INQUIRERS' CORNER

NZ Truth, Issue 890, 16 December 1922, Page 16

INQUIRERS' CORNER

(Conducted, by " INTERPRETER.*')

Answers will be published as early .as possible after receipt of ., questions. All '. letters to be addressed, "Interpreter," Co. "Truth," Box 674, G.P.0., "Wellington. While taking no responsibility for any answer given m these columns, every endeavor will be made to see that these are absolutely correct. Answers to legal queries must be' accepted merely as a guide as to whether or not lt is worth while going to the expense ot placing matters inquired about m the hands of a solicitor for farther action. No replies can be made by post.

Marriage and Divorce. Q.: Husband obtains divorqe from wife, with custody of child (girl aged 4). In the event of hia death can husband- appoint guardian for child, and, if so, would the mother have any chance, of upsetting such appointment ?— "Anxious." : A.: Section 3 of the Infants Act provides that on the death .of the father of an infant the mother shall be the guardian of such infant either, alone (where no guardian has beam appointed by the father) or jointly with any guardian appointed by the father. Section 6 also gives power to the Court to make orders as to custody on the application of the mother. Section 46 of the Divorce Act also provides that upon application by petition the Court may make from time to time orders regarding the custody, maintenance and education of the children. The mother m the case fiven should, therefore, have a good nance of securing the custody of -the child if the Court decided that it would be m the child's interests to be under her mother's care. The Court would have discretion presumably to grant, her sole custody and dispense With any guardian appointed by i.be husband. Q.: Wife broke up home five years ago; husband f h'as maintained her ever since. Twice during that' time he has asked her. to return to him. Can he obtain divorce?— " Quits." i A.: Yes; on ground of desertion for three years. Q.: ; Has the mother of an illegitimate child born m England after the alleged father has arrived. in New Zealand any legal claim on alleged father? (2) How could proof of birth, date, and. name of the illegitimate be ascertained? (3) Would inquiries re same be treated with secrecy iiyEngland? — "Thumpy." A * (1) Yes; €. claim for maintenance on proof ' of paternity; (2) From Re-gistrar-General of Births, Deaths and Marriages, Somerset House. London. The child would be registered In its mother's name. Fee for copy of certificate, 2/6; (2) Yes. Q.: Husband deserted wife three years ago, wife receiving no money for that period. Can wife get divorce by applying for and would she. have to appear at Court and upon whom would the expenses fall?— " Homeless." . A : Yes; desertion for 3 years being ground. Would need to appear to give evidence m support of petition. Costs would fall on husband. • Q *. Wife about to leave husband for indescribable cruelty while pregnant. Has she sufficient grounds for divorce? If so, can she claim guardianship of the child If she has paid her own confinement expenses? — "M.K." A.: Cruelty alone is not a ground for divorce. There must be drunkenness as well. However, cruelty would entitle wife to a separation order under the Destitute Persons Act or to a judicial separation under the Divorce Act. The question* of the custody of the child would be decided by the Court m the best interests of the child, so that the blameless parent would probably have it

Q.: Petitioner m undefended divorce action, hearing lasting SO minutes,

charged costs £100 6s Bd. Ia the charge excessive ?f— "My Ffee." A.: It is impossible to pass an opinion on the amount charged you without knowing the extent of the preliminary work. The total, however, seems rather high. You can take steps to tax, the costs before a Magistrate. Q.: Can a girl get married when she is 18 years of age without her parents' consent?— "l* C. J." ■ A.: No; she must have her fathers consent if he is alive. If he lfl dead a guardian must consent. If /there is no guardian then the mother's consent ia necessary. If such consent is unreasonably withheld then the minor may apply to the Supreme Court for its consent. : Q.: Wife is granted a, separation and maintenance order against her husband. He kept up payments for 12 months, then stopped. Wife has riot seen or heard of him since. Could she, after expiration of three years from the date of separation, succeed m a petition for divorce on . the grounds of the said separation? If so, what should costs be?— " Anxious." A.: Yes; costs up to £15 15s.

Q.: (1) If decree of Supreme Court for divorce is not made absolute at expiration of three months, how long does that decree last? (2) Can wife claim against husband for maintenance (an order ;for which had been made before decree) because the decree has not. been made absolute? The decree was v made against wife for adultery. — -"Anxious." ■

' A.: (i) Until such time as petitioner or respondent applies to make same absolute. (2) Until the decree is made absolute the parties 'still retain the status of man and wife, so the husband continues liable for maintenance. The matter of maintenance is usually disposed of at the , hearing of the wife's petition for alimony.

