NEW ZEALAND SOCIETY OF ACCOUNTANTS

Otago Daily Times, Issue 18545, 4 May 1922, Page 10

NEW ZEALAND SOCIETY OF ACCOUNTANTS

LECTURE BY MR S. SOLOMON. K.C. The first of a series of monthly addresses under the auspices of the, New Zealand Society of Accountants was held” in the board, room of the New Zealand Express Company; Limited, on Tuesday night. There were nearly 70 present and an . exceptionally able address on J«aw and Practice, by Mr S. Solomon, K.C., was keenly appreciated, Mr James Hogg (president of the Otago branch of the society), in introducing the speaker, expressed his thanks to Mr' Solomon and to other prominent members of the community who had promised to deliver lectures to the society during the year. He emphasised the fact that the educational side of accountancy studies was benefited to, a large extent by .these lectures, and remarked that the large -audience present bore testimony to the esteem in which Air Solomon was held ns a speaker, and augured well for the. success of the year's operations. He drew the attention of those present to (he lecture ! to be delivered by Professor Pringle on the subject “Recent Developments in Banking” on June 29 He also mentioned that on May 23 the society would conduct a speech competition for present students of the Commerce Faculty, and hoped that this also would be largely attended by members of the society. He pointed out that, according to statistics of last year; the Commerce Faculty was numerically the second strongest in the University. Mr Solomon, on rising to speak stated he had no desire to weary his hearers with a highly technical address, but desired to have a heart-to-heart talk with them. In the first place, ho pointed out that the. public in general indulged in reflections" on the wisdom or justice of the law.; ‘.but that it was the people who did not know who were fond of remarking that the law was an ass: but that after a- long experience lie had comp to the conclusion that it. was not the lawyers or the law who wore fools, but the clients who go to them. Speaking seriously, he pointed oitt that the reason people make this remark is that, on the surface, -judges’ decisions were sometimes apparently inconsistent with common, sense when they wore bound by - technicalities. In reality, however, law was based on common sense. The present law had come into being through long centuries, in the-case of the Transfer of Land Acts, for instance, dating back to the Norman Conquest. Statutes have been brought in from time to time to put right absurdities and anomalies, and Judges, in their decisions, and legislators in Parliament are still carrying on this work. There -were three main branches of Civil Law—namely: (1) Property. (2) contract, (3) tort, and ihe speaker gave instances in explanation of each. • One of the apparent peculiarities in Contract Law was that if. "A” owed “B” £lO and could not pay but offered him £5 in settlement, which he agreed to accept, the creditor immediately after receiving the £5 could sue for the remaining £5 (Cumber v. Wain), whereas in the case of a meeting of creditors at which the unfortunate bankrupt, offered to' pay, say. 5s 4d in rhe £. if. at the meeting, the creditors accepted, they could not afterwards sue for the balance. The reason for the apparent inconsistency was that in’ the first case there was no consideration, for the creditors’ promise of release; while in the second case there was. As an instance of 1 the good work which legislators are carrying on in removing anomalies of long standing, the quite unfair principle laid down in the case (Cumber v. Wain) quoted above has beeA done away w.itlv'in New Zealand within the last few years on the motion of the Hon. John MacGregor. M.L.C. ’Hie law in Now Zealand now, is that ..acceptance of payment in part is' valid if the acceptance is in writing. The' speaker strongly emphasised the fact that in law, as well as in accountancy and business generally, common sense played a very important part. In humorous vein, he mentioned that it seemed to him there was really no difference between lawyers and butchers in the opinion of their fellow-citizens except that, perhaps the latter were -thought to be honest. Tie appealed to the younger members of his audience to endeavour to attain to the highest positions in whatever walk of life t hey .took up; but that in their efforts to gain (heir ambitions thev should in the first place aim at trustworthiness He reminded them that anybody could get on for # a time, but if he Wished for lasting success it must be founded on straight going and upright conduct. “Always go straight.” said Mr Solomon. “If you don’t, then, if you are accountants. God help you; if you are lawyers. God help your clients.” Ihe question of juries was next briefly dealt with, these being quoted as “the bulwarks of Finland’s, liberty.” Aniongsl other reflections on the subject, the speaker stated that his opinions, as to the. jury system generally could be best summed up by the reflection that a counsel who had a good* case was always anxious to have it tried before the judge alone. Numerous peculiarities in existing law were then pointed out as being of interest to those present. Taking the law of contract, in an absolute sale of an ascertained article—namely, where the seller said, “I will sell you this chair,” and the buyer “I will buy it,” ownership passes at once. If a fire occur and the -chair is burnt, it is the buyer who suffers the loss, and he is still under the obligation to pay for' the chair. But if it be a sale of an unascertained article, the property does not pass until delivery, and in the event o'f a fire th e loss would be the seller’s. The origin of the Court of Equity was then traced. This was formerly a court under the control) of the King and quite outside the courts of law. The object of this court was to soften t-Ho harshness of the decisions of the Court of Law. ns flic King had power to over-ride a judgment given in the latter court. Later, the Lord Chancellor took , 'he place of the King, and the name of this court then became the Court of Chancery,“and was essentially the same as that which at present is commonly known as the Court of Equity. This court, though bound by rules, is at liberty to exercise a discretion. For instance, at- law, if a person having a right, if it was claimed within a certain time, and he allowed that time to expire without claiming it, time was said to be of the..essence 'of the contract and he "lost his right; hut iii equity, with certain it was only of the essence of the contract if it was made so, and if not, the right was not lost though the time expired. 'The (subject of leases was next considered. According to law, if a tenant did not comply with the terms of his-lease, the landlord might- step in and terminate the lease. The Courts "of Equity, however, decided that this also was too harsh a law, and in certain cases relieved the tenant. Where A had built the wall cf his house-on a neighbour’s property, at law; be might be compelled to pull it down; hut now, if he can satisfy the court that the wall was so erected without intention or gross negligence, it would not be necessary to remove it; but the neighbour would he entitled to compensation. (Still another illustration. In the sale of. a house, if the seller subsequently refused to fulfil his part of the contract, and the buyer could prove that the contract was actually in existence, he could either sue at law for damages or bring an action in equity to compel, the teller to carry out- the terms of the contract. The speaker stressed the point that in deciding whether to sue for damages or for specific performance, the buyer should always he influenced by the fact that if his claim for specific performance should fail, he ipso facto loses his right to sue for damages. It is. therefore, preferable in most cases to take the, line of least resistance and sue for damages. _ Waiver was the net point for consideration. The' principle of waiver /was that if a persomacquired a right to'nvoid a transaction against another, and knowing that ho had such a right, did any act which showed that he treated the act as, still subsisting,he lost his right to avoid it. So where a tenant with no power to sub-lease without the consent of the landlord, does so. tho landlord has the right to forfeit the lease, hut if the landlord takes rent after the suh-lease had come to his knowledge, he loses, the right to forfeit. The speaker wished to sa- that if the counsel cun satisfy the judge that his case is sound and inst, about 75 per cent, of his task is already completed. In all rases where the client can show that he had moral right on his side, be will get the benefit of the Justice of the law, unless the judge is bound bv some hard and f,st rule to decide against him. An instance of the absolute fairness of British law is accorded bv the law ns to Habeas Corpus. A .writ of ■ Habeas Corpus is one under which a nerson who deems himself unlawfully detained tnay claim ihat he be brought before a court to decide that he is or is not properly detained. If the Court of First Instance’decides that a person is not impronerly detained, he has the right of appeal. But on the other hand, if the lowest court decides that he is improperly detained, there is no further appeal, and the nerson is free. . The interesting subject of Bills of Lading was next referred to. A bill of lading is n document given by an owner of a vessel acknowledging the receipt of oirgo and an agreement to carry'that cargo from one port to another. A dean hill of lading is evithat there is nothing oa tho. outeide

