a misconception as to his legal right. If he acted in good faith, and took the proper course to have his claim adjudicated upon, the appellant has no claim against him: Smith's Leading Cases(1); Wren v. Weild(2). If a person bona fide asserts a right, and goes to the proper Court to have it adjudicated upon, no action will lie against him: Horsley v. Style(3). Here the Magistrate has found that Kenealy acted in good faith. He took the proper course to have his claim adjudicated upon, and Cahill therefore has no claim against him.

Burton in reply.

CONOLLY, J.: —

Although this case is somewhat peculiar, I have had no difficulty in making up my mind as to how I should decide it.

The case is divided, naturally, into two parts. There is. first the appeal against the decision of the Magistrate so far as it affects Redmond, the bailiff; and, second, the appeal against the decision so far as it affects Kenealy, the interpleader claimant.

66

Taking first the case against Redmond, and that part of the decision of the Court below which affects him, I am of opinion that the Magistrate was right. He says, "The "defendant Redmond (bailiff) was within his duties, and nothing is shown against him." The ground of the claim against Redmond was that he refused to accept payment of the judgment debt and costs when tendered to him by Cahill, the judgment debtor, through Commons, Cahill's agent. From what appears in the case I thought it was intended to claim against him for the alleged half-starved condition of the horses when they were ultimately delivered up by him, but that appears to be abandoned, as the evidence shows that the horses really improved in condition after their seizure and during their detention. It appears to me that Cahill's object in making the tender and demanding possession of the horses was to defeat the interpleader action. I think that Redmond was justified in refusing to deliver up the horses, and that really no other course was open to him. Section 133 of the Magistrates' Courts Act says, "When goods “seized under a warrant of distress, or the proceeds or value "thereof, are claimed by any landlord for rent, or by any party not being the party against whom such process was

S.C.

1902.

CAHILL

v.

REDMOND.

66

66

"issued, the bailiff may, before or after the return of the warrant, and whether an action has been commenced against him for such seizure or not, obtain a summons to the party issuing such warrant and the person making such claim to appear at the Court nearest to the place where the goods are seized. On the hearing of such summons the Court may, for adjustment of such claim and the relief "of such bailiff, exercise all or any of the powers conferred by this Act, and may make such orders between the parties "as to any moneys paid into Court or secured, or any goods retained by the bailiff," &c. It is clear that the bailiff was right in issuing the interpleader summons. This being so, it was his duty to retain possession of the horses. Cahill knew that the interpleader summons had been issued, and two days later he tenders to Redmond, through Commons, the amount of the judgment debt, and demands possession of the horses. Suppose Redmond had accepted the money and given up the horses, and that Kenealy had proved that the horses were his-it is quite true that on the interpleader action being heard Kenealy failed to do this; but if he had succeeded he might have said to Redmond, "I don't want "the money; I want my horses." Cahill made no further attempt to recover the horses, and on the hearing of the interpleader action Kenealy, the claimant, failed. There was the statement of Kenealy that the horses were in his possession, and pretty well his own, and Redmond himself says that Kenealy told him that the horses were actually his. If he had notified Commons instead of advertising the intended sale by auction without informing him, it would perhaps have been better; but the appeal is not on this ground, but on the ground of his retaining the horses after tender of the money on the 28th of August. I am of opinion that Redmond acted within his rights, and the appeal, so far as it relates to him, must be dismissed, with costs, £10 108.

As to Kenealy, it cannot be doubted that he has caused all the mischief. It does not seem to be clear whether he claimed the horses as his own property or whether he intended to claim only a lien on them. Redmond says, "I "went to Kenealy, and gave him notice of seizure. He "declined to receive notice. He said that he was no agent; I that he was the owner of the horses. He told me the horses were his; that he would not deliver them to Cahill himself." But Kenealy himself says, "I said to Redmond, 'You had

66

"better not; they are in my possession, pretty well my "own.'" He says also, "I set telegram as my security.' However, it was owing to his claim that the interpleader summons was issued and the horses retained in the possession of the bailiff. By this means Cahill lost the benefit of his contract with McCabe. This loss sustained by Cahill was entirely due to Kenealy. The loss has been ascertained and agreed upon as amounting to £30. The appeal, so far as it concerns Kenealy, is therefore allowed, with costs, £10 10s. Judgment in the Magistrate's Court will be against Kenealy for £30 damages, and such costs as the Magistrate shall think fit to allow.

Leave to appeal refused.

Solicitors for the appellant: Burton & Hammond (Auckland.) Solicitor for the respondent Redmond: H. A. Sharp (Tauranga).

Solicitor for the respondent Kenealy: A. C. Lewis (Tauranga).

S.C.

1902.

CAHILL

V.

REDMOND.

In re ANDREWS.

"The Charitable Gifts Duties Exemption Act, 1883," Section 4-" The Charitable Gifts Act, 1901"-"The Deceased Persons' Estates Duties Act, 1881"-" The Deceased Persons' Estates Duties Act 1881 Amendment Act, 1885."

Notwithstanding the provisions contained in section 4 of The Charitable Gifts Act, 1901," that Act is not retrospective.

The duty of £3 per cent. additional charged on a stranger in blood in respect of the final balance of an estate under "The Deceased Persons' Estates Duties Act 1881 Amendment Act, 1885," is payable only in respect of the value of the interest of such stranger in blood, and the value of the life interest in such balance of a person not a stranger in blood must be deducted in order to ascertain the amount on which the £3 per cent. additional is payable.