Q.: Wife deserted husband two years ago; husband wants to be divorced but cannot afford to. pay solicitor or Supreme Court costs. Can he obtain his divorce, and will he be given custody of his child? — "P.1..." A.: The divorce rules provide that divorce proceedings can be taken m forma pauperis, i.e., by a person not worth more ■ thojn £25 after allowing for debts and wearing apparel. However, you would require a solicitor to take the preliminary steps, and so would have to pay something for legal costs. Under the circumstances custody of the children would be given to the deserted husband If he could maintain and educate them.-

Q.: Young woman (23). who has obtained a divorce from her husband, is marrying again shortly, and< is desirous to know if it is permissable for her to wear the brldar veil. Sho did not do so on the occasion of her previous marriage. — "Happy." A.: By all means, if she has obtained the decree absolute.

Housing, Rent, Rates,

Q.: (1) Wife has a house on the Government loan system and has husband 71 years old. She had a few pounds ln the P.O. Bank. Can the husband apply for the pension, and what amount would he be likely to get?

(2)' If wife makes a will could those who she makes the will m favor of get what is left m will, or would the will have to go through the Court? — "Constant .Reader."

A.: (1) The husband can apply for the pension independently of the wife, provided he has no accumulated property ( £ 300) or an income of £78 per year. He can get the full amount, namely, £39 per. year. (2) The property of the wife will go as she directs by her will, which will require to be proved m the Supreme Court. Q.: Three months ago I bought a section for the purpose of erecting a dwelling. Paid deposit called for, duty stamp, agreement, expenses, etc., to solicitor conducting the transaction. Agreement was to pay an instalment off the principal also the interest on the balance at 6 per cent., both to be paid together on the same date. Through sickness not able to come up to the scratch m full payment. Solicitor then asked if I could pay some off it. I said I could let him have £ 3 on account and he acceptea the amount, and told me to bring the balance along as soon as I could spare it. Meanwhile the original owner went on to the property, made alteration .<• to the fence to which I had contributed half of the money and labor, being an adjoining boundary to other property owned by the mortgagee; also erected an up-to-date fence fronting on to the street arid altered other little improvements which I had made to the property without consulting the solicitor or myself. What action should I take against the 'mortgagee? Could I sue for damages and what amount? — "Fair Play." A.: Your best plan would be to bring an action for specific performance ,of ■ the agreement. You failed to carry out the original agreement, but you could prove that it. had been varied by the acceptance of a smaller payment than was due. You presumably carried out the other terms of the agreement. Suggest that you place the whole of the facts before a solicitor before taking upon, yourself the costs of an action. Without perusing the agreement and without knowing all the facts a definite opinion isimposi sible. • . . .-^. Wages, Pensions. ■ Q.: Person serves a term of imprisonment before the Old Age Pensions scheme came into operation, but has since been of good character. Is said person, who is now G7 years of age, entitled to the pension? — "Wager." A.: Yes; if he hus not served four , months' imprisonment or more within' the 12 years immediately preceding the date he established his claim to the pension. * Legal. Q.: Is,-it possible to execute a distress warrant on the wife's property where a judgment has been obtained against husband? ' The husband had no personal property, but the wife has the furniture m her own name. No judgment has been obtained against wife, neither has" wife ''received official notice re judgment given against her. A.: If your wife was not served with a suihmons, and if judgment was not obtained against her separate estate, no distress can be levied against her furniture. You must prove conclu-. sivoly that the furniture is hers. If you can do thi-s, then