of the case to suggest that the cargo is not in good order and condition when shipped. If when the goods arrive, the case is not apparently injured, hut the contents are damaged, it is the importer onwhom lies the onus of proving that the damage happened an the voyage. If, on the other hand, the case on arrival showed an injury, something must have happened on the voyage, and the onus in this case, therefore, lies on the ship-owner to prove that the goods were not damaged on the voyage. The speaker then showed what seemed to him an unfair state of the law in respect of pillage. The onus at present lies on the importer when goods ai'e proved to he short in cargo, to prove that the godtis were in (he case when shipped. It is. however, oitite apparent that this is practically impossible, and Mr Solomon stated that he was at present making an effort to “have this law amended so that production of original invoices shall he primn facie evidence that the goods were in- the case at the time of shipment. ' In conclusion, the speaker slated that even if this question of bills of lading were the only point remembered by his hearers, his efforts to interest them would not have been in vain., ( Mr .Tames Brown, in moving a vote of thanks to Mr Solomon, expressed his high appreciation of the excellent address. They were indebted to him for the exceeding interesting manner in wjiich he had presented his subject, but it was. only what they might have expected from Mr Solomon, . who was "possessed of the ability to give always the- sap and marrow of his subject. enlivened by touches of humour. Mr J. G. Paterson sreonoed the motion. The Chairman, in calling on the meeting to accord ;t hearty vote of th-anks to Mr Solomon, stated that the society had not only listened to an instructive address on law in many . branches, but had been rewarded by a rare exposition of humour and oratory. If the remainder of the year’s lectures proved to 'be as beneficial and as well -attended ns that of this evening, the success of the year’s programme was assured.