COURT OF APPEAL.

Otago Daily Times, Issue 20990, 1 April 1930, Page 13

COURT OF APPEAL.

A WILL DISPUTE. (Per Exited Press Association.) WELLINGTON, March 31. The Court of Appeal, consisting of the Chief Justice (Mr Justice Myers), Mr Justice Herdman, Mr Justice Blair, Mr Justice Smith, and Mr Justice Kennedy, was engaged to-day in hearing the appeal in the case of Isabell Sheppard Poison (of Wellington), widow, against Donald Murray Poison, Jessie Poison, and Elsie Torrence Bright, all of Wellington. The appellant is the widow of Angus James Neville Poison (late of Wellington), agent, who died at Auckland on December 4, 1927. By his will the deceased directed the sale of his various assets and, after certain small specific gifts to charities, the balance to be divided and one-fifth share given to the appellant. The defendants are each entitled to a similar one-fifth share, the other one-fifth to be given to charities. The value of the estate at the death of the deceased was approximately £5389. The appellant, in May last year, brought an originating summons under the Family Protection Act for further provision out of the estate. This was heard by Mr Justice MacGregor on July 4, 1929, and his Honor ordered that the appellant' should receive,'so long as she remains unmarried (in addition to that given by the will), an annual income on the one-fifth share given to, charities. The appellant now appeals on the ground that such an allowance was not sufficient.' Counsel for the appellant was Mr E. P. Hay; for the respondent, Mr T. C. A. Hislop. The hearing was adjourned till to-mor-row. ELTHAM DAIRY COMPANY v. JOHNSTON. ALTERATION OF ARTICLES. (Per United Press Association.) WELLINGTON. March 31. Argument in the ease, the Eltliam Dairy Company v, Johnston' was continued before the Court of Appeal to-day. Mr Chrystal, for the respondent, submitted that a company cannot alter its articles at is pleasure, inasmuch as these were binding on the shareholders. No distinction existed between the co-opera-tiyc dairy companies and other companies in this respect. The appellant company had so endeavoured to alter its articles, he contended, that article 55 was ultra vires, because it imposed an obligation to supply milk in addition to capital, and because it was outside - the scope of what may be the subject matter of the regulations made by the company , for its own internal government, insofar as it dealt not with the obligations of shareholders as shareholders, but as suppliers. It was also ultra vires because it was not within the scope of the memorandum, as the objects did not give the company power to purchase raw materials from shareholders. Further, article 55 being void as a regulation was also void as a contract, because it had not been established that the respondent had assented, to it. He also contended that if' the respondent was bound by article 55 _ then the contract contained in .that article was illegal and void, as being ,an unreasonable restraint of trade, in that it was unlimited in distance and time, and 1 did not fir a definite price, nor give a reasonable right of withdrawal. It was also void as a contract, because it imposed penalties for breach. According to the articles, once a shareholder commenced to supply there was no means by which he could withdraw. without incurring a penalty, unless he divested himself of his shares. The contract being of indefinite duration, there was no point nt which a shareholder could withdraw and avoid a penalty. The court reserved Its decision. A CONVICTION QUASHED. DECLARATION IN MARRIAGE BOOK. (Per United Press Association.! WELLINGTON. March 31. Reference was made in the Court of Appeal to-day to the conviction entered at Wellington by Mr Justice Reed against James William .Hudd, who was some time ago charged with making or causing to he made a false declaration for purpose of entry in a marriage book. Mr Justice Reed convicted the prisoner and reserved the question 'of law involved for , argument before the Court of Appeal. _ The Solicitor-general (Mr .A. Fair, K.C.) to-day informed the court that he could not' on any grounds support the conviction, and suggested that the court might make an order quashing the conviction. Such order was accordingly made.