COURT OF APPEAL

Otago Daily Times, Issue 21390, 18 July 1931, Page 14

COURT OF APPEAL

TARANAKI SCHOLARSHIP CASE STUDENT’S SUIT SUCCESSFUL. (Pee United Peess Association.) WELLINGTON, July 17. in the Appeal Court case Symc v. the tJniversity of New Zealand judgment was given for plaintiff in the relief claimed. The Chief Justice (Mr Justice Myers) delivering the judgment of himself and Mr Justice MacGregor and Mr Justice Kennedy, said that if the contention of the university were correct certain extraordinary results would follow. The senate would then have power to award scholarships arbitarily each year. The question whether a candidate who passed with credit was, or was not, to be awarded a scholarship would depend solely on the view that the senate for the time being took each year of the position on the list on which it would base its award, and the university statute might thereby be given different effects in successive years. He held, in his opinion, that the word “worthy ’ meant worthy from the point of view of character, and not the scholastic point of view. A further judgment in favour of the plaintiff (Syme) was delivered by Mr Justice Blair.

This was in the suit of James Wincote Syme, a student, of Hawera, against the University of New Zealand. Syme, in March last”, filed a statement of claim alleging that in 1929 he entered for the Taranaki scholarship; that he qualified in all respects and passed with credit the prescribed examination; but the university refused to award him the scholarship. He asked for an order that the university should award him the scholarship in question. By its statement of defence the university alleged that though Syme had passed with credit his examination, it did not consider he was worthy of a scholarship on account ©f his position on the list of candidates for examination. RATING OF CROWN LANDS |gT SCHOOL BOARD’S APPEAL ■ p DISMISSED. i r* (Pee United Peess Association.) WELLINGTON, July 17. The Southland Boys and Girls’ High School Board’s appeal against the Borough of Invercargill was dismissed, with costs. This was a case in regard to the rating law. The Invercargll Borough last year issued proceedings in the Magistrate’s Court at Invercargill claiming £59 7s Id from the board for borough and power rates in respect to six acres '25 poles of land owned by the board. This land was purchased for the purposes of a girls’ high school from income and endowments granted by the Crown, and was vested in the board. Prior to 19i.7 the land was improved by the board for the purposes of a sports ground, and had been held for that purpose ever since, the board having no other ground for the use of the pupils of the school in question. Judgment was given in the Magistrate’s Court in favour of the borough. The matter was heard by Mr Justice Kennedy in November last. His Honor upheld the decision of the magistrate, holding that general exemptions of the Crown from the provisions of the Eating Act did not extend so as to exempt the appellant board.

INTERPRETATION OF WILL • BAKER v. TAYLOR. (Peb United Pbess Association.) WELLINGTON, July IT. The court delivered judgment in the case seeking an interpretation of the will of Francis Smedley Taylor, late of Christchurch, farmer. The judgment was that the judgment appealed from should he reversed, with the result that the . question asked in the originating summons was answered by saying that onehalf of the residuary estate of the testator was to be diveded amongst the children and grandchildren per stirpes ' «f the testator’s late sister, Sarah Baker. The proceedings took the form of an originating summons filed for the interpretation of the will of Francis Smedley Taylor, late of Christchurch, farmer. The testator made his last will on July 11, 1929, being then upwards of 91 years of age, and seriously ill. He left all his property to trustees upon trust to invest sums of £4OOO and pay the income thereof to his nephew, Charles Taylor, baker, and his wife, or the survivor of them, during their respective lives. He directed that the residue be divided into two equal parts, one part to be divided between the children of his brother, Joseph Taylor, upon their attaining the age of 21 years, and the other part among the children of “ my late sister, Sarah Ann Baker, of Crytes, Derbyshire, England,” on their attaining the age of 21 years. The said sum of £4OOO was, on the death of the survivor Charles Taylor Baker, or his wife, to be paid out in the same manner as the residue. Testator had a sister, Sarah, whose married name was Baker, and a niece, Sarah Ann, who is the daughter of the sister Sarah. There was no evidence that the testator ever corres ponded with his sister, but there was evidence that the niece corresponded with her uncle up to the time of her death, in 1912. There being a doubt whether the provision of the testator’s will applied to his sister Sarah Ann Baker, or to his niece Sarah Ann Baker, an originating summons was filed for the answer of the Supreme Court. The matter came before Mr Justice Adams on December 10 last, when he held that the Sarah Ann Baker referred to in the will meant the niece Sarah Ann, whose children were entitled to benefit under the will. An appeal was brought from that decision.

