SUPREME COURT.

Otago Daily Times, Issue 10761, 27 March 1897, Page 2

SUPREME COURT.

IN BANCO. Fiuday, MAKCn 26. , . (Before his Honor Mr Justice Williamo.) SIXCLAIR (APPELLANT) .Vf CLEAVE (BESfON TDHNT). ' An appeil from the decujon of the stipendiary magistrate at Invoreargill. Mr Sinclair (of Blenheim) appeared for the appellant, and Mr Sim (instructed by Kessra H ill Bros., of Invereargill) for the respondeat. Mr Sim took a preliminary objection that the appeal could not now be proceeded with, because the appellant had given notice to the respondent that he had abindoned his appeal ; and there was alto the farther objection raised that, as the judgment given by the magistrate was a judgment of nonsuit, tb*t was not a final determination of the case within the manning of the section of the; Magistrate's Court Act, which gives the right of appeal.^ > Mr Sinclair argued against the points raised. Mr Sim having replied, His Honor gave judgment as follows : Where there is an appeal on a quest-ion of law and fact under the Magistrate1!! Court Act it lies on the appellaut to act down the case for hearing; at some sitting of this court. In the present case the appellant did not do so. The caso on appeal was transmitted by the clerk of the Magistrate's Court to the registrar of this court; but the appellant did not sot it down for hearing—on the contrary, he telegraphed to the registrar not to set it down, and stated that the appeal was abandoned. ,' As the case had not been sst down for hearing in this court, and as no dayhtd been fixed in this court for hearing the appeal, it was quite corn--petent for the appellant to withdraw the appeal without the consent of the i-espondeut. By bo withdrawing the appeal he rendered himself liable to the costs which the respondent had incurred up to dato iv consequence of his proceediugs. Jfc would have been open to the 'respondent immediately after the notice of withdrawal to htfva gone before the migie.trate and have made an application for Isava to proceed on the judgment and h*ve costs under section 167 of the Magistrates' Courts Act. That''then was the right of the respondent. The respondent's solicitor appears to have taicen a preliminary step iv the assertion of that right by communicating with Mr Sim in Duuedin as to the amount of costs th&t had been already incurred. The withdrawal of'the notice of appeal w*s on the 22nd February ; on the'3fd of March the appellant gave notice that the J withdrawal w«8 under a mistake, and at tha name time he communicated with the registrar and said tbat the appeal would be proceeded with, and set down tha case for hewing. Nine days thei-etore elapsed between the. uotica of the withdrawal *nd the attempted recission of tho notice of withdrawal. Al-hough only a, comparatively HhorG period elapsed, yet, as w»s mid in Wntson v. Cave, the notice of recissioh might have bsiin after Wo months, and it is impossible to say what might have betn done by the respondent in the'meantime on the faith of such withdrawal., tltseems to me that the case practically comes within ■ the decision of Watson v. Cave; As I have said no content of the respondent to the withdrawal appears to me to be necessary. The fact of th--j withdrawal was communicated ■ tio the . reopoudeiit, and the withdrawal gave the' respondent certain rights. The "respondent was taking the preliminary steps to th* withdrawal of these- rights, and ha had been let alone would of course have proceeded to enforce them. The appellant, however, turns round and purports to rescind his former action. As was said by Lord Justice Jame? iv Wat«on v. i Cave, Iconiider ifc would j»e pesst'ini exempli if j tho cou:t was to allow sujh a withdrawal of appeal m that contained in the letter of the 22<id of February to be rescinded. Farther, I j think the other objection taken by Mr Sim is a ! fatal one. The present appe*l is on law and] fact. What the magistr&tß did irrlhe-eourfc ' below was to nonsuit the' appellant. Tfc| law I gives thfe pirty a right of appeal against any Snal determination or d'rectioa of the I court ia any • action ou • any matter of' j fact. Now, however the magistrate nisy hays expressed himself, or whatever took place at the trial, the fact remain* th'ifc tha judgment was a judgment of nonsuit, aad of that only. It is hopelens to contend that a judgmeut of nonsuit is a final determination of . fact. . It may be that a. judgment of nonsuit is a dual determination in tn *ction on a. point of law. Ido not kuow whether it U or not. Tha prafeut appall, however, is not on appoint of law, but on mixed questions of law and facts', and it ii brought before the court a< being tn I appeal of that nature. The *ppe*J does not, I think, come within the section giving the rightof appeal. I thiulr, therefore, that the preliminary objection mast prevAii, for the appellant h«* still his right of goi&g before the i magistrate again add ha»iug. - the c«.se re- ■ heard..: Why the nngintrate in the present oasedid not give judgment for the defendant instead of uousuitiug, I think, is pnzz'jug. I think, therefore, the appeal must be dismissed. Mr Sinclair *sked that costs should not ba allowed. , , • . ..-■..' Mr Sim replied, and . His Honor said he saw no reason why-the ! ordinary cole should not apply. The respondent; | had given notice »f his preliminary objections, and had hud to prepare to contest the case on its merits. Appeal dismissed with costs | (10 guineas). IN THE MATTER OF THE ESTATE OF DUNCAN MACDONALD (DECEASED), MARY MACDONALD j V. JANBr BOLTON AND OTHER'S. ' ' | _ An originating summons for the interpretation of a will. Mr Sim (instructed by Mr Fraser) appeared for the executrir and sole legatee, and the Hon Mr MacGragor for the next of kin. The question raised in this case was ono of j very general interest—viz., whether the moneys j payable upon a policy of: life assurance pass | under a general bequest in a will. The facts of i the case were that the deceased Doncau-Mnc- j donald'niado a will by whioh he bequeathed the ! whole of hia real and personal property abso- i lutely to bis wife, wbom he m»de his sble i executrix. A part of his esU'te consisted of an i insurance effected by him on his life with the ■ New ZeaUnd Government limnranee depart-: ment amounting to £200 17*. The question for '■ -decision w»s whether, id view of the provision to j section 33 of " The Life Asßin&uce Policies Act, i 1884," moneys pass under the bequa'st to tha widow. Toe (section referred to provide*: "No j policy . . . shall become available for debts < or legacies under a will, unless specially directed by such will." I Mr Sim sUted that the point in question in ! this case—namely, whether' the benefit of life I assurance policies passed under a gsneral bequest in a will—hud been decided by his I Honor iil the ease of in- re Tibbir, decided iv ! 1895 io favour of the policy mooeya pissing without; any specific bf-qae*sc. The only ; authority ou the other sido was a, dictum, Hot a judgment, by Mr Justice Deuuiston in re • Henderson, when he expressed the opinion that j moneys would not pass undor a geuersl bpquesf'i and that point now ctme up for discussion aod decision. The learned counsel argued the matter at some length, referring to a large number of cases, including some recent .Victorian decisions. •. ■ j The Hon. Mr HacGi'egor said the'-contention on the pare of the next of Itiu^had arisen directly out of the judgment of his Honor Mr Justice Deuniston which had been mentioned. Prior to that the general conxennus of opinion anaongfit the profession was that moneys arising Irom insurance of the lifu of ii testator did pasa under a gtweral bequest of the estate of a testator. That construction had l»eeu generally acted upon by the profession until thesd^cisiou referred to had been given, and the whole cisc for ths next of kin depended upon whether the court would follow that opinion or not. The matter at present was obviously in a very unsatisfactory position for the profession and for the pnblic. Ia the present will there was a general bequest of the residue and there was no specific biquest of the life assurance money, and therefore the next of kin, as he had the right to do in view of tho proposition—whether it was dictum or judgment—of Mr Justice Denniston, sat up a cUira to tbe insurance moneys. The matter was now to be Bp.ttleri. He harl nothing to add in the matter of l*w to the cnHes cittd by Mr Sim, who had quoted all the oases he (Mr MacGregoi) know of ai bearing on tha ,:oitit.