CASE

ASE on appeal under section 17 of "The Deceased Persons' Estates Duties Act 1881 Amendment Act, 1885,"

On the 6th of January, 1896, Samuel Henry Andrews, late of Hatherleigh, in the County of Devon, England, made his will, the provisions of which, so far as they are material to the case, were as follows:

And as to my property situated in Princes Street Dunedin Otago New Zealand and the sections situated in Waihola and all other my property in

S.C.

IN BANCO.
DUNEDIN.

1902.

October 1, 3.

WILLIAMS, J.

S.C.

1902.

In re ANDREWS.

New Zealand to the use of my said wife and her assigns during her life without impeachment of waste and after her death upon trust to pay one half part of the rents of my said property in New Zealand after deducting one half part of all outgoings in respect thereof to my niece Clara King during her life for her separate use and after her death to her husband Joshua King during his life and as to the other half of such rents after deducting the remaining part of all outgoings in respect thereof during the lives or life of the said Clara King and Joshua King or the survivors of them upon trust to pay the same to the Mayor and Corporation of Dunedin to be by him and them applied from time to time as he and they may think best for the advantage of the Dunedin Volunteers and after the deaths of my said niece and her said husband as to the whole of my said property in New Zealand to the use of the Mayor and Corporation of Dunedin upon trust as to one half of the net rents for the benefit of the Dunedin Volunteers as hereinbefore mentioned and as to the remaining half upon trust to apply the same from time to time as the said Mayor and Corporation may think best for the advancement and benefit of the Town of Dunedin aforesaid and I declare that if at any time hereafter the Volunteers aforesaid shall be disbanded or cease to exist as a regiment then the whole of my said property in New Zealand shall be for the benefit of the said Town of Dunedin and be vested in the Mayor and Corporation of that town accordingly.

The testator died on the 16th of December, 1896; and the final balance of the real and personal estate of the said deceased within the Colony of New Zealand was, under the provisions of "The Deceased Persons' Estates Duties Act, 1881," certified by the Secretary for Stamps on the 30th of May, 1898, to be of the value of £4,680 14s. 11d. The widow of the deceased, to whom a life interest in his estate was bequeathed, died on the 26th of July, 1901. The duty on the estate was assessed by the Commissioner at £294 9s., which sum the executors declined to pay, on the grounds1, that the assessment was excessive; 2, that no duty was payable in respect either of the bequest to the Corporation of Dunedin for the benefit of the Dunedin Volunteers, or the bequest to it for the advancement and benefit of the Town of Dunedin, inasmuch as these bequests are exempt by force of "The Charitable Gifts Act, 1901"; and, 3, that no consideration was given to the fact that the legatees other than the Corporation are not strangers in blood. The Commissioner decided that, as "The Charitable Gifts Act, 1901," only came into operation on the 16th of October, 1901, the bequests were not exempt from stamp duty, the provisions of that Act not being retrospective, and also that there was no provision in "The Deceased Persons' Estates Duties Act, 1881," or its amendments for the postponement of the payment of duty in respect of the bequests until after the determination of the life estate of the other legatees. The Commissioner therefore declined to exempt the estate from the payment of duty.

S.C. 1902. In re

The questions for the opinion of the Court were as follows: -1. Is the assessment so made by the Commissioner valid? 2. If not, upon what basis should the assessment have been made? 3. Are the executors entitled to demand any refund ANDREWS. of duty in respect of the assessment; and, if so, what amount?

F. R. Chapman and O'Shea, for the executors of the will, the appellants:

The devise upon trust for the Mayor and Corporation of Dunedin, &c., is exempt from duty under "The Charitable Gifts Act, 1901." By section 4 of that Act it is provided that it is to form part of and to be read together with "The Charitable Gifts Duties Exemption Act, 1883," which is made retroactive to the 1st of January, 1883. Full effect should be given to the language used in section 4 of the Act of 1901, as any other construction would refine away the meaning and purpose of the enactment: The Canada Southern Railway Company v. The International Bridge Company(1). The expression used in the. Act of 1901 is still more explicit, and gives the Act the force of a declaratory Act; and declaratory Acts are held to be retrospective for all purposes: Jones v. Bennett (2). The value of the annuity given to Mrs. King ought to be calculated, and deducted from the amount on which the duty of £3 per cent. additional has been charged, and the interest given to the Corporation assessed at its present value: In re Gollan(3).

Fraser, for the Commissioner of Stamps :

The Act of 1901 would have to be read with the Act of 1883, even without section 4 of the former Act, and so read would not have been retrospective. Section 4 has no additional effect: In re Chapman (4). The Canadian case is peculiar, and does not support the dictum in Hardcastle's Statute Law(5). The Courts are reluctant to interfere with vested interests. By section 9 of "The Deceased Persons' Estates Duties Act, 1881," the duty is payable immediately upon affixing the certificate prescribed by section 6, but may be postponed under section 19 of "The Deceased Persons' Estates Duties Act 1881 Amendment Act, 1885." The duty therefore vested in the Crown before the Act of 1901, and if it had been paid the other side would have to contend

(1) 8 App. Cas. 723, at p. 727.

(2) 63 L.T. 705.

(3) 6 N.Z. L.R. 616.

(4) [1896] 1 Ch. 323; [1896] 2 Ch.

763.

(5) 3rd ed. 230.