WIFE’S APPEAL DISMISSED EFFECT OF SEPARATION AGREEMENT (Per United Press Association.) f ’ WELLINGTON, July 17. A marked division of opinion was Jnanifested by the court in delivering judgment in the divorce appeal Ansley v. Ansley. Separate judgments were written by the five members of the bench. The Chief Justice (Mr Justice Myers), Mr Justice MacGregor, and Mr Justice Kennedy expressed the opinion that the appeal should be dismissed, holding that the court was not bound to assume that the separation concerned had been brought about by the wrongful acts of the petitioner. Mr Justice Myers, in his judgment, taid: “I think the natural meaning of ‘separation’ (in section 18 of the Divorce and Matrimonial Causes Act, 1928) is a separation between the parties —that is to say, an actual separation. If, then, it appears on the hearing of r petition based upon a separation order that there was a separation in fact prior to the making of the separation order, in my opinion the court is not bound to dismiss the petition unless it is proved to the satisfaction of the, court that ■uch separation, in fact, was due to the

wrongful acts or conduct of the petitioner. This case emphasises the serious consequences that result from a separation order and the extreme care with which magistrates should exercise their jurisdiction to make, such orders.” Or. the other hand, Mr Justice Herdman and Mr Justice Blair held that the court could not go behind the maintenance order, but was bound to assume that there had been wilful failure to provide on the part of the petitioner. In conformity with the judgments of the majority, the appeal was dismissed, costs (£ls 15s) and disbursements being allowed the appellant. This was an appeal by Fanny Ansley, of Wanganui, a married woman, from the judgment of Mr Justice Reed, delivered at 'Wanganui in February last, granting her husband, Frederick ,William Ansley, a decree nisi for divorce. Anslev had filed a petition for divorce, alleging that he and his wife were parties to a separation order made by Mr J. S. Barton, S.M. Mrs Ansley admitted the order, but alleged that it bad been brought about by the wrongful acts and conduct of the petitioner. In his judgment Mr Justice Reed found that the separation order was an unusual one, and had not been made on account of the failure of the petitioner to provide adequate maintenance for his wife, but pursuant to a deed of separation under which payments had been kept up to date at the time when the order was made. He over-ruled the respondent’s contention that he must assume that the order was made on the grounds of failure to provide adequate maintenance, holding that the order itself afforded no evidence of wrongful conduct on the part of Ansley. A decree nisi was made. Mrs Ansley appealed from that decision.