the distress is illegal. Q.: In regard to disputed father's will trustee says he can do nothing as there was no stamp on the deed, which was under £100. Did my share require a stamp or should the trustee have put a stamp on It when he drew up the deed of gift?, — "Anxious." A.: No, unless you could sustain a claim under the Frfmily Protection Act. .This would depend upon (a)»the amount of the estate; (b) your ability to provide for yourself. Q.: What is tlie death duty on one to five thousand? — "C.T. A. Death duty comprises (1) estate duty; (2) succession duty. Estate duty £3000 to £4000 is £3 per centum, £4000 to £6000 ls £4 per centum. The succession duty varies according to the relationship of the successor from 1 per cent, to 10 per cent. At the most, therefore, succession duty could not exceed £500 for £5000. Q.: Person engaged and employed on a weekly salary; through sickness is obliged to stay away from work for three days. Has his employer right to deduct half his week's salary? — "Earnest." A.: The general law is that a servant is entitled to his wages or salary during absence through temporary illness, provided that the employer has not given notice and provided that the servant ls ready ,and willing to j carry out his duties save for the m- I capacity produced by tho Illness. In this case no deduction should havo been made. Q.: Living m blind road which , is outlet of eight feet roadway to -main road, which has been dedicated to County Council.- Green hedge growing over this roadway which belongs to a neighbour who cut half the hedge six months ago. It has now overgrown the roadway and has become a nuisance to me and others. Havo asked this man to cut the rest of hedge but refuses to do so, and says that he will summon me If I cut same. What would.be the best thing to do?— "W. 8." A.: Report the matter to the County Council and ask. thorn to take, tho necessary steps t& have the hedge cut I back. ! Q.: Neighbor opens gate and lets his cows on to road uncontrolled while grazing. Cows loiter m front of inquirer's paddock where ho has young i bull grazing and disquleten bull. Cows, moved on by inquirer's dog and owner I now threatens legal proceedings. What is the best course to adopt? — "D.H." A.: It would seem that your neighbor ls malting an unreasonable use of the road and ls probably committing a breach of the borough or county bylaws. You had better report the circumstances -to the ranger. If the cows push their headß through the fence they are trespassing and you can bring an action for damages. However, la it not possible to move the bull further away from the road and the fenco? You would be quite Justified ln taking reasonable steps to move the cows on yourself, but do not use the dog too much. Q.: Do fisherman's and publio rights still obtain on a section cf land where river has encroached within survey pegs and on which full rates and rent are still payable to Borough Council m which property is situated? — "Constant Reader." A.: No; tho survey pegs will still constitute tho boundary, and the owner's rights aro absolute, even if water has spread on to section. Q.: Borough of Blenheim raised Fonie £60.000 to give a water supply to the town. Owing to bungling anil other causes another loan has had to be raised to try and complete the scheme. Both loans were raised on tho promise that the rating should bo on the unimproved value of the whole of tho borough. As far as I can glean the whole of tho borough has been pledged as security for tho loan. After rating first on the unimproved valuo of property and then on tho capital value the council has decided that the latter is tho correct method. When It was found that Ibo reticulation could not lie finished those who did not got the water wore allows! to rilschnrgo th*.-lr liability by paying half rate.-*, fl) Is tt legal to rat« on the capital value after raising tho money on tho unimproved value? (-') Ih it right fo let some ratepayers off with a halfrate when the whole borough is pledged as security? Many ratepayers other than those who did not get the water have not connected up with the scheme, and these also are lot off with the half- rate, though the water passes tholr doors. — "Blenhelmitft."

