THE ACTION AGAINST THE PRIMATE

Otago Witness, Issue 2779, 19 June 1907, Page 66

THE ACTION AGAINST THE PRIMATE

REMARKS BY THE JUDGE.

(Fhom Oub Own Correspondent.)

LONDON, May 10.

Last week I recorded a remarkable action at law against the Most Rev. the Primate of New Zealand (Bishop Nevill, of Dunedin). The case terminated just before the closing of the mail,- and I was therefore able only to note the result in a line or two. After the case for the defence had been heard, Mr Dicjcens, who represented the plaintiffs, was not called upon to reply. Mr Justice Grantham, in giving judgment, said that the matter in dispute affected very materially the character and reputation of two persons: On the one side, that of a solicitor who had carried on his practice for a considerable number of years, and, on the other side, that of a gentleman who occupied a high position in one of cur colonies. Mr Roberts, the solicitor, had been distinctly charged with fraud and conspiracy, and he (the learned judge) desired to say at once that he was unable to see the slightest foundation for such a charge being made against him, and he did not think that the defendant would have said what he did if he had not been advised that it was necessary for him to do so in order to raise a defence to the action which had been brought against him. Miss Penny had inherited a considerable sum of money from her grandmother, and, being an honourable and high-minded young lady, she did not forget the duty which she owed to her father, and gave him an annuity of £500, and it is creditable to the defendant that he also realised the duty which his wife -owed to her parents, and approved the transaction into which she entered. By her will in 1862 Mrs Nevill made a perfectly valid appointment of her property to her husband, and when she and her husband were about to start for New Zealand in 1870 it was clear that the defendant intended to make some provision for his wife's father in the event of his wife predeceasing him, because he wrote a letter in which he seid : " The question is whether any bequest from me- to Mr Penny or his family would be valid in case of anything happening to us." The original negotiations at that time no doubt related to the contingency of the defendant and hie wife losing their lives by shipwreck or other means on their journey to New Zealand ; but as time developed they realised that they ought to make provision for other contingencies, and it was clear that the bond which was eventually made never depended solely on their loss of life by shipwreck, ac the defendant now contended. With regard to Mr Roberta's share in the transaction of the bond, it was never concealed from the defendant that Mr Roberts was the family solicitor, and it was quite clear that the relationship between all the parties to the arrangement was as honourable as it possibly could be. and that the defendant was actuated by most proper motives in his endeavour to protect Mr Penny in case his wife should die before him. It was said that Mr Roberts had abused his trust, but, if the circumstances were looked at it was quite clear his conduot had nothing whatever to do with the defendant signing the bond. Nothing was concealed from the defendant, and the correspondence showed conclusively that the bond was not entered into owing to any pressure on the part of Mr Robert*, but from a desire on the part of the defendant to do justice to his wife's family. He (the learned judge) was glad to know that the defendant realised that he owed everything to his wife, and that he wanted to do what an honourable man should do. The defendant, on his part, said that he should like something to go to his family in the event of hia wife surviving him, and tor that purpose' it was arranged that hie wile should execute a bond for £5000 in favour of his family, and that, in order to make his wife's family secure, whatever happened, the sum of, £10,000 should go to Mr Penny or his representatives. It was quite clear that the bond was not a mere temporary arrangement, but was executed with the object of the sum mentioned therein going to the Penny family because it wae just and right that it should do «> No doubt Mrs Nevill made an appointment which might powibly be a fraud on the r>ower, but the present matter in dispute" had nothing to do with Mrs NoyiU, and therefore it was not for him (the learned judge) to determine whether It was a fraud on» the power or not That was altogether outside the present case. With regard to the contention that the bond was nothing more than an escrow, in his opinion tho bond was not given in order to be held subject to the. simultaneous deaths of the defendant and his wife, but was given for the purpose of providing for the wifee family if her husband survived her, and was intended to be a binding and operative bond. In his letter of June 21, 1870, the defendant 6aid that his wife would prefer that the sum of £10.000 should be given to her father and his heire and a c 6ign« absolutely, in l;eu of the annuity of £500 which she was making him. which showed that it was the defendant's desire above everything to protect Mr Penny and hie family. It seemed to him (the learned judge) that, if the defendant were to succeed in establishing that there had been a fraud on the power, the logical result would bo that tho appointment by Mrs Nevill was a fraud on the power, and that the donee under the power of appointment would lose the sum which had been appointed for his benefit ; but the appointment made by Mrs Nevill was a good "appointment, and could not be affected by anything that was done after its execution. In order to establish a fraud on the power a bargain must hare been made before the appointment was executed, but the appointment was made in 1862, and the bond was not entered into until 1870. In conclusion, the learned judge said that the defendant had failed to make out any breach of duty on the part of Mr Roberts, and there was no ground which would justify the bond being set aside. Mr Dickens. 6ta.ted that under Mr Penny a will Mr Roberts had only received a complimentary boquest of £20 for hie services as solicitor.

The amount to which the plaintiffs yrcro entitled iinuer -the bond being conditional on the amount to which the defendant had become entitled under his wife's will, and that amount not having boon yofc asorrtained, it was arraneed that tho terms of the judgment should be acrood upon by counsel, and should be mentioned later. On Monday the case ■nas again mentioned

in the King's Bench Division before Mr Justice Grantham and a epecial jury, when Mr Chester-Jones, on behalf of the plaintiffs, said that he had agreed with Mr Pitman ac to the form of the judgment — viz., that there should be a declaration that the defendant was liable to the plaintiffs under thi bond sued upon to the extent of the amount of the property left to the defendant at his absolute disposal by hw late wife's will and codicil, not exceeding the amount of £10,000 payable under the bond. Judgment for such Bum, when ascertained, with costs. Execution to be stayed until further order. Judgment was entered in accordance with the terms agreed upon. .