His Honor gave judgruonb «s follows :—ln this case testator devised nnd bequeathed the whole of his real and personal property of which he might die possessed to hia wife absolutely* and appointed her Role, executrix. Ab the time of the death of the • testator he was poasMced of certain policies of insurance. The question cow to bo decided is whether Ihfwe policies passed under tun will or whether, by virt.ue of the 33i'd section of " The. Life Mmwauce Policies Act, 1884," they puss to the iiexi; of kin. Tbe point raised i* si rabßt important one, ahd affects a number of wills which have Mready come into force through toe' death of testator b, and a number of estates which have been already distributed. Iv such, a case it seem« to mo that the principle of Mare decisis ought to bfc applied—that if thera is a decimor. of this court directly upon the point that decision ought to be followed until it is reversed by the Court of Appeil. Mer* expression of opinion in other judgments, which were nob absolutely necessary to the decision of the case, but which appeared to conflict with precise decisions on the very poiot, ou|;hfc. I think, to hs (iioivgardetl. The exact case onmo before the court here in 1895 iv the c^e of I'lbbit and Tibbifc. It was thera decided, a.ter argument, that a residue : wxa not a legacy^ within i,he meaning of seotion 33. There is no authority which conflicts with thai; decision. In the case iv rbe estate of Grosser, thero U he expression <,f opinion by Mr Justice Deuniatou to the following c-ffecc :—•• Ward againit Gray shows that residue v not a legacy in the ordinary sense of the term, though the person who takos it is properly called a residuary legatee, if that be no, the provisions of t!ia Life Asßurar.ca Policies Act exempting moneys trom liability to pay k-gacics would uot ■Mfzeb a residuary bequest," That espresßion of opinion

is, of course, directly in- favour of the correctness of the decisiou in Tibbit v. Tibbit. For the next of kin, however, the recant case decided by Mr Justice Denniston—the case in re Henderson—has been-cited.; : That case turned upon a different ppint, In the will which, was there under consideration there was no residuary bequest. ..All Ttbat Mr Justice Deunisfoq in his judgment,, in that case say 3 abaufc policies of Insurance passing under a residuary bequisfc is this. "I am inclined to' think it would not pass under a general bequest to the residue. That is the necessary result of the conclusion I cauie to in re Greeaon." That, of course, conflicts with the opinion which tho learned judge expressed in the caee in re Ureeson which I have just cited. We have therefore this : .that there is an express decision on the very.poiut, and that in two cases, in neither of which it wa3 necessary to decide the point, conflicting expressions of opinion have been made. In such circumstances, unless one is absolutelyconvinced that the law in the case of Tibbit and Tibbit was wrong the court ought to follow the caae of Tibbit and Tibbit. I am, however, by no means convinced that that decision was wrong; on the contrary, it seem 3 to m$ that a legacy is one thing, and s. residuary bequest in another. Iv common language residuary bequest is what remains after p»yment of the legacies. . I, think, therefore, if the point ig to be reconsidered it,must be reconsidered, by some higher court. "So long as the decision iq Tibbit, against Tibbit stands unre.yersed that. decision^ .oughb to be followed. Judgment accordingly,"and* order made that the policies pass' under the will. No costs.