transferred to the husband, the issue of the writ now would, not avail. Mr Adams, for the SolicitorGeneral, contended that certiorari was a right at common law not depending on the rules, and that the Court would adopt the procedure under rule 5G7 ; that if the certificate were quashed the license would fall with it whether transferred or not ; that though no objection was made therq

■was a duty on the Committeo to make inquiry for itself. At 4.30 p.m. the Court adjourned to next day.

Tuesday, November 6th.

(Before Chief Justice Prendergast and Richmond, Gillies, and Ward, J.J.) IN KE THE LICENSING ACTS AND A CERTIFICATE TO MARGARET ROCHE.

Mr Adams for the Solicitor-General continued : The provisions of section 50 of the Licensing Act, 1881, are imperative as to the form of application ; McLeod v. Hay,,,5, N.Z. L.R., S.C., 481. The addition is not stated here. It is immaterial whether the non-disclosure is intentional or not, if the concealment is of something material and misleading ; Kerr on Frauds, 7th, E.D., 63 ; Bridges v. Branford, 12, Simons, 38, A. (Gillies, J. : There is no blank left for the addition in the forms in the 3rd schedule.) That is a printer’s arrangement, and cannot control the section. (Prendergast, C. J. : The main part of the section 56 is in the affirmative. You say they are prohibitory.) If the application is not in the prescribed form and fails to disclose a material fact, in consequence that amounts to a fraud, misleading the Committee. [Prendergast,' C.J.: The case of Bridges v. Branford was a case of misrepresentation between vendor and purchaser, not of obtaining a judgment by fraud.] Next, neither at common law nor under the recent statutes could or can a married woman hold a license. The legal existence of the woman is merged by marriage in that of her husband. Bright on Husband and Wife, 1; Lush on Husband and Wife, published subsequently to the Married Women’s Property Act. [Prendergast, C.J.: May not any person appoint a married woman his agent ?] Yes, but she could not act without the consent of her husband. She could perform no legal act without the consent of her husband, A married woman cannot dispose of her personal liberty without the consent of her husband. In re Tottenham, 8 Dowe, 638. Public policy on this matter has not changed. A married woman cannot choose her own domicile, Hargreaves y. , 8 App. Cas. 43 ; Dolphin v. Robins, 29 L.P. Prac. 11- A deed or a will executed by a massyed woman during coverture is void. Bright’s Husband and Wife, Vol. 11., 38, 39. She cannot enter into a valid contract of service. Stone’s Justices Manual, 353, and, cases there cited. If holding a license is in any sense a contract, which I contend it is not, it is a contract analogous to that of service. The Married Women’s Property Acts do not effect married women, but only their separate property. They only make the rule of equity as to separate estate .the rule of equity with some extensions. In subjection 1 of section 3 of the Married Women’s Property Act, 1884, and throughout the Act, the words used are as if she were a feme sole,” showing it was not ■ intended to completely enfranchise the woman as if she were discovert. [Prendergast, C.J. : What substantial objection on grounds of public policy can there now be to a married woman holding a license ?] She is under the dominion of her husband. [Prendergast, C.J. : That doctrine applies in case of felonies under certain circumstances.] The doctrine of coercion applies in misdemeanours also. Regina y. Toffey, 12 Cox C.C., 49 ; Stephens’ Digest of the Criminal Law, 53. [Sir Robert Stout : In Seager v. White, 51 L.T., 261, it was decided that a married woman holding a license could be punished under the licensing laws, and the doctrine of coercion was held not to apply.] It has been decided in Victoria subsequently to the Married Women’s Property Act in force there that a married woman cannot hold a publican’s license. Regina v. Nicholson, 10 Vic. &,R. (L)260. [Prendergast, C.J.: In England the only difficulty was that a married woman bpuld not be the occupant of premises. Sinus the Married Women’s Property Acts that difficulty-has disappeared.] It has been held in England after the Act of 1870 that a married woman had no vote under a statute giving the vote to “ every person ” holding certain property, though an unmarried woman might, Queen v. Harold, L.R. 7 Q.B. 361 ; Maxwell on statutes, 76. The cases of Butler v. Butler, 14 Q.B.D. 835, and Wennhak v. Morgan 57 L.G.A.B. 241, decide that the common law rule as to the unity of person of a husband and wife is not destroyed by file Married Women’s Property Acts. See also in re Jupp, 57 L.J. Ch. 776. The husband’s liability for Ms wife’s acts is not interfered with : Leroka v. Kattenburg, 17 Q-B.D. 177. A married woman has not even now a personal liability on her contract; Palliser v. Gumey, 56 L, J.Q.B. 546. A judgment against a married woman since the Married Women’s Property Acts is not against her personally : Scott v. Moriey, 57 L.J. Q.B. 44, where the form of judgment was settled ; in re Gardiner ex parte Coulsou, L.R. 20 Q.B.D. 249. The rule of the unity of person still applies, and applies to this case. A license is not properly within the meaning of the Married Women’s Property Act 1884, subs 1 of section 3 or section 4 : sub is a mere privilege or monopoly of right to exercise a quasi public function, not by its nature assignable ; ex parte Britnor in re Royle, 25 W.R. 560. See the definitions of “ property ” Austin’s Jurisprudence, 817 ; Williams’ Personal Property, 4, 7 ; Sweet’s Land Dictionary, 650, and title “Personal Property.” It must be something capable of being acquired, held, and disposed of in ordinary course. The reasoning in Callendar v. Allan, N.Z. L.R., is sound, and Hazell V. Middleton, was there rightly inter-