A.: (1) if tho Ifiintc at tho poll provided that tho. rate tthould.be lovlod nn the unimproved value, thon hy levying It on tho oupstni vaii:n the council lias exceeded Us authority.

However,, a council generally has power to levy on either the unimproved or the capital value. (2) The council has power to allow rebates of rates, provided that the rates return sufficient to enable it to fulfil its obligations m the" matter of interest and sinking fund. The question submitted by you is a large one, and without being conversant with the constitution of the council only a general view of the matter can be given m this column. It seems fanthat those who take advantage of tht water supply should pay full rates fo: it. Q.: Enquirer is annoyed by strange dogs coming on his premises after his own dog; threw a stone at one dog, hit it m a vital part and killed it. Has the owner of dead dog got any claim on me, and ;how do y stand with the law ? — "Anxious." A.: If dog was trespassing on your premises you were justitied m scaring it away, provided that the stone was not thrown with intent to kill the dog. > Q.: Mother dies after second marriage, leaving four children, from same and will equally dividing wealth. Enquirer being only child left from first marriage, can he claim any of the ; wealth? — "Constant Reader." I A.: The property goes to those to whom it is left m the will. You would have no claim unless you could support a case under the Family Protection Act. This depends on your ability to support yourself and on the extent of the estate. Q.: Enquirer has property, the unimproved value of which is £1540, exemption £4SO, taxable amount £1060, tax £4 Ss 7d, additional super tax (20 per cent.) 17s Sd, total tax payable £ 5 6s 3d. This property is mortgaged to the extent of £1750 at 7 per cent. I also have three children under 14, for which I am told there is some exemption. What amount ol tax ought Ito pay?— D. G. Qlark. A.:. Nothing; advise Commissioner of position. The exemption for children is m respect of income tax only. Q.: (1) Owe debt to solicitor. There Ss some money due to me, to be paid through another lawyer. Can first lawyer distrain on that money for the debt owing him?' (2) Bought a piano for my two children, receipted m their name. Later, exchanged first piano (by their • consent) for another- of a different make, ls piano still their property or will I have to have the receipt altered, and the new name written thereon?— " Visitor." •A.: (1.) Only if he has obtained judgment against you, .when lt may be attached; (2) It would be advisable to have the receipt altered if. the first piano is specifically described therein. Q.: Next door neighbor has the front | and \side walks concreted td back of his houso. Tho natural fall is towards my property, which is about three feet lower than his. The concrete has been so laid that the' water flows into the lowest- corner at the back,, and thence into my place, and consequently m wet weather gets all the soakago. Is this legal, or should that water run into a storm water drain? — "Surface Water." A.: Your neighbor cannot be held responsible for the natural gravitation or percolation of surface water unless the construction, of the concrete paths can be said to constitute a means of artificial accumulation, which by overflowing causes you damage. Q.: Am a widow ,wlth 2 children; husband left house to me arid children; have no deeds. Can I get deeds from Public Trustee, who has them? — "Widow." -A.: Yes; unless he is mortgagee or acts for one or has a \ien on the documents for charges. Q.: Inquirer owns a plot of land and has for some time allowed people to make, use of it, by crossing, as a short out. He desires to kiy>w how long that may go on before people tan claim a right-of-way. — *'R~A;W." (Dunedin). A.: Depends on title of land. If land transfer land no length of time. If deeds land, 20 years uninterrupted use. Q.: (1) A and B erect fence between their properties, no agreement being made as to how many wires to be erected. After the fence is put up A approaches B and asks him to put on another three wires. Can he compel B to do so? (2) Can the* owner of a.t residential area compel his neighbor, a* dairy farmer, to do half the fence? (3) Can the owner of a leasehold property stop persona from going through his fences if they have other gatoways? — "Southland Reader." A.: (1) If the fence already erected Is a "sufficient fence" within the meaning of the Fencing Act, 1908, A cannot call upon B to do anything further. In any case unless otherwise agreed B would be liable only for half the coat, and unless a notice to fenco is served on him B cannot bo compelled to pay anything towards the cost of erection; (2) Yes; if ho complies with tho provisions of the Act; (3) Yes; certainly. t , Q,: Little girl is badly injured on sliding chute Council has erected on beach. Doctors say It will bo quite a time before sho ia ablo to get about again. Is the Council liable for this injury?— "H.B." A.: If the Council can be proved to have been guilty of negligence m allowing wood to project, it would be liable for damages. Negligence would probably be presumed m this case owing to the duty of care duo to young children. Q.: Eldest child (son, 24 years old) works at home most of time for his keep. On marrying he is turned out of home. Can he sue for wages for past years? In ovont of father's death, can he claim a share m farm If left out of will? — "Anxious." A.: (1) No; the son agreed presumably to work m return for keep; (2) if injustice done him by father m being left out of will and if not m good circumstances a claim would possibly lie under the Family Protection Act, 1903. Q: Is husband legally responsible for loan of money contracted hy wife? Is there any time limit m which to take action?— " Constant Reader." A.: Husband would bs llablo for money borrowed by wife to enable her to purohaso household necessaries. Q.: (1) I have two war bonds for £100 each, but hold only receipts for same. Not #uro-jas to the date of Isßuo, but think it was Septomber, 1917 (five years currency); To whom or to what offico should I make application for money now due? (2) If husband dies intestate, is wife legally entitled to one-third of his estate and children to remaining two-thirds? (3) If he has no children of his own. does his wife claim the whole of the estate? (4) Are children of wife by former marriage entitled to any portion of the estate? (5) Can wife claim maintenance for her children by a former murriage out of the estate? — "Portia." A.: (1) Inquire at any Post Office counter; (2) yes; (3) yea, subject to claims of mother, father, brothers nnd sisters if over £COO. If less than £500 widow receives tho whole; (4) yes. ruime share as children of second marriage; (f») sho will he personally responsible for their maintenance. [Owing to the wide uso that ia being m&do of this column by our many subscrlbbra wo uro compelled to hold over ft number of answers from week to week. All question** will l>o answered cs far ns possible- In rotation of receipt. Frivolities and questions net of g-menl interest will not bo answered.— Ed. ''Truth."]