SALE OF MOTOR CARS AN APPEAL DISMISSED. (Peg United Pbess Association.) WELLINGTON, July 17. The judgment of the court in the case of General Motors Acceptance Co-op. v. the Traders Finance Corporation was delivered by the Chief Justice (Mr Justice Myers), who held that the appeal should be dismissed with costs on the middle scale. . In this case General Motors Acceptance Corporation appealed from the judgment of Mr Justice Ostler in an action heard in December last in which it was the defendant and the Traders Finance Corporation was the plaintiff. In the statement of claim filed by the present respondent in the court below it was alleged that on August 28, 1929, J. M. Bishara, trading as Bishara Bros., Taumaranui, sold a Chevrolet car to W. J. Young under a hire-purchase agreement and that by subsequent assignment by way of mortgage executed on the same day Bishara assigned his interest in the agreement and in the car to the respondent company. Further, on August 17, 1929, Bishara sold a Pontiac car to one Heuheu, and on the same day again assigned his interest in the hire-purchase agreement under which the car was sold to the respondent company. All due notices of assignments were given. In September, 1929, the appellant corporation seized the two cars. Damages to the extent of £272 were claimed for conversion. In the statement of defence the respondent stated that the first car ha.d been sold under hire-purchase to S. Bishara, Ltd., Taumaranui, and as the purchase had never been completed the pi'operty therein never passed from the appellant company, which, threforc, was entitled to seize the car at any time on breach of agreement. As regards the second car it was stated that it had been purchased by the appellant from Bishara and in turn sold to one Hall under a hire-purchase agreement, the car remaining in Bishara’s garage and being finally sold by him to Heuheu. It was given in evidence in the lower court that, in October, 1927, General Motors, New Zealand, Ltd., had appointed S. Bishara, Ltd., its agents in the Taumaranui district. The company took the lease of a garage and ran the business for about a month and then passed it over to J. Bishara, who traded as Bishara Bros. It was run by him for nearly two years. For a time the business was highly successful, but in September, 1929, J. Bishara was adjudicated a bankrupt. Mr Justice Ostler found that with the concurrence and knowledge of the appellant J. Bishara had been put in the position of a mercantile agent in possession of cars and was allowed to hold himself out to the public as the sole agent of General Motors’ cars in his district, although the actual appointment had been to S. Bishara, Ltd. Consequently, by virtue of section 3 of the Mercantile Law Act assignments by Bishara were valid and effectual and the respondent company was entitled to the amount claimed as damages for the conversion. An appeal was brought from that decision.

FAMILY PROTECTION ACT AN APPLICATION GRANTED. (Peb United Pkess Association.) WELLINGTON, July 17. The judgment of the court in the Butchart v. Paxton ease was delivered by Mr Justice Kennedy. His Honor held that the New Zealand courts had jurisdiction to make an order under the Family Protection Act in respect to the immovables in New Zealand of a testator dying while domiciled abroad. In the opinion •of the court it could not be said in view of the amount which the widow received under the Scottish law that she had been left without adequate provision. So far as the daughter, Alice Butchart, was concerned an order was made that she should be paid out of the land of the testator situated in New Zealand the sum of £IOOO with interest at 6 per cent, until the date of payment to her. All the costs of the parties are to be taxed and paid out of the estate.

An application was filed, under the Family Protection Act, for the proper maintenance and support of Isabella Kinnear Butchart, out of the estate of her husband, David Butchart, who died at Dundee, Scotland, in January, 1928, leaving a will bequeathing the whole of his estate to his niece, Mrs Annie Paxton. He left surviving him his widow and seven children. Another child, James Butchart, died at Hamilton, Now Zealand, in August, 1927, leaving an estate valued at about £BOOO. The widow of the deceased David Butchart came to New Zealand in 1909 with several children to join James Butchart, who had settled at Hamilton and taken up a bakery business there. According to Mrs Butchart’s affidavit, the conduct of her husband forced her to leave him in 1897, and since that date she had neither seen nor heard from him, and had by her own endeavours and those of James Butchart, supported the younger members of her family. Her son, James Butchart, who died in August, 1927, died a widower and childless, his whole estate passing under the Statutes of Distribution to his father in Scotland. Shortly after her husband was made aware of his access to a fortune he made a will in favour of his niece. On his death his widow filed the proceedings now before the court, but she died before they came on for hearing, and her daughter, Alice Butchart, of Cambridge, spinster, was substituted as plaintiff in her stead. The question for the decision of the court was whether the New Zealand courts have jurisdiction under the Family Protection Act to make an order

in respect to a movable or immovable estate in New Zealand of a person who died leaving a will while domiciled in Scotland. VARIATION OF SENTENCE (Per United Press Association.) WELLINGTON, July 17. On May 1, 1931, Francis William Hackctt was sentenced at Wellington on a charge of breaking and entering to one year’s imprisonment with hard labour, and declared an habitual criminal. This afternoon the sentence w'as reviewed on his application by the Court of Appeal, and it was varied by striking out that part of the sentence which constituted him an habitual criminal.