preted. The licensee has not shown herself to havo separate property, and so to be under the provisions of the Married Women’s Property Act, 1884. The lease vested in her in 1881; on her marriage in 1882 it became her husband’s property, subject to divestment if she survived him, There was a renewal after marriage, but she could only hold on terms on which she held the original leases. [Richmond, J. : Why so ! The term had expired, and there was no covenant for renewal.] The lease was a contract; she had no property and could not enter into it. [Richmond, J. : That] is an alarming contention. She would get an estate at once, and that would be her separate property. I do not think that point is arguable.] Sir Robert Stout in reply : On the point of holding property there i 3 the case of Strachanv. Murray and Brew, 5N.Z.L.R., S.C. 55. There is sufficient on the affidavits to show that this woman took as her separate property. As to the fraud in the application, the werds are not occupation and addition, blit addition simply ; and what is mean*- is occupation and not status. It appears from the application for a renewal that she was an hotelkeeper, and the owner of the leasehold. In Beasant v. Wood, 12 Ch. D., 620, Jessel M.R., laid down anew rule of law as to public policy on account of a change in public opinion, and in Wenntak v. Morgan, already cited, Manisty, J. approves that. Rules of public policy are not fixed, but are subject to change as opinion changes ; Eversly on the Domestic Relations, 245 ; Lush on Husband and Wife. In New Zealand Licensing Benches have always considered it proper to grant licenses to married women, but against public policy to issue them to unmarried women. If the doctrine of unity of person had been applicable it would have prevented the decision in Hazell v. Middleton. That ease was decided in 1881, and since then the Act of 1882 has made a far greater difference in the relations between husband and wife. Reg. v. Nicholson is no authority against me. The case was not argued on this point in Callender v. Allan. It was not, pointed out to Williams, J., that the Married Women’s Property Act in force in Victoria is only the English Act of 1870. The reasons given in Higinbothain, J;’s dissenting judgment in Reg. v. Nicholson ought ,to weigh with the Court. Seager v. White and Hazell v. Middleton govern this case. There is nothing which a married woman cannot do in the position of a licensee. Mandamus will issue where the Act is ministerial merely ; certiorari. only when it is judicial. A licensing committee has not to judge, but to exe.rpise dis-, cretion. They are purely an admin istra-; tive body to cany out the wishes of thej electors. Though it is said (Hamilton v. j Fraser) that a committee proceeds judi- i dally, they may proceed as a court, but their decision is a ministerial, not a judicial act, especially the granting of a renewal. Mr Adams mentioned the case of 4 N.Z. L.R., S.C. 427. The Court reserved its decision, and adjourned to 1jQ.30 next morning. Wednesday, November 7. SELWYN COUNTY COUNCIL (APPELLANT) AND SHE ATE (RESPONDENT). (Before their Honours Justices Richmond, Gillies and Williams.) This was an appeal from a decision of Ward, J., refusing a nonsuit on a motion pursuant to leave reserved, in an action by the respondent against the appellant, for damages for wrongfully obstructing and diverting the water of the Hororata River, which flowed past and over the land of the respondent, by means of the Haldon water-race, and also claiming an injunction. The ground on which the nonsuit was refused was that the Council in making the water-race had not complied, with the provisions of section 33 of the Counties Act Amendment Act, 1883, and that water-races ought not to be made except in the way there prescribed. The ware?’-race was constructed in ISB4. There was no proclamation under section 32 of the Counties Act Amendment Act, 1883, declaring the kind over which the race was taken to be a water-race, or the Hororata River to be stream from which water might be taken, unij] December, 1886 ; and the proclamation was jnot “ publicly notified” within the meaning of the Act until after the commencement of the action, Mr Joynt, fop the appellant, contended that 'the Council had power under the .Counties Act in force before the Amending Act, of 1883, to. construct »the race and riske water, and that the Act of 1883 provided a procedure which the Council might, but was not bound to follow. Mr W- Izard, for the respondent, contended that the pro-i visions of the Act of 1883 were mandatory, and that as they had not been compiled with, the Council had no authority to take Lho water. i

IN BANCO. Wednesday, November 7. (Before his Honour the Chief Justice,) CHURTON- V. M‘CAUL. Mr Bell and Mr Tripp moved for leave to issue writs of attachment to commit to prison the defendant McCaul, and Mr Charles Cook, of Wanganui, solicitor. Two contempts were alleged agdnst McCaul. The first wa3 failing to attend before the Registrar at an adjourned examination. The defendant McCaul was required by a subpoena to attend before the Registrar on the 10th October to be examined on accounts in the suit of Churton v. McColl. The evidence was partly taken, and the examination adjourned till next day. The defendant and liis counsel requested that

it should be adjourned till after the Wanganui civil sittings, but on the objection of Mr Bell, counsel for the Attorney-General, the longer adjournment was refused. At the adjourned sitting neither Mr McCaul nor Mr Cook attended. In the affidavits filed in answer to those filed on behalf of the Attorney - General, Mr Cook and Mr McCaul said it would havo been highly inconvenient to attend on the 11th. The other contempt was the paying away of moneys of “ Cliurton’s estate ” after the service of an injunction restraining such payment. It appeared that at the date of the injunction there was nearly L3OO to the credit of “ Ohurton’s estate,” and at the time of the motion there was only L2, so that virtually the whole amount had been paid away. Of the amount paid away LBS appeared to have been paid to Mr Cook. The only justification alleged for the payment was that the payments were either made or promised before the service of the injunction. Mr Bell and Mr Tripp in support of the motion wore stopped by his Honour. Mr Morrah for Messrs McCaul and Cook. His Honour the Chief Justice : What is the answer. That the payments were made or promised before the service of the injunction. That is no answer at all. (Mr Morrah :We admit irregularities.) (The Chief Justice : These are not irregularities ; this is dealing with the fund in flagrant disregard of the order, and even after service. (Mr Morrah : We submit to the Court and desire leniency ; we are willing to make a refund of such sum as may be found due to the. estate.) (The Chief Justice : That is not enough ; the money ought not to have been paid. There must be restitution before the contempt can be considered purged. After some slight discussion it was ordered as follows :—“ Order by cousent. Writ to issue ; to be in the office till Tuesday next, at 12 noon.” His Honour : In the case of McCaul it will not be issued if, before 12 on Tuesday, the sum of L 249 12s 3d, less the sum paid by Mr Cook, be paid to Mr Notman, the receiver, in the suit of Churton v. McCaul, and the costs L2O and fees out of pocket. In- the case of Mr Cook, the writ will not be issued if, before 12 o’clock noon on Tuesday, he pays to Mr Notman, the receiver, the sum of LBS, and costs Ll2 12s and fees out of pocket.